Allahabad High Court
Radhey Shyam Pandey vs State Of U.P. Thru Secretary Basic ... on 4 February, 2025
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:15039
Court No. - 10
Case :- WRIT - A No. - 26712 of 2006
Petitioner :- Radhey Shyam Pandey
Respondent :- State Of U.P. Thru Secretary Basic Education And Others
Counsel for Petitioner :- Pankaj Mishra,Ajeet Kumar Singh,G.K.Singh,M.M.Chaurasia,Rakesh Pandey,Ramesh Chandra Tiwari,V.K. Singh
Counsel for Respondent :- C.S.C.,A.K. Upadhyay,Alok Krishan Tripathi,Anoop Baranwal,Awdhesh Kumar Malviya,M.M.Chaurasia,Prem Chand Saroj,Ram Surat Saroj
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri T.N.Dubey, learned counsel for the petitioner, Sri A. Tripathi on behalf of respondent no.6 and Sri R.K.Tiwari, learned Additional Chief Standing Counsel.
2. Petitioner before this Court is challenging the impugned order dated 8/10.4.2006 which was passed on the basis of an order passed by this Court in the earlier round of litigation. Relevant part thereof is reproduced hereinafter:
"निर्णय
उपर्युक्त विवेचना से स्पष्ट है कि सहायक अध्यापकगण सर्व श्री श्री आनन्द प्रकाश उपाध्याय, राधेश्याम पाण्डेय व त्रिलोकी नाथ सिंह की नियुक्तियों अभ्यपिंत/मृत पदो पर की गई है। नियुक्तियों हो जाने के बाद भी सर्व श्री आनन्द प्रकाश उपाध्याय, राधेश्याम पाण्डेय व त्रिलोकी नाथ सिंह अन्य विद्यालयों में कार्यरत रहे तथा श्री प्रवेश कुमार सिंह नियुक्ति तथि को अप्रशिक्षित होने के कारण अनर्ह थे। जिला बेसिक शिक्षा अधिकारी की आख्यानुसार उक्त सहायक अध्यापकगणों का अनुमोदन पत्र भी फर्जी है। अतः उक्त सहायक अध्यापकगण वेतन भुगतान के पात्र नहीं है। जनहित में इऩमें अब तक भुगतान की गई धनराशि की वसूली भी आवश्यक है।"
3. Aforesaid order was challenged by the petitioner in the present writ petition and interim order dated 16.5.2006 was passed which is reproduced hereinafter:
" It is alleged in paragraph 16 and 23 of the writ petition that the impugned order has been passed in violation of the principles of natural justice.
Standing Counsel representing the respondent Nos. 1 to 4 may file counter affidavit within six weeks.
Issue notice to the respondent Nos. 5 and 6 by RP/AD. Steps to be taken within week.
List after six weeks on the date fixed in the summons, by which time respondent Nos. 5 and 6 may also file Counter Affidavit.
Until further order of the Court the operation of the Order dated 8/10.04.2006, passed by respondent No. 3 (Annexure - 9 to the writ petition) shall remain stayed."
4. This writ petition was dismissed for want of prosecution twice and thereafter it was restored also.
5. Interim order remained in currency.
6. The petitioner was aged about 47 years when this writ petition was filed in the year 2006, therefore, he must have attained the age of superannuation.
7. As referred above, the allegations against the petitioner's appointment are serious which has been referred in the report and was basis of the impugned order.
8. Learned counsel for the respondent no.6 has referred following part of the impugned report:
"उपरोक्त 4 सहायक अध्यापको की नियुक्ति/भर्ती प्रक्रिया में निम्नलिखित विसंगतियां दृष्टिगत होती हैः-
1. स०अ० सर्व श्री आनन्द प्रकार उपाध्याय, श्री राधेश्याम पाण्डेय, श्री त्रिलोकी नाथ सिंह एवं श्री प्रवेश कुमार सिंह की नियुक्ति संस्था के उच्चीकृत होने के पश्चात की गयी है, जो कि शासनादेशों एवं विभागीय आदेशों के विपरीत की गई है।
2. प्रबन्धक द्वारा उपरोक्त चारो नियुक्तियों का अनुमोदन आदेश प्रस्तुत नहीं किया गया है, परन्तु कार्यालय के पत्रांक /बे०-2/1946-47/96-97 दिनांक 10-09-96 के द्वारा सम्बन्धित चारो सहायक अध्यापको के प्रपत्र-I में उनके हस्तक्षेप में अंकित विवरण में अनुमोदन किया जाना दर्शाया गया है।
3. फर्जी अनुमोदन आदेश का पत्रांक कार्यालय की प्रेषण पंजिका में कार्यालय लिपिक द्वारा कूटरचित तरीके से अंकित किया गया है। महत्वपूर्ण तथ्य यह है कि कार्यालय आदेश संख्या बे०-2/1946-47 दिनांक 10-09-96 द्वारा पोस्ट मास्टर महराजगंज, जौनपुर को सुरक्षित कोष में धन जमा करने का आदेश निर्गत है।"
9. Learned counsel for the petitioner in rejoinder has submitted that even in aforesaid circumstances, since the petitioner has already worked till his age of superannuation and there was no complaint in regard to his work, therefore, at this belated stage to throw him out and directing for recovery would not be reasonable and for that he has placed reliance on a judgment passed by Supreme Court in the case of State of Punjab v. Rafiq Masih, (2015) 4 SCC 334, and relevant paragraphs thereof are reproduced hereinafter:
16. This Court in Syed Abdul Qadir v. State of Bihar [Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 : (2009) 1 SCC (L&S) 744] held as follows : (SCC pp. 491-92, para 59)
"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. The learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."
(emphasis supplied)
Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir case [Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 : (2009) 1 SCC (L&S) 744] , that recovery of excess payments, made from the employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year from the date of his retirement on superannuation.
18. 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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."
10. I have considered the above submissions and perused the records.
11. As referred above, petitioner has already taken advantage of an interim order and has attained the age of superannuation.
12. Allegations as referred against the petitioner appears to be very serious, still the Court is of considered opinion that at this stage to throw out the petitioner would not only inhuman but adverse to his family members also, therefore, in the light of State of Punjab v. Rafiq Masih, (supra) as well as Radhey Shyam Yadav & Anr. Vs State of U.P. & Ors, 2024 SCC Online SC 10 that in such circumstances it will be travesty of justice if relief is denied to petitioner, the petitioner has made out a case for interference.
13. Impugned order dated 8/10.4.2006 is set-aside and its legal consequence shall follow.
14. This order may not be considered as a precedent as it has been passed in the peculiar facts and circumstances of present case.
15. With the aforesaid observation/direction, this writ petition is disposed of.
Order Date :- 4.2.2025
SB
