Allahabad High Court
Mrs. Mahendra Kaur vs State Of U.P. Through Secy. U.P. ... on 26 April, 2023
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 24
Case :- WRIT - A No. - 5261 of 2000
Petitioner :- Mrs. Mahendra Kaur
Respondent :- State Of U.P. Through Secy. U.P. Civil Sectt. Lucknow
Counsel for Petitioner :- S.P.Shukla,Rajesh Shukla
Counsel for Respondent :- C.S.C.,Ashok Pandey,Jaibind Singh Rathour,Jogendra Nath Verma
Hon'ble Neeraj Tiwari,J.
Heard learned counsel for petitioner and learned standing counsel for State-respondents.
Present petition has been filed seeking quashing of order dated 29.07.2000 passed by respondent No. 2-District Basic Shiksha Adhikari, Sultanpur.
Pleadings have been exchanged between the parties. With the consent of parties, petition is being decided at the admission stage itself.
Learned counsel for petitioner submitted petitioner was appointed as an untrained Assistant Teacher in Sri Guru Nanak Vidyalay, Sultanpur (hereinafter referred to as 'School') in the year 1967 having diploma in Tailoring & Allied Crafts from the Directorate of Technical Education, Uttar Pradesh and later on, she was appointed as Assistant Teacher in Junior High School against a substantive vacancy through direct recruitment w.e.f. 01.07.1978. The School was taken on grant in aid list w.e.f. 01.04.1982. It is next submitted that Government Order dated 20.07.1979 has been issued for granting exemption to such teachers from training who had completed ten years of service as on 01.07.1978. Accordingly, vide Government Order dated 25.02.1984, petitioner was granted exemption from training. Consequently, vide order dated 26.08.1986, her service was also regularized w.e.f. 01.01.1986 and she was given increment from 1978. It appears that the said development has not been mentioned in service book of petitioner which is having different entries with regard to appointment and regulation. Accordingly, impugned order dated 29.07.2000 has been passed restraining the additional increment of petitioner and further, direction was issued to inquire the matter. Petitioner has challenged the impugned order by filing present petition and vide order dated 15.09.2000, this Court has stayed the impugned order of recovery of excess payment so made. The said interim order has never been challenged by filing any special appeal and further proceeding has not been completed pursuant to the impugned order dated 29.07.2000. It is further submitted that petitioner was superannuated on 30.06.2011 and received all consequential post retiral benefits. He firmly submitted that petitioner has never played any fraud and in case any excess payment is made, respondents-authorities are responsible for the same. Lastly, it is submitted that petitioner is a Class-III employee, therefore, in light of judgments of Apex Court in the matter of State of Punjab and others Vs. Rafiq Masih: 2015 (4) SCC 334, in case due to wrong fixation of pay scale, excess payment is made, the same can not be recovered after retirement. Therefore, impugned order dated 29.07.2000 is bad and liable be set aside.
Learned standing counsel opposed the submissions of counsel for petitioner and submitted that petitioner was not having the requisite qualification in the year 1978, but based upon counter affidavit, she could not dispute this fact that petitioner has never played any fraud or concealed the facts.
I have considered the rival submissions advanced by the learned counsel for the parties and perused the records as well as impugned order. There is no dispute on this point that petitioner has never played any fraud or concealed any fact, therefore, petitioner is not responsible in case excess payment has been made. Apex Court in the case of Rafiq Masih (supra) while dealing with such dispute, had framed following guidelines:-
"12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
Undisputedly, petitioner is a Class-III employee superannuated on 30.06.2011 and received all consequential retiral benefits, therefore, in the light of judgment of Apex Court in the matter of Rafiq Masih (supra), no recovery can be made.
Therefore, under such facts and circumstances of the case, the impugned order dated 29.07.2000 is hereby quashed and writ petition is allowed.
No order as to costs.
Order Date :- 26.4.2023
Sartaj
