Hon'ble Dinesh Gupta,J.
( Delivered by Hon'ble Rakesh Tiwari, J) Heard Sri Anshu Chaudhary, learned counsel for the petitioner, Sri Yogendra Kumar Yadav, learned Standing counsel on behalf of the State of U.P. and perused the record.
This writ petition has been filed for quashing the order dated 30th March/1st April, 2002 and consequential order dated 4.4.2002 passed by respondent nos. 2 and 3 respectively.
The petitioner has prayed that the respondents may be directed not to recover alleged excess amount paid as salary to him from his salary.
The writ petition has been challenged on the ground that the impugned order has been passed in utter violation of principle of natural justice in as much as no notice or opportunity whatsoever was afforded to the petitioner before passing of the impugned order; that this order has been passed by ignoring the law laid down by the Apex Court as well as by this Court that once right accrues in favour of an employee, it cannot be taken away in such an arbitrary manner as has been done by the authority by the order impugned. It is stated that even if it is alleged that the employee was not entitled to it; even then the said order is against the law as it is well settled principle of law that the salary once paid to an employee cannot be recovered unless it is obtained by him by playing fraud or by misrepresentation upon the employer.
It is submitted that in the present case no such finding has been recorded by respondent no.2 in the impugned order, hence the amount paid to the petitioner in view of the order dated 11.6.2001 cannot be recovered and that in so far as the Government Order dated 13th May, 1999 is concerned, the financial and executive powers are vested in the Executive Director in so far as District Rural Development Agency, is concerned but as he had not passed the order therefore, it cannot be said to be bad on the ground that he was not empowered to grant promotional grade to the petitioner except the Commission. Even otherwise, the impugned orders are bad in law, arbitrary, unjust and illegal.
The facts culled out from the records in a nut-shell are that the petitioner was initially appointed on 3.5.1986 as Investigator (Technical) by the District Magistrate, Aligarh in District Rural Development Agency (hereinafter referred to as 'DRDA'). His services were regularized vide order dated 11.2.1987. However, on bifurcation of the District Aligarh in the year 1997, a new District namely, Hathras was carved out. On account of creation of new District Hathras, the petitioner was transferred on the same post of Investigator (Technical) by the District Magistrate, Aligarh vide order dated 3rd July, 1998 to the District of Hathras which he was holding in District Aligarh.
By G.O. dated 2.12.2000 it was provided that those employees who put in 8 years of continuous service would be placed in Time Scale. This Government order is appended as Annexure-3 to the writ petition. In view of the fact that the petitioner had completed 8 years of service he was granted Time Scale/Additional Increments by the Project Director vide his order dated 22nd July, 1995. Since it was also provided in the aforesaid Government order dated 2.12.2000 that those employees who were in Time Scale under the Government Order dated 8.3.1995 would be placed in promotional pay scale on completion of 14 years satisfactory service. the Chief Development Officer/Executive Director, District Rural Development Agency, respondent no.3, vide his order dated 16.3.2001. This order was subsequently modified vide order dated 11.6.2001 granting promotional pay scale to the petitioner w.e.f. 3.5.2000 in furtherance of the Government order dated 10.4.2001. Accordingly, the petitioner was given promotional pay scale, which is the date on which he had completed of 14 years satisfactory service.
By the impugned order dated 30th March/1st April, 2002 the Commissioner, Rural Development, U.P. set aside the order dated 11.6.2001 passed by the Chief Development Officer/Executive Director, respondent no.3. He has further directed that the amount which the petitioner has received w.e.f. 3.5.2000 in pursuance of the order dated 11.6.2001 granting him promotional pay scale be recovered from the salary of the petitioner. Pursuant to thereof the petitioner was communicated that recovery is to be made from his salary, which has been paid to him allegedly in excess, in the promotional pay scale.
Counsel for the petitioner submits that the grievance of the petitioner is that he was entitled to the promotional pay scale w.e.f. 3.5.2000, hence salary of the promotional pay scale granted to him from the aforesaid date could not have been recovered by the State Government without affording him an opportunity of hearing and such action was against all cannons of principle of natural justice. He has placed before us the impugned order to establish that it has been passed primarily on the ground that Chief Development Officer/Executive Director had no power to grant promotional pay scale and he has exercised powers not vested in him. The petitioner in this regard has relied upon the order dated 13th May, 1999 in support of his case which was passed by the Secretary, State of Uttar Pradesh. It provides that the Executive Director of the DRDA is competent to exercise the financial as well as administrative powers. A copy of this order is appended as Annexure-9 to the writ petition.
It is then submitted by him that since right has accrued to the petitioner having been granted Time Pay Scale according to his entitlement, therefore, question of recovery of alleged excess in the order of recovery impugned in the writ petition is not only a misnomer. According to him, as nothing in excess of salary to which he was entitled to having been paid to him the impugned order suffers from the vice of being in violation of principles of being illegal, arbitrary and against the principles of natural justice.
Learned counsel for the respondents submits that Chief Development Officer/Executive Director, respondent no.3 was not empowered or authorize to grant Time Pay Scale to the petitioner w.e.f. 3.5.2000 i.e. the date on which he alleges to have become entitled to after putting 14 years of service, therefore, the impugned order for recovery from the petitioner has rightly been passed.
After hearing counsel for the parties and on perusal of record we find that it has no where been disputed in the counter affidavit that the petitioner was not entitled to the promotional pay scale w.e.f. 3.5.2000, which was granted to him by the Chief Development Officer/Executive Director, respondent no.3 vide order dated 30th March/1st April, 2002 on serving the department for 14 years of continuous and satisfactory service. The claim of the petitioner in the nature of promotion by selection, rather is a claim where he became entitled to Time pay scale automatically on putting 14 years satisfactory service as per G.O. dated 2.12.2000.
In our considered opinion, the Chief Development Officer/Executive Director could have passed the order as he was exercising the powers parallel to that of the District Magistrate, who is the appointing authority of the district. In case any irregularity or an illegality was committed by the CDO in granting time scale, the Commissioner could have very well ratified the same as grant of time pay scale to the petitioner w.e.f. 3.5.2000 was automatic on putting 14 years of satisfactory service as provided in G.O. dated 2.12.2000 but there was no occasion for its cancellation.
From the record also it appears that no action has been taken by the State Government against the CDO/Executive Director, respondent no.3 for alleged exercise of power not vested in him. Even if the Commissioner would have passed the order granting Time Pay Scale to the petitioner he would also have granted it w.e.f. 3.5.2000 i.e. the day the petitioner had completed 14 years of continuous and satisfactory service. It is not the case of respondents that petitioner was not entitled to Time pay scale, w.e.f. 3.5.2000, rather the stand of respondents is that CDO/ Executive Director could not have passed the order and it ought to have been passed by the Commissioner. Since in any case the date of grant of pay scale would be 3.5.2000, there is no question of any excess payment of salary to him which is sought to be recovered by the impugned order. Issuance of order for grant of Time pay scale in pursuance of the G.O. dated 2.12.2000 was only formal and the Commissioner if vested with power for granting Time Pay Scale ought to have ratified the order of the CDO instead of cancelling it and issuing order of recovery which appears to be illegal on face of it as the petitioner was not being paid extra salary or any amount which he was not entitled to receive the same, therefore, recovery could not be made from him.
Nothing has been placed before us by the respondents that Commissioner has power to grant Time Pay Scale to the petitioner and not the Chief Development Officer/Executive Director and Head of the Department.
For all the reasons stated above we quash the impugned orders dated 30th March/1st April,2002 and dated 4.4.2002 passed by respondent nos. 2 and 3 respectively. However, in the facts and circumstances of the case noted above and in order to bring finality to any irregularity in the orders passed by the CDO/Executive Director, we further direct the Commissioner to ratify the order with effect from the date the appellant has completed 14 years of satisfactory service.
The writ petition is allowed. No order as to costs.
Dated 16.2.2012 CPP/-