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2025 DIGILAW 889 (ALL)

Arun Pratap Srivastava v. State of U. P.

2025-07-01

AJIT KUMAR

body2025
JUDGMENT : Ajit Kumar, J. 1. Heard Sri Raj Kumar Upadhyay, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State respondents. 2. Petitioner, who has retired on 31st March, 2017 as Senior Assistant from the office of District Magistrate, Varanasi, is aggrieved by the order dated 15th May, 2017 passed by the Collector, Varanasi disputing the grade pay of Rs.4600 with an additional one increament given to the petitioner on 22nd December, 2011 reducing his pay to Rs.50,500/- on the date of his superannuation as against Rs.52,000/- as per the chart issued from the office of Collector, Varanasi under his signature and appended as Annexure - 13 to the writ petition. 3. Two fold arguments have been advanced by learned counsel for the petitioner: (a). Such back date correction in the pay grade could not have been done by the respondents in view of the provisions as contained under the Government order dated 16th January, 2007, which only permits any correction in matter of pay fixation up to 34 months prior to the date of retirement; and (b). The order impugned has been passed after the petitioner attained the age of superannuation and that too without giving any notice much less a show cause notice and hence order has rendered unsustainable for want of compliance of principles of natural justice. 4. In support of first point learned counsel for the petitioner has relied upon the authority of Supreme Court in the case of Sushil Kumar Singhal Vs. Pramukh Sachiv Irrigation Department and others , 2014 (16) SCC 444 . 5. A counter affidavit has been filed in the matter on behalf of the State respondents in which plea has been taken vide paragraph 3 that in terms of the Government order dated 8th December, 2008 only fresh appointee was entitled to grade pay of Rs.4600 in the pay band of Rs.12540 totalling to Rs.17140 as on 1st January, 2006 and since petitioner had already been in service as on 8th December, 2008, he could not have been given benefit under such Government order. 6. 6. A further plea has been taken vide paragraph 5 of the counter affidavit that order under challenge was only a consequential order as by way of information given to the petitioner on the basis some letter issued on 16th March, 2017 by Additional Director, Treasury and Pension, Varanasi, which formed the basis to examine original records and also consideration of letter written by the petitioner dated 14th June, 2017. The letter was taken into consideration and records were further thoroughly examined and a detailed report was submitted on 18th May, 2018. He has placed before the Court the letter of the Additional Director, Treasury and Pension, Varanasi dated 16th March, 2017 brought on record as Annexure - 11 to the writ petition as well as the report dated 18th May, 2018 brought on record as Annexure - 17 to the writ petition. 7. It is next argued by learned Additional Chief Standing Counsel that an employee is entitled to pay scale and pay grade assigned for the post in question and for any wrongful pay fixation, a mistake due to inadvertence, he cannot walk away with the higher pay scale as ultimately it is a loss caused to public exchequer and nobody stands any disadvantageous position for any correction of pay scale if carried out rightfully. However, as far as Government order as well as judgment of Supreme Court is concerned, learned Additional Chief Standing Counsel submits that these are the question of law that can be examined and the matter can be disposed of in the light of the authorities cited and testing upon the same the pleadings raised by the respective parties in this case. 8. Having heard learned counsel for the respective parties and having perused the records, I find the order impugned to be absolutely silent as to any opportunity being afforded to the petitioner to offer his explanation qua the proposed action of correction in the pay grade. The order simply records that petitioner's pay fixation and pay grade Rs.4600/- along with additional increment was malicious and hence deserved correction. 9. The order simply records that petitioner's pay fixation and pay grade Rs.4600/- along with additional increment was malicious and hence deserved correction. 9. Insofar as the first point raised by learned counsel for the petitioner is concerned that no such correction could have been ordered in the pay scale of the petitioner altering the pay grade back from the year 2011 in the light of the Government order dated 16th January, 2007, I find substance in the argument so advanced by learned counsel for the petitioner for the reason that Government order is very specific on the point that after the employee has attained the age of superannuation, no such correction should be considered beyond the period of 34 months. Relevant part of the Government order dated 16th January, 2007 is reproduced hereunder : 10. The interpretation of the Government order was done by the Supreme Court in its judgment of Sushil Kumar Singhal (supra), in which Supreme Court has observed that since the Government has itself laid down the principle that no such correction can be permitted beyond the period of 34 months after the employee has attained the age of superannuation and, therefore, applying the said principle in this case I also find that any correction in the pay grade awarded to the petitioner in the 2017 would definitely amount to the altering the pay grade beyond the period of 34 months. The relevant part of the judgment of Supreme Court is reproduced hereunder: "11. The submission made on behalf of the learned counsel appearing for the respondent that the appellant would be getting more amount than what he was entitled to cannot be accepted in view of the policy laid down by the Government in G.O. dated 16th January, 2007. If the Government feels that mistakes are committed very often, it would be open to the Government to change its policy but as far as the G.O. dated 16th January, 2007 is in force, the respondent-employer could not have passed any order for recovery of the excess salary paid to the appellant or for reducing pension of the appellant." 11. If the Government feels that mistakes are committed very often, it would be open to the Government to change its policy but as far as the G.O. dated 16th January, 2007 is in force, the respondent-employer could not have passed any order for recovery of the excess salary paid to the appellant or for reducing pension of the appellant." 11. Insofar as the argument advanced by learned Additional Chief Standing Counsel that the order was passed by the competent authority citing the infirmity in the pay grade awarded to the petitioner in the year 2017 vide order dated 16th March, 2017, does not disclose any reason, I find that the order only refers to certain dates and pay grades but does not record any reasons as to why such award of pay grade was bad or was malicious. The order dated 16th March, 2017 is reproduced hereunder: 12. Upon a bare reading the aforesaid letter cum order issued by the Additional Director, Treasury and Pension, Varanasi dated 16th March, 2017 it becomes absolutely clear that there was no application of mind by the authorities concerned and this was being done only when the pension papers were being finalized. 13. This kind of conduct amounts malice in law because it has set into motion an inquiry into the pay grade awarded to the petitioner which was not at all required without there being any plausible reasons or explanation offered in the letter. 14. The authority sub-ordinate to the Additional Director, Treasury and Pension, Varanasi immediately acted upon the letter and submitted a report regarding incorrect pay fixation. The report only refers to the letter dated 16th March, 2017 and then records same pay grade and pay scale which according to the report petitioner deserved and which is verbatim the contents of the order impugned. The relevant part of the report dated 18th May, 2018 is reproduced hereunder: 15. From the perusal of the aforesaid report it is clearly established that there has been no application of mind at all. 16. The relevant part of the report dated 18th May, 2018 is reproduced hereunder: 15. From the perusal of the aforesaid report it is clearly established that there has been no application of mind at all. 16. In the considered view of the Court, any action that results in adverse civil consequences and that too when it is attributable to alleged malicious exercise, it must be pre-visited with a notice to the concerned employee to give him an opportunity to offer his explanation and hence on the touchstone of the principles of natural justice the order dated 15th May, 2017 directing for pay correction of the petitioner's pay grade and pay scale cannot be sustained in law. Such an action, therefore, automatically has got rendered arbitrary and so also hit by Article 14 of the Constitution. The second submission is also liable to be upheld and is hereby upheld. 17. In view of the above, therefore, the correction of pay grade and consequential pay scale of the petition with effect from 2011 under the order impugned cannot be sustained in law. The order dated 24th July, 2018 is, accordingly, hereby quashed. Petitioner's pay grade and pay scale stands restored as were prior to correction. Petitioner shall be entitled to all consequential benefits accordingly and payment of difference of pension between what he has been paid and what he ought to have been paid taking his final pay at the time of retirement as Rs.52,000/- with basic pay of Rs.12540 in the grade pay of Rs.4600 totalling to Rs.17,140/- as basic pay, shall be made. 18. The difference shall be computed and arrears shall be paid to the petitioner within a maximum period of two months and any delay in such payment would result in accrual of interest at the rate of 12% from the date of expiry of the two months of presentation of certified copy of this order till the actual payment is made. 19. The writ petition is succeed and is, accordingly, allowed.