Allahabad High Court
Prem Shankar Dubey vs State Of U.P. And 5 Others on 4 October, 2023
Bench: Vikas Budhwar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:191073
Court No. - 35
Case :- WRIT - A No. - 3855 of 2022
Petitioner :- Prem Shankar Dubey
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Sanjeev Kumar Pandey
Counsel for Respondent :- C.S.C.
Hon'ble Vikas Budhwar,J.
1. Heard Sri Sanjeev Kumar Pandey, learned counsel for the writ petitioner, Sri Shailendra Singh, learned Standing Counsel, who appears for the respondent nos.1 to 5.
2. The case of the writ petitioner is that he was appointed on the post of Assistant Teacher by the Deputy Director of Education, Pancham Mandal Varanasi on 08.09.1992. However, the writ petitioner, claims to have superannuated on 31.03.2020 from the sixth respondent-institution, Sri Shiv Sanskrit Secondary College, Bateshwarnath, Baraipur, Jaunpur.
3. As per the writ petitioner, he was issued a no dues certificate. Post retirement after a period of about two years, now an order has been passed by the Deputy Director Education (Madhyamik), Fifth Region, Varanasi on 21.02.2022, whereby a communication has been sought to be made to the fourth respondent, District Inspector of Schools, Jaunpur questioning the grant of grade pay of Rs.5,400/-, as the writ petitioner was not entitled to the same. Recovery has also been directed to be made against the writ petitioner.
4. Questioning the order dated 21.02.2022, passed by the third respondent, the writ petitioner had filed the present petition with a further relief for a mandamus directing the respondents to release all retirement benefits including arrears of pension with interest and to pay month to month pension,
5. This Court entertained the writ petition on 25.03.2022, while passing the following orders :-
"Petitioner is aggrieved by the order dated 21.2.2022 passed by the Deputy Director of Secondary Education, Pancham Mandal, Varanasi, whereby orders have been passed for adjustment of the salary already paid to the petitioner in pension by way of deduction and his pension has also not been paid.
Learned counsel for the petitioner has submitted that there is no allegation against the petitioner that he committed any fraud or misrepresentation on the basis of which excess salary was paid to him.
Shri Santosh Kumar, learned Standing Counsel prays for and is granted three weeks' time to file counter affidavit.
One week thereafter to the learned counsel for the petitioner to file rejoinder affidavit.
List this case on 20.5.2022.
Till the next date of listing the effect and operation of the order dated 21.2.2022 passed by the Deputy Director of Secondary Education, Pancham Mandal, Varanasi shall remain stayed.
In the meantime provisional pension shall be paid to the petitioner by the respondent concerned."
6. An amendment application was also filed seeking amendment in the array of the parties, which was allowed. Though, time was granted to the learned Standing Counsel to file counter affidavit, while according interim protection to the writ petitioner, but till date no counter affidavit has been filed.
7. Sri Shailendra Singh, learned Standing Counsel submits that in view of the order, which is being proposed to be passed, he does not seek to file response in that regard.
8. Learned Counsel for the writ petitioner while assailing the order dated 21.02.2022, passed by the third respondent has sought to argue that the entire exercise sought to be undertaken is in violation of the principles of natural justice, as the same has been passed without even putting to the writ petitioner to notice, as in this regard he seeks to refer paragraph no.9 of the writ petition. He further submits that the post retirement after a period of three years, the said recovery ought not to have been made, once there is no allegation of fraud, misrepresentation or concealment. He submits that the post decisional hearing be accorded to the writ petitioner.
9. Sri Shailendra Singh, learned Standing Counsel on the other had submits that the issue as to whether the writ petitioner was heard or put to notice needs factual determination and further of course on merits, the issue needs to be decided by the third respondent, while passing a specific order dealing with all the contentions. He further submits that the order in question does not reflects that opportunity was granted to the writ petitioner. According to him, let the writ petitioner approach the third respondent, while filing a comprehensive representation and the same will be decided by it.
10. Ordinarily, in normal circumstances this Court would have undertaken the task of deciding the matter on merits, however as rightly stated by the learned Standing Counsel, the issue needs to be decided at the first instance by the third respondent and of course while hearing the writ petitioner as the allegation of the writ petitioner is that he was not heard. Consequently, this Court in the facts and the circumstances of the case, in particular the stand taken by the respondents is not addressing of on the merits leaving it open for the writ petitioner to prefer a comprehensive representation along with the self-attested copy of the writ petition before the third respondent.
11. The writ petitioner, accordingly, shall prefer a comprehensive representation along with the self attested copy of the writ petition by 10.10.2023. On the receipt of the same, notices be issued to the sixth respondent to whom at the time of the filing of the writ petition and entertaining of the same was not put to notice. The third respondent shall fix a date in the third week of October, 2023 and thereafter proceed to decide the matter by 31.10.2023, while passing a reasoned and a speaking order, bearing in mind the following fundamental and the core issues :-
a) The entitlement of the writ petitioner for Grade Pay Rs.5,400/-, as per the statutes and the Government Orders issued from time to time;
b) The issue with regard to the fact as to whether the recovery is to be made effectuated particularly when the writ petitioner stood retired and the order impugned prima facie does not reflect that there had been allegation of concealment, misrepresentation or fraud.
c) the import and the impact of the judgment in the case of State of Punjab and others vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334;
d) Any other incidental or ancillary issue.
12. Till the passing of the fresh orders or till 03.11.2023, whichever is earlier, the order dated 21.02.2022 insofar as it pertains to make recovery shall be kept in abeyance. The third respondent shall also decide the claim of the writ petitioner with regard to the payment of the pensionary benefits, as per the rules. The arrangement, which was continuing till today shall continue till the passing of the fresh order.
13. The interim protection so accorded to the writ petitioner is available to the writ petitioner, provided he prefer representation within the time stipulated by this Court.
14. With the aforesaid observation, the writ petition stands disposed off.
Order Date :- 4.10.2023
S Rawat
