Court No. - 37
Case :- WRIT - A No. - 14303 of 2004 Petitioner :- Sudheer Messey Respondent :- State Of U.P. And Others Counsel for Petitioner :- R.S. Singh,Suresh Pratap Singh,Surnedra Prasad Shukla,V.P. Gupta Counsel for Respondent :- C.S.C.
Hon'ble Abhinava Upadhya,J.
Heard learned counsel for the petitioner and the learned Standing Counsel appearing for the State-respondents.
By means of this writ petition the petitioner has challenged the order dated 17.1.2004 by which the promotional pay grade granted to the petitioner in the pay-scale of Rs.4000- 1000-6000/- has been cancelled.
The facts of the case are that the petitioner claims himself to be retrenched employee of U.P.Paschimi Divisional Kshetriya Vikas Nigam Limited, Bareilly. The said Corporation was wound up in the year 1992. The petitioner claims that he was appointed in the aforesaid Corporation on 11.8.1987. Taking a humanitarian view that all such employees of such kind of Corporation were treated to be retrenched employee and were directed to be adjusted in Government Departments. Pursuant thereto in view of Government Order dated 11.11.1993 the petitioner was adjusted in the Department of Fisheries, Bareily, U.P. on 8.11.1994 and the petitioner joined the post on 30.11.1994.
It appears that the said absorption in the Government Department was pursuant to Government Order dated 11.11.1993, which clearly stipulates that such absorption in Government Department would be on a post to be filled by direct recruitment and all the Government Rules with regard to pay, pension and seniority etc. would be applicable from the day the employee joins the Government Department. It appears that the petitioner was granted time scale upon completion of eight years of service on 11.8.1995.
Admittedly, the petitioner joined the Government Department in 1994 and, therefore, by any stretch of imagination the petitioner could not have been granted time scale in 1995. As such, the said order was a mistake and, therefore, by order dated 17.1.2004 the time scale as well as the promotional pay scale granted to the petitioner was cancelled.
Against the said order dated 17.1.2004 the petitioner filed this writ petition and has an interim order operating in his favour.
On the earlier occasion, learned Standing Counsel was granted time to seek instruction in the matter as to whether the petitioner is still getting the promotional pay scale in view of the stay order granted by this Court but no answer is forthcoming.
In the counter affidavit filed by the State Government it has clearly been stated that according to Government Order dated 11.11.1993 the petitioner's services in the Government Department would be treated from the date he joined the post and all the benefits will accrue from the date he joined the post and therefore, in 1995 he could not have been given the promotional pay scale upon completion of eight years of service as he joined only on 30.11.1994.
Learned counsel for the petitioner, however, submits that the petitioner did not mis- represent or stake any claim for promotional pay scale, it was an error of the authorities themselves for which the petitioner cannot be blamed and the petitioner being lowly paid employee in view of the decision in State of Punjab and others Vs. Rafiq Masih (White Washer) etc. reported in JT 2015 (1) SC 95 no recovery can be made.
I have considered the submissions of the learned counsel for the petitioner and the learned Standing Counsel appearing for the State-respondents.
Indeed in view of the decision in the case of Rafiq Masih (Supra), if the petitioner was not in any manner involved or manipulated in any way in getting the promotional pay scale then extra amount paid to the petitioner cannot be recovered. However, the petitioner cannot be allowed to continue in promotional pay scale, which was rightly withdrawn by order dated 17.1.2004.
In this view of the matter, I do not find any error in the order impugned. However, if any recovery is being made from the petitioner pursuant to the impugned order dated 17.1.2004 in view of the decision of Supreme Court in the case of Rafiq Masih (Supra) the authorities cannot proceed further. It is, however, made clear that the recovery of the amount that has been stayed by this Court at the present moment is only upto 17.1.2004 and any extra amount paid to the petitioner prior to this date would not be recovered, if any proceeding has been initiated to recover the same. However, the petitioner would be entitled to the pay scale according to his date of joining which is on 30.11.1994 and all the consequential benefits treating his appointment on 30.11.1994.
With the aforesaid observation/direction, the writ petition stands finally disposed of.
Order Date :- 21.8.2019 SKM