Shamim Ahmad vs State Of U.P. And 4 Others
2025 Latest Caselaw 6569 ALL

Allahabad High Court

Shamim Ahmad vs State Of U.P. And 4 Others on 27 March, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:43868
 
Court No. - 49							 Reserved
 

 
Case :- WRIT - A No. - 10505 of 2022
 

 
Petitioner :- Shamim Ahmad
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Awadhesh Kumar Sharma,Shesh Nath Bhatt
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble J.J. Munir,J.
 

1. This writ petition is directed against an order of the Executive Engineer, Minor Irrigation Division, Saharanpur dated 14.07.2021, ordering a correction and downwards revision of the petitioner's pay w.e.f. 01.12.2008, besides recovery of excess payment of emoluments on account of the incorrect fixation, earlier made for the petitioner. The recovery was to be made by separate orders. Also under challenge is the order dated 17.08.2021 passed by the Assistant Engineer, Minor Irrigation Sub-Division, Muzaffar Nagar, determining the emoluments paid in excess to the petitioner in compliance with the order dated 14.07.2021 last mentioned and fixing it at a sum of Rs.14,10,999/-. The last of the orders that the petitioner questions is one dated 27.05.2022 passed by the Executive Engineer, Minor Irrigation Division, Saharanpur addressed to the petitioner, informing him that a sum of Rs.14,10,000/- has been determined as emoluments paid to him in excess of entitlement vide order dated 17.08.2021 passed by the Assistant Engineer, and that the petitioner, may furnish his option in the enclosed proforma for recovery of the said sum of money in installments or one go.

2. The petitioner was appointed an Urdu Translator-cum-Junior Clerk in the establishment of the Assistant Engineer, Minor Irrigation Sub-Division, Muzaffar Nagar, after selection in accordance with Rules, on 29.04.1995. The terms and conditions of the petitioner's appointment at the relevant time were governed by the U.P. Translator-cum-Junior Clerks Service Rules, 1994 (for short, 'the Rules of 1994'). In course of time, the petitioner was promoted to the post of an Urdu Translator-cum-Senior Clerk, which came to be re-designated as Urdu Translator-cum-Senior Assistant. He is currently working as an Urdu Translator-cum-Head Clerk in the establishment of the Assistant Engineer, Minor Irrigation Sub-Division, Muzaffar Nagar.

3. Shorn of unnecessary detail, the petitioner, apart from promotion over the long years of his service, was given the benefit of Assured Career Progression (ACP) as admissible from time to time. Until the month of April, 2016, upon grant of due increments and the ACP, the petitioner received a total salary of Rs.38,577/- per month. This salary had for the basic pay a sum of Rs.12,330/- and the grade pay of Rs.4600/-. Rs.20,147/- were payable on account of dearness allowance, Rs.1380/- towards house rent allowance and Rs.120/- as city compensatory allowance. These figures are reflected in the petitioner's pay certificate for the month of April, 2016, issued on 12.05.2016, by the Assistant Engineer, Minor Irrigation Sub-Division, Muzaffar Nagar. By means of an order dated 03.05.2016 passed by the Executive Engineer, Minor Irrigation Division, Saharanpur, the petitioner was informed that his emoluments had been incorrectly fixed and, therefore, re-determined, in accordance with Government Orders dated 13.02.2013, 15.05.2015 and 01.01.2016, besides an office order dated 14.08.2013, w.e.f. 01.12.2008. The order carries re-determination of the petitioner's pay and grade pay with effect from 01.12.2008 until 01.07.2015. The order directed that consequent upon upon re-determination of the petitioner's emoluments, a recovery order would be separately made. Close on heels of the order dated 03.05.2016, a recovery order was passed by the Assistant Engineer, Minor Irrigation Sub-Division, Muzaffar Nagar, directing that a sum of Rs.2,08,316/- is recoverable from the petitioner for the period 01.12.2008 to 31.04.2016. This recovery order was issued in accordance with the re-determination of emoluments made for the petitioner by the Executive Engineer vide his order dated 03.05.2016 mentioned earlier. The petitioner challenged both the orders dated 03.05.2016 and 16.05.2016 before this Court vide Writ-A No.28947 of 2016. The recovery was apparently directed because the petitioner's grade pay was reduced, according to the re-determination done, from Rs.4600/- to Rs.4200/-. This Court allowed the writ petition on ground that the recovery was for a period beyond five years and the respondents had not been able to show that the fixation earlier done was the result of any fraud or misrepresentation by the petitioner. The recovery was, therefore, held to be in the teeth of the principles laid down by the Supreme Court in State of Punjab and others v. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334. It was also held that the orders impugned had been passed without opportunity of hearing. Therefore, while allowing the writ petition vide judgment and order dated 15.09.2016, liberty was granted to the respondents to proceed in accordance with law, if it is found that the petitioner was in any way responsible for the wrong fixation of his grade pay due to any fraud or misrepresentation. It was also directed that any orders on the aforesaid basis may be passed after giving full opportunity of hearing to the petitioner, which too was found wanting by this Court when the respondents made the orders dated 03.05.2016 and 16.05.2016, since quashed by this Court.

4. In compliance with this Court's order dated 15.09.2016 passed in Writ-A No.28947 of 2016, the Executive Engineer, Minor Irrigation Division, Saharanpur passed an order dated 09.11.2017, doing a re-fixation for the petitioner's emoluments in the grade pay of Rs.4600/-. According to the petitioner's case, this ought have been the end of the matter with the respondents accepting the order of this Court dated 15.09.2016. But, that was not to be. A letter dated 06.04.2020 was issued by the Superintending Engineer, Minor Irrigation Circle, Meerut to the Executive Engineer, Minor Irrigation Division, Saharanpur, saying that upon a perusal of the service-book and pay fixation papers relating to the petitioner, it is apparent that emoluments, which have been fixed for/ granted to the petitioner from time to time, were not in accordance with the Government Orders. It was remarked that in addition the Executive Engineer must remember that if an employee gives an option to be governed by a special pay structure, he may get his salary fixed in accordance with the pay structure he elects to be governed by; else, he may get his emoluments fixed according to the ACP structure, which would be governed by the Government Orders applicable thereto. It is also said in the Superintending Engineer's letter that no employee can take benefit of both regime or pay structures. The letter went on to say that the petitioner's pay fixation was required to be done in accordance with the Government Orders dated 15.05.2015 and 20.06.2016, so that upon completion of 21 years of satisfactory service from the date of his substantive appointment, grade pay of Rs.4200/- would be admissible to the petitioner, which in the cadre of Urdu Translators would be the maximum admissible. It was directed by the Superintending Engineer that the petitioner's pay be fixed accordingly. It was further directed that in order to prevent any loss to the Government, any excess payment made to the petitioner be recovered.

5. This order of the Superintending Engineer has been passed ignoring the pay fixation order passed for the petitioner by the Executive Engineer on 09.11.2017 in compliance with this Court's order dated 15.09.2016, where a grade pay of Rs.4600/- was sanctioned for the petitioner, as already mentioned. Now, acting on the Superintending Engineer's letter dated 06.11.2020, the Executive Engineer called for the petitioner's service-book and other pay fixation records, so that his pay could be re-fixed. The Assistant Engineer issued a letter dated 09.12.2020, mentioning that according to the Government Orders dated 15.05.2015 and 20.06.2016, upon completion of 21 years of satisfactory service, the maximum grade pay admissible to an Urdu Translator according to the pay structure admissible was Rs.4200/-. The petitioner was asked to submit his option, if he elected to be governed by the ACP regime or the pay structure meant for the Urdu Translator Cadre. The petitioner answered the Assistant Engineer vide letter dated 14.12.2020 that his emoluments had already been fixed in compliance with this Court's order dated 15.09.2016 passed in Writ-A No.28947 of 2016 vide the Executive Engineer's order dated 09.11.2017, which does not call for any revision or interference. The Assistant Engineer, Minor Irrigation Sub-Division, Muzaffar Nagar thereupon addressed a memo dated 21.12.2020 to the Executive Engineer apprising the latter of the fact that bearing in mind this Court's order passed in Writ-A No.28947 of 2016, the matter regarding fixation of the petitioner's pay may be decided. The Executive Engineer thereupon addressed a memo dated 21.12.2020, bearing reference to the letter dated 07.12.2020, addressed by the Assistant Engineer to the petitioner in compliance with the Superintending Engineer's order, asking him to furnish his option to be governed by the ACP regime in the prescribed form. He was directed to submit his option forthwith, if he wanted to be governed by the ACP regime or the cadre structure applicable to Urdu Translators. If no option was submitted, he would be governed by the pay structure applicable to his cadre. There was no reference to this Court's order in the Executive Engineer's memo dated 21.12.2020 or the pay fixation order dated 09.11.2017, passed in compliance with this Court's order dated 15.09.2016 in Writ-A No.28947 of 2016.

6. The petitioner answered the memo dated 21.12.2020 by his letter dated 26.12.2020, addressed to the Executive Engineer that apart from considering his memo dated 14.12.2020, addressed to the Assistant Engineer sympathetically, the order of this Court passed in Writ-A No.28947 of 2016 may be taken note of and his pay, as already determined in compliance with the said order, not disturbed. A memo dated 19.01.2021 was then issued to the petitioner by the Executive Engineer, asking him to submit his option to be governed by the ACP regime, else his salary/ emoluments would be fixed according to the basic pay structure applicable to the Urdu Translator Cadre. It was mentioned that this option was being given finally to him and failing his election, his emoluments would be fixed according to the basic structure applicable to his service cadre. The petitioner through his memo dated 23.01.2021 once again reiterated the fact that his pay had already been fixed vide order order dated 09.11.2017 passed by the Executive Engineer in compliance with this Court's order dated 15.09.2016 in Writ-A No.28947 of 2016, and that the petitioner was entitled to draw his emoluments according to the pay fixation done in compliance with this Court's order.

7. The last correspondence, that ended with the petitioner's letter dated 23.01.2021, led to the Executive Engineer, Minor Irrigation Division, Saharanpur, passing the impugned order dated 14.07.2021, revising and re-determining the petitioner's emoluments in accordance with the Superintending Engineer's letter dated 17.06.2021, fixing for the petitioner a grade pay of Rs.2800/-, after the annual increment received on 01.07.2015, followed by fixation without the ACP. It was directed that any sum of money paid to the petitioner in excess would be directed to be recovered by a separate order to be made. A separate memo dated 17.08.2021 was then issued by the Assistant Engineer, Minor Irrigation Sub-Division, Muzaffar Nagar, indicating that consequent upon re-fixation of the petitioner's salary vide order order dated 14.07.2021 made by the Executive Engineer, a sum of Rs.14,10,999/-, paid in excess to the petitioner, was liable to be recovered. This memo was addressed by the Assistant Engineer last mentioned to the Executive Engineer, Minor Irrigation Division, Saharanpur. Based on the memo dated 17.08.2021, received from the Assistant Engineer, Minor Irrigation Sub-Division, Muzaffar Nagar, the Executive Engineer passed a recovery order dated 17.05.2022, directing that the sum of Rs.14,10,000/-, consequent upon fixation of the petitioner's salary was found to have been paid in excess to the petitioner. The petitioner was asked to furnish his option, whether he wanted the sum of money to be deducted in installments from his monthly salary or wanted to deposit it in one go.

8. Aggrieved by the orders dated 14.07.2021, 17.08.2021 and 17.05.2022, this writ petition has been instituted under Article 226 of the Constitution.

9. When this writ petition came up for admission, this Court by a detailed order dated 22.07.2022 issued a notice of motion and by an interim order of that date and stayed recovery of the sum of Rs.14,10,999/- till the next date of listing. The order clarified that pay fixed by the respondents vide the order impugned dated 14.07.2021 would be payable to the petitioner and the pay fixation order was clarified not to have been stayed. The interim order was extended from time to time and pending the writ petition, parties exchanged affidavits. A short counter affidavit was filed on behalf of respondent No.1 on 16.09.2022, a counter affidavit on behalf of respondent Nos.2 to 4 on 16.09.2022, and a rejoinder by the petitioner on 01.11.2022. The petitioner filed a supplementary affidavit on 13.09.2023. The petition was heard on 30.09.2024 and judgment reserved.

10. Heard Mr. Shesh Nath Bhatt, learned Counsel for the petitioner and Mr. Sharad Chandra Upadhyay, learned Standing Counsel appearing on behalf of the State.

11. We have carefully heard learned Counsel for the parties and perused the record.

12. This Court must remark at the outset that the correct fixation of pay for the petitioner done by the impugned order dated 14.07.2021 is one matter, and recovery of any excess emoluments paid due to a mistaken fixation done earlier by the respondents, another. So far as pay fixation done for the petitioner vide order dated 14.07.2021 is concerned, it has apparently been done going by the basic structure of emoluments payable for the cadre of Urdu Translators since the petitioner did not elect to be governed by the ACP regime. We do not find any infirmity with the pay fixation done for the petitioner. The earlier pay fixation order, that had been passed by the Executive Engineer on 09.11.2017 in compliance with this Court's order, appears to be a mistaken fixation done without reference to the regime that governed the petitioner in the matter of his pay fixation. It was apparently done without reference to the fact if the petitioner elected to be governed by the ACP regime or stay with the pay structure applicable to the cadre of Urdu Translators. The petitioner, when asked to elect, said that his pay fixation had already been done vide order dated 09.11.2017, in compliance with this Court's order dated 15.09.2016, passed in Writ-A No.28947 of 2016.

13. The learned Counsel for the petitioner before this Court also contended that the petitioner's fixation had already been done by the Executive Engineer vide order dated 09.11.2017 in compliance with our order dated 15.09.2016 passed in Writ-A No.28947 of 2016, which could not be revised. We cannot agree. The reason is that the order dated 15.09.2016 passed by this Court in Writ-A No.28947 of 2016 did not relate to pay fixation at all. It related to the respondents' right to recover from the petitioner any emoluments that had been paid in excess of entitlement. The crux of the judgment and order dated 15.09.2016 passed by this Court in Writ-A No.28947 of 2016 was that for a wrong fixation of the petitioner's emoluments, the respondents could not recover any money paid in excess, unless it was a case where the fixation was done on account of a fraud or misrepresentation done by the petitioner. Else, the petitioner's case was governed by the principles in Rafiq Masih (supra), which would not permit the respondents to recover. We need not go to Rafiq Masih. For the present, the judgment and order dated 15.09.2016 passed in Writ-A No.28947 of 2016 has become final inter partes. The other facet of the judgment and order passed in Writ-A No.28947 of 2016 is that the respondents could not proceed on the basis that the earlier fixation done was on account of a fraud or misrepresentation by the petitioner, without giving him an opportunity of being heard.

14. The question of giving an opportunity of being heard would arise if it is the respondents' case that fixation of emoluments done for the petitioner erroneously, on account of which he received benefits in excess of his entitlement, was the result of a fraud or misrepresentation done by the petitioner. As we read the various orders passed in this case prior to this Court's judgment and order dated 15.09.2016, and, more particularly afterwards, we do not find that at any stage in the matter of fixation of emoluments for the petitioner, the respondents have come up with a case of fraud or misrepresentation on the petitioner's part. In paragraph No.42 of the writ petition, the petitioner pleads that he did not commit any fraud or misrepresentation, which obviously refers to fixation of his pay, in answer to which in paragraph No.28 of the counter affidavit filed on behalf of respondent Nos.2 to 4, all that is said is that the benefit given to the petitioner under the Urdu Translator Cadre and the ACP arrangement together was erroneous and has been cancelled. It appears that some excess emoluments had been paid to the petitioner, because the petitioner was granted emoluments according to the pay structure applicable to the Urdu Translator Cadre and also the ACP regime, both of which could not be simultaneously done. But, there is nothing to suggest that for the aforesaid error in fixation of the petitioner's emoluments, he was responsible in any manner. The fixation after all had to be done by the respondents and they seem to have done a wrong fixation for the petitioner by a mistake of theirs. If it is not the respondent's case at all that a wrong fixation was done by them on account of a fraud or misrepresentation by the petitioner, the judgment and order dated 15.09.2016 passed in Writ-A No.28947 of 2016 by this Court, that has admittedly become final between parties, would not entitle the respondents to recover any excess of emoluments paid to the petitioner. The question of giving opportunity would arise only if it were the respondents' case that excess emoluments were paid to the petitioner on account of some fraud or misrepresentation on his part. This is not the respondents' case at all.

15. There is, therefore, no right with the respondents to pass an order of recovery against the petitioner on account of excess emoluments paid to him due to a wrong fixation done by the respondents by mistake. The judgment and order of this Court dated 15.09.2016 passed in Writ-A No.28947 of 2016 does not at all permit the respondents to recover anything. We find that the Superintending Engineer, who passed the order dated 14.07.2021, re-fixing the petitioner's emoluments, may be correctly working it out, did not take note of this Court's judgment and order dated 15.09.2016, forbidding the recovery of any excess emoluments from the petitioner, unless a case of fraud or misrepresentation on his part was found. We notice a general trend amongst officers of the State Government not to look into the judgments of this Court, let alone where those are precedents, but those that apply inter partes. They are more concerned about the Government Orders applicable - almost fascinated by GOs - ignoring judgments and the law laid down by Constitutional Courts that govern the rights of parties, which includes them. None of the three orders impugned bear any reference to the judgment and order dated 15.09.2016 passed by this Court in Writ-A No.28947 of 2016 inter partes. This is certainly a folly on the part of the Superintending Engineer, Sharad Kumar, who ought be more careful in future when dealing with rights of parties, which have been pronounced upon by this Court.

16. So far as the impugned order dated 14.07.2021, re-determining or re-fixing the petitioner's emoluments payable is concerned, we do not find any infirmity with it and uphold the same. The part of the order, directing recovery of emoluments paid in excess of entitlement, cannot be sustained and must perish. The consequential orders, directing recovery, would also have to go.

17. In the result, this writ petition succeeds and is allowed. The impugned order dated 27.05.2022 passed by the Executive Engineer, Minor Irrigation Division, Saharanpur, to the extent it directs recovery of emoluments paid in excess of entitlement to the petitioner, is hereby quashed. The rest of that order is upheld. The order dated 17.08.2021 passed by the Assistant Engineer, Minor Irrigation Sub-Division, Muzaffar Nagar and the order dated 14.07.2021 passed by the Executive Engineer, Minor Irrigation Division, Saharanpur, directing recovery from the petitioner, are also quashed. A mandamus is issued to the respondents and to each of them restraining them from recovering the sum of Rs.14,10,999/- or any other sum whatsoever on account of emoluments paid in excess of the petitioner's entitlement due to wrong fixation done.

18. There shall be no order as to costs.

19. Let a copy of this judgment be communicated to the Principal Secretary, Irrigation Department, U.P. Government, Lucknow, the Superintending Engineer, Minor Irrigation Circle, Meerut, Sharad Kumar, the then Superintending Engineer, the Executive Engineer, Minor Irrigation Division, Saharanpur, the Assistant Engineer, Minor Irrigation Sub-Division, Muzaffar Nagar and the Chief Treasury Officer, Saharanpur by the Registrar (Compliance).

Order Date :- 27.03.2025

Anoop

(J.J. Munir)

Judge