Gopi Chand & Another vs State Of U.P. & Others
2017 Latest Caselaw 5629 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 2.8.2017
 
Delivered on 24.10.2017
 
Case :- WRIT - A No. - 21145 of 2012
 
Petitioner :- Gopi Chand & Another
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Neeraj Pandey,Ashok Khare
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This writ petition has been filed by the petitioners, who are two in number, praying for a writ in the nature of certiorari quashing the Government order dated 14.11.2011 and the consequential order issued by the Milk Commissioner dated 30.3.2012.

2. A further prayer has been made for issuance of a suitable writ not to effect recovery in pursuance of the impugned orders and not to reduce salary / pension payable to the petitioners and to make payment of salary and pension every month without making any deduction therefrom.

3. Initially, the writ petition was filed only with the aforesaid prayers. Later on, by means of an Amendment Application which was allowed on 7.4.2014 the petitioners have also prayed for a writ in the nature of certiorari quashing the Government Order dated 20.8.2004 (Clause 6 thereof).

4. The petitioners have claimed the aforesaid reliefs on the ground that initially the petitioners were appointed as Milk Supervisor in 1975 and 1973 respectively. Later on, they were granted promotion as Milk Inspector and further promotion as Senior Milk Inspector. Petitioner no.2 has retired from service on 30.6.2011, whereas the petitioner no.1 was still working as Senior Milk Inspector at the time of filing of the said writ petition and was due to retire in July 2013.

5. It is the case of the petitioners that they were given certain benefits under Government Order dated 3.6.1989, which was admissible to all employees, who were working in pay scale less than Rs. 3500/- as on 1.1.1986. Later on, the said Government Order dated 3.6.1989 was further modified by Government Orders dated 8.3.1995 and 5.2.1997. The petitioners on the basis of said Government Orders were entitled to selection grade on completion of ten years of service and next promotional pay scale on the complication of six years of satisfactory service thereafter. The petitioners were also entitled to one additional increment after completion of five years of satisfactory service, after completion of fourteen years as aforesaid and the second promotion pay scale on completion of a further five years of satisfactory service i.e. twenty four years of service in terms of Government Order dated 2.12.2000.

6. It is the case of the petitioners that by orders dated 28.5.2010 and 14.6.2010, the petitioners were sanctioned the promotional pay scale of Rs. 8000/ - 13500/- w.e.f. 1.6.2006 and 20.8.2004 respectively, by Additional Milk Commissioner. The said pay scale was revised to Rs. 15600 - 39100/- by orders dated 25.8.2010 and 17.6.2010. Till the date of retirement of the petitioner no.2 in the year 2011, the said benefit of promotional pay scale continued to be given.

7. It is the case of the petitioners that on 14.11.2011, an order was issued from the Dairy Development Department alleging that in pursuance of the Government Order dated 2.12.2000 and its clarification dated 20.8.2004, the Senior Milk Inspector can be given only next higher pay scale i.e. Rs. 5500 - 9000/- and not the next promotional pay scale on completion of fourteen years of satisfactory service as Senior Milk Inspector and the petitioners and two others have been wrongly given Rs. 8000 - 13500/- which is the promotional pay scale. It was directed that rectification be made immediately and recovery be ensured of excess payment make to such employees.

8. In compliance of the orders passed by the Government, the Milk Commissioner issued the order dated 30.3.2012 cancelling the earlier orders of May-June 2010 and instead of first promotional pay scale of Rs. 8000 - 13500/- only next higher pay scale i.e. Rs. 5500 - 9000/- was made admissible to the petitioners and two others w.e.f. the year 1996. The Regional Dairy Development Officer, Gorakhpur, Meerut and Agra were directed to rectify the pay fixation orders and ensure recovery of excess payment made to such employees.

9. It has been alleged in the writ petition as amended that 57 Milk Inspectors including the petitioners had been given the first promotional pay scale of Deputy Dairy Development Officer of Rs. 5500 - 9000/-, but action was taken only against the petitioners and two others. Out of these 57 Senior Milk Inspectors, 43 Senior Milk Inspectors had already retired from service, whereas some were still working on the promotional pay scale.

10. It has been further averred that the Government issued the order dated 14.11.2011 on the basis of Government Order dated 20.8.2004, which is only a clarificatory order issued by the State Government and which gives a wrong interpretation of the earlier Government Order dated 2.12.2000 in clause VI thereof. Since a right was created in pursuance of earlier Government Order dated 2.12.2000, and the petitioners had been given promotional pay scale as a consequence thereof, the clarificatory order could not have been issued on 20.8.2004 and the said order dated 20.8.2004 was liable to be quashed also.

11. A counter affidavit has been filed by the State respondents in the writ petition as well as amendment application, in which the State respondents have referred to paragraph 4(1) of the Government Order dated 2.12.2000, wherein it was stated that for determining promotional pay scale, the promotional post will be such post which as per Service Rules was to be filled up on the criteria of seniority subject to rejection of unfit. The State respondents have referred to a Government Order dated 20.8.2004, which is only clarification issued with respect to posts which can be said to be a promotional post and where criteria of seniority subject to rejection of unfit can be relied upon. It has been clarified that a post which has to be filled up through selection on merit or which requires higher qualification besides seniority, shall not be considered as promotional post.

12. It has further been averred in the counter affidavit that as per the U.P. Dairy Development Service Rules, 1981 recruitment to the post of Deputy Dairy Development Officer shall be done by promotion and by direct recruitment, as far as possible 50% of the posts in a cadre shall be held by promotees, and 50% of the said posts were to be filled up by direct recruitment. On 50% posts for promotion the criteria would be meant and not seniority subject to rejection of unfit.

13. The petitioners have filed two rejoinder affidavits to the said counter affidavits filed by the State respondents, wherein they have reiterated their contention that it was not open for the Government to issue the Government Order dated 20.8.2004 and have also reiterated that several similarly situated Senior Milk Inspectors were given first promotional pay scale attached to the post of Deputy Dairy Development Officer in the years 1988, 1991, 1992 and 1993 to 1995 and they continued to enjoy the first promotional pay scale after their retirement and no rectification / refixation of their pension was made by the department.

14. At the time of argument, Sri V.K. Singh learned senior counsel assisted by Sri Neeraj Pandey for the petitioners, argued on the basis of Government Orders, which have been filed as Annexures to the writ petition that the clarificatory Government Order dated 20.8.2004 had taken away a right which had already accrued to the petitioners by means of Government Orders dated 3.6.1989, 8.3.1995, 5.2.1997 and 2.12.2000.

15. It was also argued that a promotional post is available from the cadre of Senior Milk Inspector to the post of Deputy Dairy Development Officer and wherever such promotional post is available, as per paragraph 3(ix) and paragraph 3(x) of the Government Order dated 3.6.1989, the next promotional pay scale would be admissible and not the next higher pay scale.

16. It has also been argued by Sri V.K. Singh that similarly situated employees are still continuing in the promotional pay scale of Rs. 5500 - 9000/-, whereas the petitioners have been singled out and their pay scales / pension have been reduced arbitrarily, without giving them any opportunity of being heard.

17. Sri Anil Kant Tripathi, learned standing counsel appearing for the State respondents, however has relied upon the Government Order dated 2.12.2000 to state that only in those cases where promotional post was available and was to be filled up on the criteria of seniority subject to rejection of unfit, could there any grant of promotional pay scale. If the Service Rules, for example, the U.P. Dairy Development Service Rules of 1981, did not prescribe the criteria of seniority subject to rejection of unfit for promotion from Senior Milk Inspector to the post of Deputy Dairy Development Officer, instead, provided for selection on the basis of merit, then promotional pay scale was wrongly given. The Government was entitled to direct for rectification of the administrative mistake and re-fixation of pay / pension and recovery of excess payment made to the petitioners.

18. Having heard the learned counsel for the parties and having gone through the Government Orders relevant for the purpose and the Service Rules, this Court finds that in the Government Order dated 3.6.1989 paragraph 3(ix) provides for grant of one increment on completion of ten years of satisfactory service w.e.f. 1.1.1986 and for grant of next promotional pay scale / next higher pay scale after completion of six years of satisfactory service to all Government servants, who were working in a pay scale less than Rs. 3500/- as on 1.1.1986 and had been regularised.

19. However, the first promotional pay scale shall be granted only in cases, where promotional post was available in the cadre. If no promotional post was available, then the next higher pay scale alone would be given to an employee. Thus as per Government Order dated 3.6.1989 after sixteen years of service as Senior Milk Inspector, only the next higher pay scale was to be made admissible. For determination of next higher pay scale, reference could be made to the Annexure of the Government Order dated 23.12.1997. The Government Order dated 23.12.1997 has been filed by the petitioners at page 102 and its Annexure at page 104, shows that after the pay scale of Rs. 5000 - 8000/-, the next higher pay scale would be only 5500 - 9000/- and not Rs. 8000 - 13500/- which was wrongly made admissible to the petitioners.

20. The other three Government Orders on which the petitioners have placed reliance have also been filed. The Government Order dated 8.3.1995 filed at page 60 of the paper book clearly shows that those persons, who were working in pay scale less than 3500/- would be given one additional increment after completion of eight years of service in selection grade instead of ten years of service, and they would be entitled to next promotional pay scale / next higher pay scale, as the case may be, on completion of another six years of service i.e. the total of fourteen years of service. The conditions as mentioned in paragraph 3(x) of the Government Order dated 3.6.1989 has been repeated in paragraph 1(iv) of the said Government Order, which also clarifies that those for posts / cadres, which have no promotional posts available, the incumbents would be entitled only to the next higher pay scale as personal pay scale.

21. The Government Order dated 5.2.1997 merely provides therein that time scale / pay scale shall be given on completion of eight years + five years + five years + five years of service instead of eight years + six years + five years + five years of service i.e., it has provided that selection grade shall be admissible on completion of eight years of service, next promotional pay scale or next higher pay scale shall be admissible on completion of six years of service i.e. on completion of fourteen years of service in one post, and one additional increment shall be admissible after five years of service therefrom i.e. on completion of nineteen years of service and the second promotional pay scale or next higher pay scale shall be admissible after completion of twenty four years of service.

22. The Government Order dated 2.12.2000 was issued after general pay revision was given by the Government Order dated 23.12.1997. It was reiteration of the earlier policy with regard to the eight years + six years + five years + five years as mentioned in the Government Order dated 8.3.1995 and Government Order 5.2.1997, and taking into account the revision in pay scale, such benefit was admissible to all employees working in a pay scale less than Rs. 10500/-.

23. In paragraph 4(1) of the said Government Order conditions for grant of benefits as mentioned in paragraph 1(ii) and 1(iv) of the said Government Order i.e. for grant of additional increment in first promotional pay scale, and second promotional pay scale were given and its specifically referred to the Service Rules applicable in each case, and mentioned therein that "promotional post" for incumbents would be a post as mentioned in the Service Rules, which was to be filled up by promotion only on the criteria of seniority subject to rejection of unfit.

24. This Government Order dated 2.12.2000 therefore clearly provided the criteria for considering a post as "promotional post" and also provided therein that for all others posts / cadres where no promotional posts were available, only the next higher pay scale instead of the next promotional pay scale was to be given on completion of fourteen years and twenty four years of service, as the case may be.

25. The Government Order dated 20.8.2004 was clarificatory in nature and issued only to answer the various queries made by various departments relating to difficulties, which they had faced in the application of Government Orders dated 8.3.1995, 5.2.1997 and 2.12.2000.

26. In the said Government Order, it has been clarified that since the benefits of nineteen years of service has only been introduced by the Government Orders dated 8.3.1995, 5.2.1997 and 2.12.2000, the additional increment in the first promotional pay scale / next higher pay scale shall be admissible to an incumbent only after 1.3.1995 and not before, and that similarly, the benefit of second promotional pay scale / next higher pay scale would be admissible only after 2.12.2000 and not before that.

27. The Government Order dated 20.8.2004 has further clarified that for calculation of fourteen years or nineteen years or twenty four years of service on one post, to enable grant of the time scale / pay scale, regular service rendered in one department by an incumbent appointed by the Appointing Authority in compliance of the procedure prescribed for the same in the Service Rules alone, shall be taken into account. Service rendered on different posts carrying similar or equal pay scale in the same department shall not be counted unless such posts belonged to a single cadre and were transferable interse and only one single seniority list was maintained for the said post.

28. In clause VI to the Government Order dated 20.8.2004 in response to a query as to what post shall be considered as promotional post, to determine the pay scale of "promotional post", it was clarified that only those posts in the cadre, which according to the Service Rules, are to be filled up by promotion on the criteria of seniority subject to rejection of unfit, shall be considered as "promotional post". All other posts wherein in besides seniority, selection was on merit or higher qualification, or where suitability was an additional criteria for selection, shall not be considered as "promotional post" and in such cases where, there is no "promotional post" available as per criteria for promotion in the Service Rules, only the next higher pay scale shall be admissible as per paragraph 4(1) of the Government Order dated 2.12.2000.

29. It is evident that the petitioner no.1 was appointed as senior Milk Inspector in the year 1990 and petitioner no.2 was appointed as Senior Milk Inspector in 1989. The petitioners were given one additional increment in the year 2000 and 1998 respectively, but were wrongly given next promotional pay scale in the year 2010. Since, under the Service Rules of 1991, the petitioners would only be promoted on the basis of merit from U.P. Dairy Development Subordinate Service to U.P. Dairy Development Service as Deputy Dairy Development Officer on the basis of selection on merit by the Commission, they were not entitled to promotional pay scale of Rs. 8000 - 13500/-, but were entitled to only next higher pay scale of Rs. 5500 - 9000/-.

30. With respect to the Government Order dated 14.11.2011 and consequential correction made in their pay / pension by order of Commissioner dated 30.3.2012, and no opportunity being given to the petitioners in this regard, it is always open for the Government to rectify an administrative mistake where the error in the interpretation of Statutory Rules / Government Orders is apparent on the face of the record.

31. The Hon'ble Supreme Court in the case of Ram Chandra Tripathi Vs. U.P. Public Services Tribunal & 4 others 1994 (5) SCC 180 has observed that the appellant therein was made permanent on the post of Junior Engineer, but subsequently it was discovered that the appellant's confirmation was contrary to a prohibitive interim injunction issued by the Allahabad High Court in a third party's writ petition. Hence in order to rectify the mistake, the respondent was de-confirmed by the impugned order, which treated his service as temporary. The Supreme Court observed "............. in our view, in such circumstances, the appellant was not required to be given any opportunity of being heard for correcting such mistake, because there was no occasion to take one view or the other in the matter of correction of said mistake, on the basis of representation to be made by the appellant ---------------"

32. In the case of Indian Council of Agricultural Research & another Vs. T.K. Suryanarayan & others 1997 (6) SCC 766, the Supreme Court observed that an erroneous promotion given departmentally by misreading of the Rules contrary to a judicial order did not confer any right on another similarly placed persons to similar benefit. The Supreme Court observed "---------- Even if in some case, erroneous promotions had been given contrary to the said Service Rules and consequently such employees have been allowed to enjoy the fruits of improper promotion, an employee cannot base his claim in law courts for promotion contrary to the statutory services rules. Incorrect promotion either given erroneously by the department by misreading of the Service Rules or such promotion given pursuant to judicial orders contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory service rules----------------- statutory service rules must be applied strictly in terms of interpretation of said Rules".

33. In the case of Maharashtra State Seeds Corporation Ltd. Vs. Hariprasad Drupadrao Jadhao & another 2006 (3) SCC 690, the Supreme Court has observed that although the Enquiry Officer had recommended certain punishment, and on the basis of said recommendation the Managing Director had issued show cause notice to the first respondent, and the first respondent filed his reply to the same, another show cause notice in supersession of the earlier show cause notice by the Managing Director could be issued on the ground that the charges which were proved against the first respondent, were serious in nature and having regard to the gravity thereof, punishment of dismissal could be imposed.

34. The Hon'ble Supreme Court held that "--------An Administrative order can be recalled. A mistake can be rectified. The Managing Director of the Corporation as a disciplinary authority did not lack inherent jurisdiction in relation thereto...............". "----------- as the Enquiry Officer had not jurisdiction to recommend any punishment to be imposed on the respondent by the disciplinary authority, the disciplinary authority acting thereupon at the first instance, could have corrected his mistake as the same was apparent on the face of the record. He, therefore, did not commit any illegality in issuing the show cause notice ---------------" "-------------He might have committed a mistake in issuing the first show cause notice but by reason thereof he cannot be held to he wholly precluded from issuing a second show cause notice as thereby he intended to rectify the mistake committed by him-------------".

35. In the case of Union of India & others Vs. Bikash Kuanar 2006 (8) SCC 192, the Supreme Court has observed thus "It is trite that if a mistake is committed in passing an administrative order, the same may be rectified. Rectification of a mistake, however, may in a given situation require compliance with the principles of natural justice. It is only in a case where the mistake is apparent on the face of the record; a rectification thereof is permissible without giving any hearing to the aggrieved party-------------".

36. In the case of Vividh Marbles Private Ltd Vs. Commercial Tax Officer 2007 (3) SCC 580, the Supreme Court has held thus "If the Authority committed a mistake in referring to 1987 Scheme and allowed 100% exemption in terms thereof, the State cannot suffer thereby. The Statutory Authorities are entitled to rectify their mistake when such mistakes are apparent on the face of the record even no opportunity of hearing is necessary--------------".

37. The petitioners' contention that the Government could not have issued a clarificatory Government Order dated 20.8.2004 is also misconceived and liable to be rejected.

38. The Hon'ble Supreme Court in the case of R.R. Verma Vs. Union of India 1980 (3) SCC 402 has observed in paragraph 5 thus:-

"The last point raised by Shri Garg was that the Central Government had no power to review its earlier orders as the rules do not vest the Government with any such power. Shri Garg relied on certain decisions of this Court in support of his submission: Patel Narshi Thakershi Vs. Pradyumansinghji Arjunsinghji ; D.N. Roy Vs. State of Bihar and State of Assam Vs. J.N. Roy Biswas. All the cases cited by Shri Garg are cases where the Government was exercising quasi judicial powers vested in them by statute. We do not think that the principle that the power to review must be conferred by statute either specifically or by necessary implication is applicable to decisions purely of an administrative nature. To extend the principle to pure administrative decisions would indeed lead to untoward and startling results. Surely, any Government must be free to alter policy or its decision in administrative matters. If they are to carry on its their daily administration they cannot be hide-bound by the rules and restrictions of judicial procedure though of course they are bound to obey all statutory requirements and also observe the principles of natural justice where rights of parties may be affected. Here again, we emphasise that if administrative decisions are reviewed, the decisions taken after review are subject to judicial review on all grounds on which an administrative decision may be questioned in a Court. We see no force in this submission of the learned counsel. The appeal is, therefore, dismissed."

39. As a consequence of the facts and circumstances mentioned herein above, the writ petition is liable to be dismissed and is hence dismissed, in so far as challenge to the Government Order dated 14.11.2011, the consequential order dated 30.3.2012 and the clarificatory Government Order dated 20.8.2004 are concerned.

40. However, in view of law settled by the Hon'ble Supreme Court in State of Punjab & others Vs. Rafiq Masih (White Washer) 2014 (8) SCC 883, no recovery can be made from the petitioners for excess payment, if any, made to them due to wrong interpretation of Government Order dated 2.12.2000 by the Authorities concerned.

41. This Court while entertaining the writ petition had already granted an interim order on 1.5.2012 against the recovery proposed to be made by the respondents. It is clarified that rectification of administrative mistake in interpretation of Government Orders can be done, and the pay fixation orders issued after rectification of mistake are valid, but the further mention therein of recovery to be made from the petitioner for excess payment, shall stand quashed in view of law settled in Rafiq Masih (supra).

Order Date :- 24.10.2017

Arif