Allahabad High Court
Smt. Anita Sharma vs State Of U.P. Thru. Prin. Secy. Deptt. ... on 21 November, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:76601
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT - A No. - 7793 of 2025
Smt. Anita Sharma
.....Petitioner(s)
Versus
State Of U.P. Thru. Prin. Secy. Deptt. Transport Lko. And 5 Others
.....Respondent(s)
Counsel for Petitioner(s)
:
Ghulam Mohammad Kamil
Counsel for Respondent(s)
:
C.S.C., Ratnesh Chandra
Court No. - 18
HON'BLE SHREE PRAKASH SINGH, J.
Rejoinder affidavit filed today by counsel for the petitioner is taken on record.
Heard learned counsel for the petitioner, Mr. Ratnesh Chandra, learned counsel for the respondent nos. 2 to 6, learned Additional Chief Standing Counsel for the State and perused the records.
The instant writ petition is preferred assailing the order dated 23.12.2022 passed by the Additional Managing Director, respondent no. 4, herein.
It is submitted by learned counsel appearing for the petitioner that the petitioner joined initially as Lower Division Clerk on 08.02.1988 under the respondents and by efflux of time, he was promoted on the post of Traffic Superintendent and retired from the said post. He submitted that pay parity was granted to the petitioner vide order dated 05.09.2013, but at a subsequent stage, without providing any opportunity of hearing, vide order dated 12.08.2015, the Chief General Manager, Administration, while revoking the order dated 05.09.2013, had stopped the benefits of pay protection to the petitioner, whereafter, the petitioner, as well as the other similarly situated persons, out of them Sita Ram Sharma and Others, approached this Court by way of instituting a Writ Petition No. 4878 (SS) of 2015, wherein, this Hon'ble Court passed an interim order on 21.08.2015, whereby, interim protection was granted that the authorities shall not recover the amount already paid to the petitioner, by providing the benefit of pay protection. He added that the petitioner subsequently retired after attaining the age of superannuation on 31.10.2022 and once he sought his retiral dues, the same was declined vide impugned order dated 23.12.2022, while observing that the amount of the gratuity Rs.9,59,139/- can only be paid after the final outcome of the writ petition no. 4878 (SS) of 2015.
He submitted that the Writ Petition No. 4878 (SS) of 2015 has finally been decided vide judgment and order dated 19.07.2024 in favor of the similarly situated employees of the department. The order dated 19.07.2024 is quoted hereinunder:-
""1. Heard Mr. Rahul Srivastava & Mr. G.M. Kamil, learned counsel for petitioners, learned State Counsel for opposite party no. 1 and Mr. Ratnesh Chandra, learned counsel for opposite parties no. 2 to 4.
2. Petition has been filed seeking challenge to the order dated 12.08.2015 whereby pay protection granted earlier to petitioners vide order dated 05.09.2013 has been withdrawn and recovery in pursuance thereof has been directed. Further prayer for a direction to opposite parties to continue the pay protection granted to petitioners earlier vide order dated 05.09.2013 has also been sought.
3. It has been submitted that petitioners were employed by the Corporation on Class-III post and thereafter in pursuance of Rule 8A of the erstwhile U.P. Government Servants Seniority Rules, 1991, reserved category employees of the Corporation who was junior to petitioners were granted accelerated promotion. It is submitted that due to such accelerated promotion, the consequence was that such juniors to petitioners were provided higher scale of pay than petitioners and in order to remedy the aforesaid situation, the order dated 05.09.2013 was passed by the Corporation granting pay parity to petitioners with such juniors who were getting higher salary due to accelerated promotion. It is submitted that the aforesaid benefits were granted to petitioners in pursuance of the Government orders dated 04.05.2010 and 22.12.2011.
4. Learned counsel for petitioners submits that subsequently due to judgment rendered by Hon'ble Supreme Court in Civil Appeal No. 2608 of 2011, U.P. Power Corporation Limited versus Rajesh Kumar and others, the provision of accelerated promotion under Rule 8A of the Rules of 1991 were declared ultra vires and were quashed due to which the reserved category candidates who had been granted accelerated promotion, were subsequently reverted to their original post. It is submitted that despite the said reversion, pay protection was granted to the reserved category candidates and the same protection continued with petitioners but has now been withdrawn by passing of the impugned order dated 12.08.2015. It is submitted that initially by means of interim order, this Court had issued directions that no recovery should be effected against petitioners. It is submitted that during pendency of petition, only five petitioners namely Rajesh Kumar Singh, Deepak Verma, Vimlesh Kumar Yadava, Balraj Singh and Ashok Kumar Shukla are remaining in service whereas the other petitioners have already superannuated with some of them also having passed away.
5. Learned counsel for petitioner submits that a bare perusal of the impugned order will make it evident that the same has been passed without issuing any show cause notice to petitioners nor even affording any opportunity of hearing to them and without adverting to any misrepresentation of fraud on the part of petitioners in the pay protection provided to them. He has therefore placed reliance on judgment rendered by Hon'ble Supreme Court in the case of State of Punjab and others versus Rafiq Masih, (2015) 4 SCC 334 to submit that in such circumstances as indicated in the aforesaid judgment, the same being applicable upon petitioners, no such recovery could have been effected from the salaries and post retiral benefits of petitioners. He has also placed reliance on judgment rendered in the case of Joint Action Committee of Air Line Pilots' Association of India (Alpai) and others versus Director General of Civl Aviation and others, (2011) 5 SCC 435.
6. It is submitted that the impugned order has been passed only on the basis of report submitted by the Finance Controller without any independent application of mind by the authority concerned as to the circumstances under which pay protection was accorded to petitioners and also ignoring paragraph 3 of the Government order dated 22.12.2011.
7. Learned counsel appearing for opposite parties have refuted submissions advanced by learned counsel for petitioners with the submission that although initially pay protection was granted to petitioners vide order dated 05.09.2013 but subsequently upon examination of the issue, it was found that petitioners are not entitled for the same since there is no such provision in the Government orders dated 04.05.2010 and 22.12.2011 and therefore the benefit had been wrongly granted to petitioners. It is also submitted that in pursuance of the impugned order, subsequently order dated 02.05.2016 was passed with regard to petitioners indicating their revised pay scale in pursuance of the order dated 12.08.2015 but the said order dated 02.05.2016 has not been challenged by any of petitioners.
8. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident and admitted that earlier petitioners had been granted pay protection in parity with their juniors who under the reserved category were granted accelerated promotion in view of Rule 8A of the Rules of 1991. Such pay parity which was granted by means of order dated 05.09.2013 places reliance on the Government orders dated 04.05.2010 and 22.12.2011. A perusal of the impugned order will make it evident that the same has been passed only in consideration of reports submitted by the Finance Controller to the effect that petitioners were not entitled for the aforesaid benefit in terms of the Government order dated 22.12.2011. It also appears that impugned order has been passed in pursuance of a meeting by the State Government dated 29.06.2015 under the Chairmanship of the Principal Secretary, Transport Department.
9. However, the impugned order also reveals that the benefits granted to petitioners vide order dated 05.09.2013 have been withdrawn only on the basis of opinion given by the Finance Controller and does not in fact advert to the minutes of the meeting dated 29.06.2015. Since the Chief General Manager (Administration) who has passed the impugned order is admittedly the appointing authority of petitioners, it was incumbent upon such an authority, prior to passing the impugned order, to have applied his mind independently with regard to the issues before him and to have reached a subjective satisfaction that the Government orders were inapplicable in the case of petitioners and as to the reasons for its inapplicability. The impugned order clearly reveals that it has been passed without any such independent application of mind and without even adverting to the reasons for granting such benefit to petitioners vide earlier order dated 05.09.2013. The order also while indicating that parity has been granted to petitioners with one Smt. Sudha and Mr. Mahindra Pratap does not advert as to whether such benefits of pay protection granted to such persons were continued or were withdrawn.
10. The aspect of recovery from petitioners salaries and pensionary benefits also appears to be covered by judgment rendered by Hon'ble Supreme Court in the case of Rafiq Masih (supra) which is in the following terms:-
"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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
"(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from 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."
11. In view of aforesaid discussion, it is evident that the impugned order dated 12.08.2015 has been passed without application of mind with regard to applicability of the Government orders and continuance of pay parity to the persons with whom such parity had been granted and without affording any opportunity of hearing to petitioners.
12. In view thereof, the impugned order dated 12.08.2015 is hereby quashed by issuance of a writ in the nature of certiorari granting liberty to opposite parties to pass fresh orders only after affording opportunity of hearing to those persons who are continuing in service. Since the posts are not pensionable therefore an opportunity of hearing to the superannuated persons is not required.
13. In view of aforesaid, it is also directed that no recovery/adjustment shall be made from the post retiral benefits of the superannuated employees in view of judgment rendered in the case of Rafiq Masih (supra).
14. The petition consequently stands allowed. Parties to bear their own cost.
15. The benefit of this order shall not be applicable upon petitioner no. 15, Chaudhary Manzuryar since appropriate orders have consequently been passed in his case.""
Referring the aforesaid, he submits that the coordinate bench of this Court, while finally deciding the issue has given the benefit of ratio of judgment rendered in the case of State of Punjab and others versus Rafiq Masih, (2015) 4 SCC 334 and the order was passed in favour of the petitioners, Sitram Sharma and others, therefore, submission is that no recovery could be made from the petitioner and he is entitled for the payment of retiral dues including the gratuity, which has been withheld by the impugned order dated 23.12.2022.
Adding his argument, he submitted that there is no reason to withhold the payment of gratuity, which has been calculated as Rs.9,59,139/- along with the interest started from 23.12.2022, by which the same has been stayed, observing that till the pendency of Writ Petition No. 4878 (SS) of 2015, the same would not be paid. He submits that now the issue has been settled and therefore, the petitioner is entitled for the amount of gratuity Rs.9,59,139/- along with interest, therefore, submission is that the order dated 23.12.2022 may be quashed and authorities may be directed to pay the amount of gratuity for which the petitioner is entitled, within stipulated period of time as may be fixed by this Court.
On the other hand, learned counsel appearing for the respondent corporation submitted that since the Writ Petition No. 4878 (SS) of 2015 was pending at the time of passing the impugned order dated 23.12.2022, thereafter, the authorities had taken the right decision while withholding the amount of the petitioner's gratuity. It has fairly been admitted by counsel for the respondent-corporation that now the issue has been settled by the coordinate bench of this Court vide judgment and order dated 19.07.2024 providing the benefit of the ratio of judgment of Rafiq Masih(supra), therefore, the matter for payment of gratuity as is calculated and is mentioned in the impugned order dated 23.12.2022 can be considered to be paid to the petitioner.
Upon considering the submissions of counsel for the parties, it is apparent that the petitioner is a retired employee and some payment was given as the pay protection was granted to the petitioner by order dated 05.09.2013, which was subsequently withdrawn vide order dated 12.08.2015. In this regard, the petition bearing no. 4875 (SS) of 2015 was filed, which has now finally been decided vide judgment and order dated 19.07.2024.
From perusal of the order, it is evident that the Writ Petition has been decided while giving the benefit of ratio of judgment of Rafiq Masih(supra).
When this Court examines the impugned order dated 23.12.2022, it reveals that the same has been passed while observing that since the Writ Petition No. 4878 (SS) of 2015 is pending, therefore, the amount of gratuity would be subject matter of the final outcome of the Writ Petition No. 4878 (SS) of 2015 and admittedly, the Writ Petition has been decided affirmatively in favour of the similarly situated employees of the department, therefore, there seems to be no hurdle with respect to payment of the gratuity to the petitioner. Ergo, the impugned order dated 23.12.2022 is hereby quashed.
The competent authorities are directed to make payment of the gratuity to the petitioner for which he is entitled, within the period of six weeks from the date a certified copy of this order is produced before him.
With the aforesaid observation, the writ petition is hereby allowed accordingly.
(Shree Prakash Singh,J.)
November 21, 2025
Mayank
