Allahabad High Court
Diwakar vs State Of U.P. Thru. Prin. Secy. Animal ... on 15 May, 2025
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:28634
Court No. - 18
Case :- WRIT - A No. - 3031 of 2025
Petitioner :- Diwakar
Respondent :- State Of U.P. Thru. Prin. Secy. Animal Husbandry Lko. And 4 Others
Counsel for Petitioner :- Vijay Kumar Srivastava
Counsel for Respondent :- C.S.C.
Hon'ble Karunesh Singh Pawar,J.
1.Heard learned counsel for the petitioner and learned Standing Counsel who has accepted notice on behalf of respondents.
2.By means of this writ petition, the petitioner has prayed for issuance of a writ of certiorari quashing order, if any, passed by respondent No.2, after summoning the original from respondents whereby direction was given to recover/adjust the amount of Rs.6,18,524/- from the amount of gratuity payable to the petitioner.
A further writ of mandamus directing respondents to refund amount of Rs.6,18,524/- to the petitioner which has been recovered/withheld from the amount of gratuity of the petitioner as shown in pension payment order dated 27.4.2024, with interest w.e.f. 1.5.2024 till the date of actual payment has also been prayed.
3.In compliance of order dated 2.5.2025 passed by this court, Dr. Gopesh Kumar Srivastava, Addl. Director, respondent No.3 is present in person.
It has been apprised on behalf of the respondents that before retirement, since an undertaking was given by the petitioner on his own vide letter dated 29.8.2023, Annexure-10 to the petition, the recovery of excess payment from the gratuity payable to the petitioner has been done.
4.Brief facts of the case are that the petitioner joined on the post of Electrician, which is a Class-III post after being appointed on 17.4.1986 in the pay-scale of Rs.400-615/-. After completion of 14 years of service, the petitioner became entitled to the first promotional pay scale of Rs.4500-7000/- w.e.f. 3.5.2000 vide G.O. dated 2.12.2000 and one additional increment on completion of 19 years of service in the pay-scale of Rs.4500-7000/- in pursuance to G.O. dated 3.9.2001.
Vide G.O. dated 4.5.2010, the existing scheme of time scale was replaced with the scheme of assured career progression scheme w.e.f. 1.12.2008 and it was provided that the employee will be entitled for three financial upgradations at 10, 18 and 26 years of continuous and satisfactory service.
According to government order dated 4.5.2010, the petitioner was given next higher grade of Rs.4200 w.e.f. 1.12.2008 as second financial upgradation vide order dated 25.3.2011 passed by Chief Veterinary Officer, district Raebareli (respondent No.4). Then, after completion of 26 years of service, the petitioner was also given the benefit of third financial upgradation from 3.5.2012 by granting next higher grade pay of Rs.4600/- and accordingly, his pay was fixed as Rs.18220/- w.e.f. 1.7.2012.
It appears that all of a sudden, the respondent No.2 Director, Administration and Development, Animal Husbandry Department, vide order dated 15.3.2022, without affording any opportunity of hearing to the petitioner, revised the pay fixation of the petitioner from 3.5.2000 whereby the pay-scale of the petitioner on completion of 14 years of service w.e.f. 3.5.2000, i.e. Rs.4500-7000 was reduced to Rs.4000-6000/- and thereafter his pay was refixed/reduced from 3.5.2000 till 31.3.2022. It is thus alleged that the excess amount of Rs.6,18,524/- given to the petitioner on account of wrong fixation of pay between 3.5.2000 till 31.3.2022 is liable to be recovered. Vide order dated 14.8.2023, the Joint Director, Administration issued another order directing the petitioner to deposit the amount of Rs.6,18,524/- either in lump sum or in instalments, or else strict action would be taken against him.
5.It is submitted on behalf of the petitioner that under duress, the petitioner gave a representation dated 29.8.2023, Annexure No.10 to the writ petition giving an undertaking as alleged by the respondents, however, while giving the said representation, the petitioner has specifically stated that in case there was excess payment made to him or higher pay was wrongly fixed, then recovery was to be made in the year 2000 itself. In case it has not been so done, the petitioner is not responsible therefor. It is submitted that neither the petitioner has committed any fraud nor any misrepresentation so as to derive any benefit from the department.
6.Learned standing counsel has opposed the contention and on a query made by the court, he has submitted that on the undertaking given by the petitioner, the excess payment has been recovered from the petitioner. He has stated that though deduction has been made from the gratuity of the petitioner, however, no formal order has been passed.
7.I have considered the submission and perused the record.
8.It is not disputed that at the time of re-fixation of pay of the petitioner and while making excess payment, the petitioner has not given any consent or undertaking to the effect that the excess amount paid to him may be recovered from him. Even years after, he has not made any undertaking. It appears that in the fag end of his retirement, due to letter dated 6.6.2023 written by respondent No.2 and the order dated 14.8.2023 issued by Joint Director, Administration, under duress, the petitioner has given an undertaking, a perusal whereof goes to show that the petitioner has opposed the action of the respondents seeking to recover the amount.
Law in this regard is well settled by the Supreme Court in Punjab and Haryana and others versus Jagdev Singh (2016)14 SCC 267(relevant paras 9 and 10). The Supreme Court in the said paragraphs has clarified the judgment in State of Punjab versus Rafiz Misih (White Washer) 2015(4)SCC 334 to the effect that if any employee has given undertaking at the time of receiving any monetary benefit, such recovery may be executed by him.
9.In the present case, no undertaking was given by the petitioner at the time of higher fixation of pay and even years after that, no undertaking was given by him. The undertaking, Annexure-10 was given by him at the fag end of his retirement and therefore, on account of such undertaking, recovery made from the gratuity of the petitioner cannot be sustained in view of the law rendered by Supreme Court, as referred to above.
10.The writ petition is accordingly allowed. A writ of mandamus is issued directing respondents to refund the amount of Rs.6,18,524/- to the petitioner within a period of four weeks from the date of production of a certified copy of this order.
Order Date :- 15.5.2025
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