Court No. - 6
Case :- WRIT - A No. - 21739 of 2016 Petitioner :- Manhgu Ram Yadav And 7 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ashutosh Mishra,Sudhanshu Pandey Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioners and the learned Standing Counsel for the State respondents.
The eight writ petitioners here were Court Clerks in the Consolidation Department. They are aggrieved by the order dated 7 January 2016 in terms of which certain recoveries of additional emoluments paid while in service and which was sought to be recalled has been denied by the respondents taking the position that the judgment rendered by the High Court on Writ Petition No. 44801 of 2000 (U.P. Chakbandi Lekhpals Sangh Vs. State of U.P. And Others) would not apply since the same stood restricted in its application to Chakbandi Lekhpals alone. The dispute itself has arisen consequent to the grant of selection grade to the petitioner with effect from 19 July 1982. By a Government Order dated 11 February 1994, it was provided that selection grade was liable to be granted to employees only with effect from 1 May 1984 and if in case it be found that employees have been paid prior thereto and in excess, the additional emoluments be recovered. The U.P. Chakbandi Lekhpals Sangh challenged the consequential recoveries which were ordered and undertaken pursuant to the aforementioned government order. A learned Judge of the Court dealing with that petition proceeded to allow the same with the following observations:
"This court in identical matter decided on 23.11.2004 Awadh Nath Tripathi Vs. Chief Development Officer, Panchayat, Sant Kaqbir Nagar and others 2005(5) AWC 4055 has taken the same view and has concluded that in view of aforesaid legal position, it is not open to the respondents to recover any amount from the petitioner on the fact mentioned in the impugned order that salary of petitioner was wrongly fixed in the selection grade.
Consequently, in the present case also directives, which has been issued by the respondents to recover the amount from petitioner is legally not sustainable and it is hereby quashed and set aside. In case respondents have recovered the aforesaid amount, then in that event respondents are directed to return the aforementioned amount within period of three months from the date of production of certified copy of this order.
Next question is that as to whether the State Authorities can re-fix the salary of the petitioner if there had been a mistake in fixation thereof, for the purposes of revising his pension etc. In the opinion of the Court if there has been a mistake in the matter of calculations/fixation of salary of an employee it is always open to the State Authorities to correct the mistake. However, the correction can only be made after affording opportunity of hearing to such employee and no ex parte order can be passed. The re-fixation of salary, after such correction, would take effect only from the date of the correction.
With these observations, writ petition is allowed."
Despite the said decision holding the field the respondents in terms of the impugned order have proceeded to deny the benefits of that decision to the petitioners on what in the considered view of this Court is clearly a specious and untenable ground.
Undisputedly, the recoveries initiated against the petitioners was traceable to the very same government order namely 11 February 1994. The decision of this Court rendered on the petition of the U.P. Chakbandi Lekhpals Sangh had clearly concluded the entire controversy with the Court holding that the recovery of excess emoluments could not have been effected. The ground taken in the impugned order namely that the said decision would apply only to Chakbandi Lekhpals is noticed only to be rejected since the Government Order dated 11 February 1994 was ex facie applicable not just to Chakbandi Lekhpals but to all other categories of posts in the Consolidation Department including court clerks.
From the above conspectus of facts, it is evident that the impugned order is wholly unsustainable and the petitioners have been unnecessarily forced to litigate in respect of a right and issue which already stood concluded in their favour.
Accordingly and for all the aforesaid reasons, this writ petition shall stand allowed. The impugned order dated 7 January 2016, is hereby quashed. The petitioners shall be entitled to all consequential reliefs.
Order Date :- 27.2.2019 Arun K. Singh (Yashwant Varma, J.)