JUDGMENT Ashok Bhushan, J.
1. Heard counsel for the petitioners and Shri Vijendra Singh Yadav, Additional Chief Standing Counsel appearing for the respondents. Counter and rejoinder affidavits have been exchanged and with the consent of the parties, the writ petition is being finally disposed of.
2. By this writ petition, the petitioners have prayed for a writ of certiorari quashing impugned fixation order dated 20.9.2001. A writ of mandamus has also been sought commanding the respondent to pay the salary to the petitioners as per fixation order dated 28.1.1998. It is further prayed that the direction be issued to the respondents restraining them from making, any recovery pursuant to the impugned order.
3. Brief facts necessary for deciding the writ petition are; All the petitioners were working as work charge employees in the Irrigation Department of the State. All the petitioners are working as Class-IV employee on different post. The petitioners were appointed on various date between 1.8.1977 to December 1979. All the petitioners have also been regularised in the regular establishment of the Irrigation Department from different dates in the year 1996- 1997. On the basis of recommendations of Vth Pay Commission, the pay scale of the Work Charge employees was revised with effect from 1.1.1996 vide Government Order dated 26.8.1999. The Government Order dated 26.8.1999 also provided a-maximum ceiling of salary with regard to work charge employees which maximum ceiling had been fixed from time to time by various earlier government orders. Apart from these work charge employees on the basis of Vth pay Commission, the pay scale of all other Government employees in the irrigation department were revised The Government orders were issued for fixation of salary in the revised pay scale dated 23.12.1997 and 31.12.1997 providing the manner and procedure of fixation of salary in the revised pay scale. The petitioners salary was fixed by order dated 28.1.1998 on the basis of Government Order dated 31.12.1997 and 21.12.1997 with effect from 1.1.1996. The petitioners were being paid salary in accordance with fixation dated 20.1.1998.
4. The petitioners were subsequently also regularised on Class-IV establishment with effect from different dates in the year 1996-1997. After their regularisation the petitioners are getting their salary in the revised pay scale and there is no dispute in the present writ petition with regard to fixation and payment of salary to the petitioners after they have been regularised in Class-IV establishment. It appears that on the basis of audit objection, the petitioner's salary were re-fixed with effect from 1.1.1996 by an order dated 20.9.2001. By subsequent order dated 20.9.2001 the petitioners salary was re fixed from 1.1.1996. The salary fixed by subsequent order dated 20.9.2001 is less than the salary which was earlier fixed by order dated 28th of January 1998. After the said fixation, the petitioner submitted a representation dated 11.10.2001 to the Executive Engineer objecting to re fixation of their salary and reduction of their salary with effect from 1.1.1996. The petitioner objected to re-fixation dated 20.9.2001 and prayed that their fixation as made on 28.1.1998 be allowed to continue.
5. The learned Counsel for the petitioner challenging the impugned order submitted that petitioners' salary was rightly fixed on 28.1.1998 in pursuance of the Government order dated 23.12.1997 and 31.12.1997 He further submits that with regard to fixation of salary of Work Charge employees, there was no other Government Orders and the same manner and procedure is applicable with regard to the fixation of salary of work charge employees. He further submits that in arty view of the matter, no recovery can be made from the petitioner since there was no fraud or mis representation at the instance of the petitioner in their fixation dated 20.1.1998 and the fixation dated 20.1.1998 was made by the respondent themselves applying the Government Order dated 23.12.1997 and dated 31.12.1998. The counsel for the petitioner further submits that several employees who were also work charge employees and were regularised along with the petitioners, no recovery has been directed where as from the petitioners the recovery has been directed, the said averments have been made in paragraph- 7 of the rejoinder affidavit.
6. Shri Vijendra Singh Yadav, learned Chief Standing Counsel appearing for the respondents refuted the submission of the counsel for the petitioner and submitted that subsequent fixation has rightly been made. He submits that with regard to fixation of salary of work charge employees another Government Order dated 26.8.1999 has been issued and the salary of the work charge employees was required to be fixed in accordance with the Government Order dated 26.8.1999 and in view of the Government Order dated 26.8.1999, the fixation of the petitioners was rightly modified. The learned Counsel for the respondents farther submits that petitioners who were working as work charge employees before regularisation in the year 1996-1997 they were not entitled 40% of their basic which was payable to the regular government employees. He further submits that the salary of the work charge employee was subject to maximum ceiling as prescribed by the government order dated 26.8.1999. The counsel for the respondents further submitted that petitioners were not even government employees, hence they were not entitled for the benefit of fixation which was applicable to the government order dated 23.12.1997 and 31.12.1997.
7. I have considered the submissions of the counsel for the petitioners and perused the record.
8. There is no dispute between the parties that petitioners were working as work charge employees oft 1.1.1996 and they were regularised in regular establishment of the irrigation department from different dates in the year 1996- 1997, The issue which has been raised in the writ petition is with regard to fixation of salary of the work charge employees with effect from 1.1.1996. The fixation of the petitioners salary was made by order of the Executive Engineer dated 20.1.1998. Copy of which order has been filed as annexure 6 to the writ petition. The fixation was made from 1.1.1996 in the revised pay scale which was applicable to the work charge employees with effect from 1.1.1996. It is not the case of the parties that salary of work charge employees was not revised from 1.1.1996. Salary of regular employees; working in the Irrigation Department as well as work charge working in the Irrigation Department was revised from employees 1.1.1996. The question arises only of fixation. The Government "Order dated 23.12.1997 and dated 31.12.1997 have been issued by the State Government for fixation of salary of the Government employees. The said government orders are on the record. The Government Order dated 23.12.1997 was issued for fixation of salary to the government employees with effect from 1.1.1996 in pursuance of recommendation of the Vth Pay Commissioner which was approved by the State Government by the government order dated 23.12.1997. The salary of petitioners was also fixed, in accordance with the government order dated- 23.12.1997 and 31.12.1997. There was no other government order at the time when petitioners salary was fixed apart from the aforesaid government order dated 23.12.1997 and 28.12.1997. The submission of Additional Chief Standing Counsel that petitioners were not government employees cannot be accepted. Petitioners were working in the work charge establishment of Irrigation Department. The petitioners were very much the government employees may be working on the work charge establishment. The appointments were made by Government Officers, their salary was paid through state fund and this submission has no substance that they were not Government employees, Much reliance has been placed on the Government Order dated 26 8.1999 which according to learned Counsel for the respondents provides for different manner of the fixation of salary of the work charge employees. I have perused the government order dated 26.8.1999. The said government order provides for maximum ceiling of salary of work charge employees. No other specific provision in the government order is made that work charge employee shall not be entitled for the dearness allowance or Interim relief or their salary shall be fixed in a particular manner. The counsel for the respondent has submitted that the government order dated 23.12.1997 specifically provided that 40% of salary will be added with regard to government employees which provisions is not available for the work charge employee as per government order dated 26.8.1999. There is no specific mention in the government order dated 26.8.1999 that work charge employees shall not be entitled, for 40% of salary. However, without entering into any further discussion on the said issue there are two reasons on which I am satisfied that respondents are not entitled for recovery of any amount from the petitioner. Firstly, the government order dated 26.8.1999 was issued subsequent to the fixation which was already made on 28.1.1998. The dispute of payment of salary in the present case relates only to the period dated 1.1.1996 till regularisation of the petitioners i.e. between 1996 to 31.12.1997. At the time when fixation of the petitioners was made the government order dated 23.12.1997 and dated 31.12.1997 were the only government order providing for fixation and the salary of the petitioners was fixed in accordance with the said government order. There is no case of any mis-representation on part of the petitioners in getting their salary fixed. Hence, no recovery can be made from the amount which was already paid to be petitioners in pursuance of the fixation made by the Executive Engineer dated 28.1.1998. This view of mine finds support from the Division Bench judgment of this Court in Writ Petition No. 31466 of 2003 Naseem Ahmed v. State of U.P. and Ors. decided on 28.10.2005. The Division Bench of this Court relying on two apex court judgments have laid down-
From the aforesaid decisions of the apex court, it is clear that if any amount has been, paid to the petitioner by the respondents and there was no misrepresentation made by the petitioner then the amount already paid could not be recovered. There is no material on the record to establish that any misrepresentation was made by the petitioner. The payment of arrears of salary has been made by the Assistant Soil Survey Officer on his own after fixing the pay of the petitioner. We are of the opinion that in view of the law laid down by the apex court the respondents could not recover the amount of arrears of salary already paid to the petitioner on 1.2.2003 in pursuance of the order dated 9.12.2002, therefore, the impugned order dated 28.4.2003 and 18.6.2003 cannot be maintained.
9. With regard to the maximum ceiling as provided by the government order dated 26.8.1999, a recent judgment of this Court has taken the view that putting of maximum ceiling of payment of salary to the work charge employee is arbitrary. The said view has been taken by this Court in Writ Petition No. 7201 of 2004 (s/s) Yogesh Prasad and Ors. v. State of U.P. and Ors. decided on 6.5.2005. However, the learned Counsel for the respondents has fairly conceded that in the present case, there is no dispute regarding the ceiling as prescribed by the government order dated 26.8.1999.
10. It is further to be noted that while reducing the fixation made on 28.1 1998 petitioners were never put to any notice or opportunity. The order for reduction of their fixation as ex parte made. The Apex Court in Bhagwan Shukla and Ors. v. Union of India 1994 SC AIR 2480 has held that reduction of salary with retrospective effect cannot be made without giving any opportunity to the employee.
11. In view of the foregoing discussion, the petitioners have made out a case for grant of relief. The order dated 20.9.12001 annexure- 8 to the writ petition is quashed. The respondents are directed not to recover any amount already paid to the petitioners pursuance of the fixation dated 28.1.1998. The parties Shall bear their own cost.