Misbahul Hasan vs State Of U.P. And 3 Others
2023 Latest Caselaw 25911 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:184475 
 
Court No. - 37
 
Case :- WRIT - A No. - 6864 of 2022
 
Petitioner :- Misbahul Hasan
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Ram Raj Prajapati,Dinesh Kumar Maurya
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents no. 1 to 4.

2. The instant writ petition has been filed challenging the order dated 10.02.2022, a copy of which is annexure 6 to the petition, whereby a notice has been issued to the petitioner to deposit an amount of Rs 4,82,228/- towards arrears of excess payment made to the petitioner.

3. The contention of learned counsel for the petitioner is that the petitioner has retired on attaining the age of superannuation on 30.06.2019. Subsequent thereto the respondents issued an order dated 13.08.2021, a copy of which is annexure 2 to the petition, indicating that while the petitioner was working on a pay scale of Rs 950-20-1150 he was entitled for an increment with effect from 01.01.1995. Considering that, as on 01.07.2018, his pay should have been Rs. 52000/- but as on 01.07.2018 the petitioner was drawing the pay of Rs 58600/- which appears to be wrong and thus it was indicated that the petitioner has received an excess amount of Rs 4,82,228/- which is to be recovered from him. It was also indicated that as the petitioner has retired, as such the aforesaid amount would be adjusted from his leave encashment for which approval has also been received. Thus the petitioner was given notice to deposit the aforesaid amount within a period of 15 days which has been followed by the impugned notice dated 10.02.2022. Learned counsel for the petitioner, contends that as the petitioner has not paid the aforesaid amount consequently an amount of Rs 4,50,216/- i.e. the entire leave encashment amount has been withheld by the respondents and hence the petition.

4. Reliance has been placed on the judgment of Hon'ble Supreme Court in the case of State of Punjab vs Rafiq Masih, 2015 (4) SCC 334 to contend that Hon'ble Supreme Court has held that no recovery is permissible from a retired employee more particularly when the recovery pertains to the alleged wrong fixation which has been made more than five years prior to his retirement. Placing reliance on the judgment of Hon'ble Supreme Court in the case of Rafiq Masih (supra) the argument is that legally the respondents are not entitled to recover the aforesaid amount of Rs 4,82,228/- and at the same time are also required to pay the amount of leave encashment which has been withheld by the respondents.

5. As regards alleged wrong refixation, the attention of this Court is invited towards the order dated 24.06.2018, a copy of which is annexure 1 to the petition, whereby the respondents had granted promotion to the petitioner to the post of Head Jail Warden in the pay matrix level 4 of Rs 25500-81100 with effect from the date of his juniors' promotion.

6. Placing reliance on the aforesaid order, the contention is that the notice dated 13.08.2021, which has been issued by the respondents per which they have indicated that the petitioner is drawing excess pay, does not reflect his promotion as Head Jail Warden with effect from the date of his juniors' promotion and thus it is apparent that the respondents have proceeded to pass the order impugned with patent non-application of mind without even considering the promotion of the petitioner which has been granted by the respondents themselves.

7. On the other hand, learned Standing Counsel on the basis of the averments contained in the counter affidavit contends that the notice which has been issued to the petitioner was correctly issued in as much as it has been noticed that the petitioner was incorrectly drawing the pay of Rs 58600/- despite he being only entitled to draw the pay of Rs 52000/- and thus the respondents have not committed any error requiring the petitioner to deposit the excess amount drawn by him and in refixing his pay.

8. Heard learned counsel for the parties and perused the record.

9. From a perusal of record it emerges that the petitioner retired on attaining the age of superannuation on 30.06.2019. The respondents had issued an order dated 24.06.2018 per which after opening of the sealed cover the petitioner was found entitled for being promoted as Head Jail Warden in the pay matrix level 4 of Rs 25500-81100 with effect from the date his junior has been promoted. After the retirement of the petitioner the respondents issued notice dated 13.08.2021 indicating that the pay fixation of the petitioner had wrongly been done with the result that the petitioner was drawing the pay of Rs 58600 as on 01.07.2018 instead of Rs 52000 for which he was entitled. Considering this, the petitioner was required to deposit an amount of Rs 4,82,228/- with the treasury failing which the amount would be recovered from his leave encashment. This was followed by the impugned order / notice dated 10.02.2022 requiring the petitioner to deposit the aforesaid amount within a period of 15 days. As the petitioner did not deposit the aforesaid amount consequently his leave encashment amount to Rs 4,50,216/- has been withheld.

10. From perusal of the factual matrix as indicated above the writ petition appears to be in two parts namely (a) the recovery which has been made on account of alleged wrong fixation done by the respondents while fixing the pay of the petitioner which excess amount is sought to be recovered by adjusting from the leave encashment of the petitioner and (b) the alleged wrong fixation of pay of the petitioner which, as per the respondents, should have been Rs 52000 as on 01.07.2018 instead of Rs 58600 which was being drawn by the petitioner as on 01.07.2018.

11. With regard to (a), Hon'ble Supreme Court in the case of Rafiq Masih (supra) has held that no recovery is permissible from a retired employee. Thus keeping in view the law laid down by Hon'ble Supreme Court in the case of Rafiq Masih (supra) it is apparent that the respondents are not entitled to adjust the alleged excess amount of Rs 4,82,228/- from the leave encashment of the petitioner and as such the writ petition deserves to be allowed on this ground alone so far as the withheld amount of leave encashment of the petitioner is concerned.

12. As regards (b) i.e. the alleged wrong fixation of pay of the petitioner which, as per the respondents, should have been Rs 52000 as on 01.07.2018 instead of Rs 58600 which was being drawn by the petitioner as on 01.07.2018, perusal of the order dated 13.08.2021 which has been issued by the respondents indicating the wrong fixation indicates that the respondents have failed to consider their own order dated 24.06.2018 per which, after opening of the sealed cover, the petitioner has been granted promotion as Head Jail Warden in pay matrix level 4 of Rs 25500-81100 with effect from the date his junior has been promoted. Obviously promotion as Head Jail Warden retrospectively would entail grant of a higher pay to the petitioner which incidentally, as already indicated above, does not find place or any mention in the notice dated 13.08.2021 which has been issued to the petitioner. Thus, it is apparent that the respondents have proceeded to pass orders with patent non application of mind to the promotion order of the petitioner which promotes the petitioner with effect from the date his junior has been promoted. Considering the aforesaid, the order dated 10.02.2022 which is a consequence to the earlier notice dated 13.08.2021 also merits to be quashed.

13. Keeping in view the aforesaid discussion, the writ petition is allowed. The order dated 10.02.2022, a copy of which is annexure 6 to the petition, is set aside. The respondents are directed to pay the withheld amount of leave encashment to the petitioner alongwith admissible interest with effect from 01.07.2019 till date of actual payment.

14. Let the compliance be made within two months from the date of receipt of certified copy of this order.

Order Date :- 22.9.2023

J. K. Dinkar