Allahabad High Court
Smt. Kiran Devi vs State Of U.P. Thru. Prin. Secy. ... on 25 April, 2023
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 8
Case :- WRIT - A No. - 3227 of 2022
Petitioner :- Smt. Kiran Devi
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt .Of Social Welfare Lko .And 3 Others
Counsel for Petitioner :- Anuj Kudesia
Counsel for Respondent :- C.S.C.
Hon'ble Dinesh Kumar Singh,J.
1. Heard Sri Anuj Kudesia, learned counsel for the petitioner and Sri Ram Ujagar Pandey, learned Additional Chief Standing Counsel.
2. The present writ petition under Article 226 of the Constitution of India has been filed seeking a Writ of Certiorari quashing the order dated 18.4.2022 passed by the Principal, Rajkiya Govind Ballabh Pant Polytechnic, Mohan Road, Lucknow and the order dated 30.12.2021 to the extent of reducing the pay band of Rs.9300-34800/- with Grade Pay of Rs.4200/- to pay band of Rs.5200-20200/- with Grade Pay of Rs.2800/- w.e.f. 21.12.2012 with further prayer for a Wit of Mandamus commanding the opposite parties not to recover the alleged excess amount paid to the petitioner as alleged in the impugned order dated 18.4.2022.
3. The petitioner is holding the post of Senior Assistant in Social Welfare Department, Government of Uttar Pradesh. Vide order dated 22.1.2013, the petitioner's pay scale was revised when she was sanctioned Grade Pay of Rs.4,200/-. Thereafter, office of the Accountant General sent the audit objection and directed the Directorate to correct the mistake of fixing the Grade Pay of the petitioner to Rs.2,800/- instead of Rs.4,200/-. Pursuant to the aforesaid objection, it has been directed by the impugned order dated 18.4.2022 that excess amount paid to the petitioner to the extent of Rs.6,51,011/- is to be recovered from her salary every month in installment of Rs.5000/- per month.
4. The aforesaid order has been challenged by the petitioner on the ground that the petitioner was neither put to notice while her pay was revised vide rider dated 22.1.2013 nor any undertaking or affidavit was obtained from the petitioner that in case in future, it was found that the petitioner's pay was wrongly fixed, the excess amount paid to her would be liable to be recovered from her.
5. This Court vide order dated 27.3.2023 directed the learned Standing Counsel to file a specific affidavit that whether any such undertaking, affidavit or notice was given to the petitioner at the time of re-fixation of her Grade Pay of Rs.4,200/- vide order dated 22.1.2013. The order dated 27.3.2023 passed by this Court would read as under:-
"1. Mr. Anuj Kudesia, learned counsel for the petitioner, submits that neither the petitioner was put to notice that in case it would be found that the grade-pay of Rs.4200/- per month was wrongly fixed the Department would be able to realize the excess amount paid to the petitioner nor had the petitioner given any such undertaking to the Department. Mr. Kudesia further submits that the present case is squarely covered by the judgment reported in (2014) 8 SCC 883 [State of Punjab and others Vs. Rafiq Masih (Whitewasher), and it is not covered by judgement reported in (2016) 14 SCC 267 [High Court of Punjab and Haryana and others Vs. Jagdev Singh].
2. Mr. Virendra Singh, learned Standing Counsel, frankly submits that in the counter affidavit there is no such averment, either in respect of the notice to the petitioner or giving of the undertaking by the petitioner that in case it would be found that the grade-pay of Rs.4200/- per month was wrongly fixed, the Department would be able to realize the excess amount paid to the petitioner. Learned Standing Counsel further submits that he would file specific affidavit within two weeks from today. The time prayed for is granted for the purpose.
3. List after expiry of the said period, on 11.04.2023, peremptorily.
4. Interim order, if any, shall remain in operation till the next date of listing.?
6. In compliance of the aforesaid order, an affidavit of Mr. Pawan Kumar, Director, Social Welfare Department has been filed on behalf of the State, in which it has been stated that in pursuance to the audit objection, the Principal, Rajkiya Govind Ballabh Pant Polytechnic, Mohan Road, Lucknow informed the petitioner vide order dated 18.4.2022 that her pay was wrongly fixed and it has been corrected vide order dated 28.10.2021 and, therefore, the excess amount paid to the petitioner to the extent of Rs.6,51,011/- was to be recovered for her salary in monthly installments of Rs.5,000/- per month w.e.f. April, 2022. However, no undertaking/consent of the petitioner at the time of fixation was available either in the service book or in the record of the institution.
7. Considering the aforesaid stand of the State that there is no such undertaking, affidavit or notice was available in the service book or in the record of the institution, I find substance in the submission of the learned counsel for the petitioner that the petitioner's case is squarely covered by the judgment of the Supreme Court rendered in the case of State of Punjab and others Vs. Rafiq Masih (Whitewasher), (2014) 8 SCC 883.
8. Thus, the present writ petition is allowed and the impugned orders dated 18.4.2022 and 30.12.2021 passed by the Principal, Rajkiya Govind Ballabh Pant Polytechnic, Mohan Road, Lucknow are hereby set aside. Consequences to follow.
Order Date :- 25.4.20233
Rao/-
