Rajasthan High Court - Jodhpur

Dinesh Vyas vs The State Of Rajasthan ... on 1 May, 2025

Author: Vinit Kumar Mathur

Bench: Vinit Kumar Mathur

[2025:RJ-JD:20778]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR
                S.B. Civil Writ Petition No. 19650/2022

Dinesh Vyas S/o Shri S.N. Vyas, Aged About 74 Years, Resident
Of 58-B, Amba Mata Scheme, Udaipur (Raj.).
                                                                      ----Petitioner
                                      Versus
1.       The State Of Rajasthan, Through The Secretary, Finance
         Department, Secretariat, Jaipur.
2.       Deputy      Secretary,       Agriculture         (Group-1),     Govt.   Of
         Rajasthan, Secretariat, Jaipur.
3.       Additional Director (Admn.), Rural Development And
         Panchayati Ram Department, Govt. Of Rajasthan (Water
         Shed Development And Soil Conversation Department),
         Jaipur.
4.       Director, Pension And Pensioners Welfare Department,
         Govt. Of Rajasthan, Jyoti Nagar, Jaipur.
5.       Treasury Officer, Udiapur Rural.
6.       Joint Director (AGRI), Krishi Bhawan, Rajasthan, Jaipur.
                                                                   ----Respondents


For Petitioner(s)           :     Mr. Yash Tripathi with
                                  Mr. Anirudh Kothari
For Respondent(s)           :     Mr. Pawan Bharti for
                                  Mr. I.R. Choudhary, AAG
                                  Mr. Mahaveer Prasad Pareek



         HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

01/05/2025

1. Heard learned counsel for the parties.

2. The present writ petition has been filed against the orders

dated 02.07.2018 (Annex.5), 30.01.2019 (Annex.6) and

13.07.2022 (Annex.7), whereby, the pay fixation of the petitioner

has been revised and recovery order has been issued.

[2025:RJ-JD:20778] (2 of 6) [CW-19650/2022]

3. Briefly noted the facts in the present writ petition are that

the petitioner after rendering the service in the respondent-

department retired from the post of Deputy Director. After his

retirement, the respondents granted him promotion on the post of

Joint Director (Agriculture/Water Shed Development and Soil

Conversation Department) w.e.f. 2008-2009. The pay fixation

orders were issued and the petitioner was getting the monthly

pension on the PPO issued by the respondents. The respondents

recalled the order of promotion issued to the petitioner on the

post of Joint Director on account of the fact that there was no

vacant post of Joint Director in the year 2008-2009. As the

promotion order of the petitioner was withdrawn, therefore, the

respondents have issued an order dated 30.01.2019 for re-fixation

of pay of the petitioner and recovery thereafter. As a consequence,

a revised PPO has also been issued. Hence, the present writ

petition has been filed.

4. Learned counsel for the petitioner submits that the petitioner

while discharging his duties in the respondent-Department never

misrepresented any facts and the department on its own had held

the Departmental Promotion Committee for promotion to the post

of Joint Director. He further submits that since the petitioner had

retired in the year 2008, therefore, the benefits were granted to

the petitioner after his retirement.

5. Learned counsel for the petitioner further submits that the

petitioner has not furnished any incorrect information to the

respondents- department for getting the promotion on the post of

Joint Director. He further submits that since the department after

holding the review DPC has promoted the petitioner on the post of

[2025:RJ-JD:20778] (3 of 6) [CW-19650/2022]

Joint Director and thereafter, the Pension Payment Order has been

issued, therefore, the promotion of the petitioner cannot be

withdrawn and no recovery can be effected without issuing a show

cause notice him. He, therefore, submits that the action of the

respondents in passing the orders dated 02.07.2018 (Annex.5),

30.01.2019 (Annex.6) and 13.07.2022 (Annex.7) is absolutely

arbitrary, illegal so as to violative of Articles 14 and 16 of the

Constitution of India.

6. To buttress his contentions, learned counsel for the petitioner

relied upon the judgment of the Hon'ble Supreme Court in Civil

Appeal No(s). 4989/2025 (Arising out of SLP(C)

No.5918/2024) (Jogeswar Sahoo & Ors. Vs. The District

Judge, Cuttack & Ors.), decided on 04.04.2025.

7. Learned counsel for the petitioner, therefore, prays that the

writ petition may be allowed and the orders dated 02.07.2018

(Annex.5), 30.01.2019 (Annex.6) and 13.07.2022 (Annex.7) may

be quashed and set aside.

8. Per contra, learned counsel for the respondents submits that

since there was no vacancy of the Joint Director in the year 2008-

2009, therefore, the department has committed an error while

holding DPC and promoting the petitioner on the post of Joint

Director. Learned counsel fairly submits that the petitioner has not

misrepresented before the department or has not secured the

promotion after furnishing incorrect facts. Learned counsel further

submits that since the promotion was granted erroneously to the

petitioner, therefore, the same is being withdrawn at this stage

and as a consequence, the pay fixation of the petitioner has been

revised and recovery order has been issued. Learned counsel for

[2025:RJ-JD:20778] (4 of 6) [CW-19650/2022]

the respondents very fairly submits that before issuing the

recovery notice, no show cause notice was issued to the petitioner.

9. I have considered the submissions made at the bar and have

gone through the relevant record of the case.

10. The admitted facts in the present writ petition show that

while working in the respondent department, the petitioner retired

from the post of Deputy Director in the year 2008. However, after

superannuation of the petitioner, the department conducted the

Departmental Promotional Committee for the post of Joint Director

(Agriculture/Water Shed Development and Soil Conversation

Department) for the year 2008-2009. Since the DPC

recommended the name of the petitioner, he was promoted on the

post of Joint Director. Thus, the Pension Payment Order and other

benefits for the post of Joint Director (Agriculture/Water Shed

Development and Soil Conversation Department) were extended

to the petitioner. However, the department, after a lapse of about

nine years, reconsidered the matter and found that there was no

post of Joint Director available in the respondent department for

the year 2008-2009, therefore, the promotional order of the

petitioner on the post of Joint Director was recalled and as a

consequence, the revised pay fixation order as well as revised PPO

was passed by the respondents.

11. In pursuance of the revised PPO having been issued,

recovery is being effected from the petitioner. The entire action of

the respondents has been initiated without issuing any show cause

notice to the petitioner. Since there is no fault on the part of the

petitioner in getting the order of promotion and issuing the

consequential PPO, the same cannot be withdrawn without giving

[2025:RJ-JD:20778] (5 of 6) [CW-19650/2022]

an opportunity of hearing to him. It is strange that after a period

of nine years, the department has noticed this fact that the

petitioner has wrongly been given promotion on the post of Joint

Director in the year 2008-2009 when there was no post in

existence. The petitioner has never misrepresented before the

respondent department and has not furnished any incorrect

information, therefore, he cannot be made liable in the present

case. The recovery order issued against the petitioner without

giving an opportunity of hearing, is not sustainable more

particularly in view of the detailed facts mentioned above.

12. The Hon'ble Supreme Court in the case of Jogeswar Sahoo

(supra) has held as under:-

"9. This Court has consistently taken the view that if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous, such excess payments of emoluments or allowances are not recoverable. It is held that such relief against the recovery is not because of any right of the employee but in equity, exercising judicial discretion to provide relief to the employee from the hardship that will be caused if the recovery is ordered."

13. In view of the discussion made above, the writ petition is

allowed. The orders dated 02.07.2018 (Annex.5), 30.01.2019

(Annex.6) and 13.07.2022 (Annex.7) are quashed and set aside

and the respondents are directed not to make any recovery from

the petitioner in pursuance of the order dated 30.01.2019

(Annex.6).

[2025:RJ-JD:20778] (6 of 6) [CW-19650/2022]

14. However, the respondents will be free to take appropriate

action for withdrawing the promotional order issued to the

petitioner for promotion on the post of Joint Director in accordance

with law.

15. The stay petition(s) as well as other pending misc.