Pet it ioner v. St at e of Ut t arakhand Ot hers

Mr. P.S. Bisht , Addit ional CSC, for t he St at e. Mr. Piyush Tiwari, Advocat e, for t he respondent . J U D G M E N T H o n ’ b l e M a n o j K u m a r Ti w a r i , J. H o n ’ b l e Su b h a sh Up a d h y a y , J. ( Pe r : H o n ’ b l e M a n o j K u m a r Ti w a r i , J.) Mr. Jagdish Chandra Joshi approached Ut t arakhand Public Services Tribunal by filing Claim Pet it ion No. 31/ NB/ DB/ 2018, in which he sought t he following reliefs: “ ( i) I ssue a writ , order or direct ion in t he nat ure of cert iorari calling for t he records and quashing of t he im pugned order 22 nd Novem ber 2017 passed by t he Execut ive Engineer, Minor I rrigat ion Division, Pit horagarh direct ing for recovery of Rs.7,91,110.00/ - from pet it ioner wit h deduct ion of Rs. 12000 per m ont h 1 from t he salary of t he pet it ioner and rem aining am ount t o be deduct ed from Grat uit y of t he pet it ioner t o be paid aft er his ret irem ent , being illegally and arbit rary. ( ii) I ssue a writ , order or direct ion in t he nat ure of m andam us com m anding t he respondent s not t o deduct illegal recovery of Rs. 7,91,110/ - on account of alleged excess pay and allowance as per t he im pugned order No. 678/ 10/ C/ Vasuli/ 2017 & 18 dat ed 22 Nov. 2017 issued by t he Execut ive Engineer Minor I rrigat ion Division, Pit horagarh ( Respondent No. 4) under whom t he pet it ioner ( Class I I I em ployee) has been serving for about 34 years of service and who is ret iring next year i.e. 31.12.2018. ( iii) I ssue a writ , order or direct ion in t he nat ure of m andam us com m anding t he respondent s t o refund t he pay and allowances already deduct ed from t he salary of t he pet it ioner under t he Grade Pay Rs. 5400/ - per m ont h w.e.f. 01.05.2017 prior t o t he issue of t he said im pugned order dat ed 22.11.2017, which has been sought t o be quashed for being wrongful order under t he grounds as st at ed above.”

2. Vide im pugned j udgm ent and order dat ed

28.8.2019, t he aforesaid claim pet it ion was part ly allowed; t he order of recovery dat ed 22.11.2017, as am ended on 7.5.2018, was set aside, however pet it ioner ’s prayer for granting Grade Pay of ₹5400 was disallowed. Operat ive port ion of t he j udgm ent rendered by Tribunal is ext ract ed below: “ The claim pet it ion is part ly allowed. The im pugned recovery dat ed

22.11.2017 and t he am ended order for recovery dat ed

07.05.2018 are hereby set aside. 2 The prayer of t he pet it ioner for grant ing him t he grade pay of Rs. 5400 is not allowed. The final salary of t he pet it ioner and his pensionary benefit s shall be decided on t he basis of his last adm issible salary, as per t he rules wit hin a period of four m ont hs from t he dat e of t his order. No order as cost s.”

3. Jagdish Chandra Joshi as well as t he St at e, bot h have challenged t he j udgm ent rendered by t he learned Tribunal by filing separat e writ pet it ion. Since com m on quest ions of law and fact are involved in bot h t he writ pet it ions, t hese are being heard and decided by t his com m on j udgm ent . However, t he sake of brevit y, fact s of Writ Pet it ion ( S/ B) No. 266 of 2020 alone are being considered and discussed here.

4. I t is not in disput e t hat pet it ioner was appoint ed as Am in in Minor I rrigat ion Depart m ent of erst while St at e of Ut t ar Pradesh on 15.2.1984. He was given t im e scale of pay of ₹3200- 85- 4900, adm issible for next higher post , w.e.f. 15.2.1998. Thereaft er pet it ioner was given second t im e scale of pay of ₹5200- 20200 (Grade Pay ₹2800) w.e.f. 15.2.2008, aft er com plet ing 24 years of service. Ult im at ely, pet it ioner was grant ed pay scale of ₹9300- 34800 (Grade Pay ₹4200) as 3 rd ACP w.e.f. 15.2.2010. Pursuant t o a policy decision t aken by t he St at e Governm ent , services t he pet it ioner was subsequent ly m erged in t he post of Junior Clerk in a different depart m ent , nam ely, I rrigat ion Depart m ent and t he post of Junior Clerk was redesignat ed as Junior Assist ant w.e.f. 16.1.2013. Pet it ioner was grant ed pay 3 scale of ₹9300- 34800 (Grade Pay ₹4600) w.e.f.

6.11.2013 as upgraded pay scale, which was adm issible for t he post of Deput y Revenue Officer. The said pay scale adm issible for t he post of Deput y Revenue Officer was again upgraded as ₹15600- 39100 ( Grade Pay ₹5400) w.e.f. 11.2.2014. Subsequent ly, t he benefit of upgraded pay scale of Deput y Revenue Officer was wit hdrawn from t he pet it ioner and an order was also passed for recovery of excess am ount paid t o t he pet it ioner on t he ground t hat pet it ioner was not ent it led t o said pay scale. Thus feeling aggrieved, pet it ioner approached t he Tribunal.

5. The Tribunal rej ect ed pet it ioner ’s prayer for grant of Grade Pay of ₹5400 by holding t hat pet it ioner was wrongly given t he pay scale adm issible for t he post of Deput y Revenue Officer, however aut horit ies were rest rained from recovering t he excess am ount paid t o t he pet it ioner by applying t he law declared by Hon’ble Suprem e Court in t he case of St at e of Punj ab v. Rafiq Mashih & Ot hers, report ed as ( 2015) 4 SCC 334.

6. We do not find any reason t o int erfere wit h t he im pugned j udgm ent . Alt hough pet it ioner was earlier serving in Revenue Cadre in Minor I rrigat ion Depart m ent , however his services were subsequent ly m erged in m inist erial cadre in a different depart m ent , nam ely, I rrigat ion Depart m ent . Pet it ioner was given benefit of 3 rd ACP while serving as Am in, however, soon t hereaft er his post was m erged in t he m inist erial cadre and he was absorbed on t he post of Junior Clerk, which was subsequent ly redesignat ed as Junior Assist ant . Thus upon absorpt ion on t he post of Junior Clerk, 4 pet it ioner was not ent it led t o any furt her upgradat ion in pay scale. I n ot her words, he was not ent it led t o t he pay scale adm issible for t he post of Deput y Revenue Officer.

7. Since t he benefit of upgradat ion of pay scale, which was m eant for Deput y Revenue Officer, was wrongly given t o t he pet it ioner, t herefore, t he com pet ent aut horit y was j ust ified in wit hdrawing t he said benefit . Alt hough t he com pet ent aut horit y was j ust ified in passing order recovery of excess paym ent m ade t o t he pet it ioner, however, pet it ioner was given prot ect ion against recovery, as he was serving on a Group ‘C’ post and Hon’ble Suprem e Court in t he case of St at e of Punj ab v. Rafiq Mashih & Ot hers, report ed as ( 2015) 4 SCC 334, has held t hat in such circum st ances, no recovery can be m ade from Group ‘C’ and ‘D’ em ployees,

8. Thus we concur wit h t he reasoning given by t he learned Tribunal. There is no scope for int erference wit h t he im pugned j udgm ent . Accordingly, we dispose of t he writ pet it ions by direct ing t he Head of I rrigat ion Depart m ent t o release all ret iral dues, if already not released, t o t he pet it ioner wit hin six weeks from t he dat e of product ion of cert ified copy of t his order. Any delay beyond six weeks in releasing t he out st anding ret iral dues shall ent it le pet it ioner t o sim ple int erest @ 6 per cent per annum . ( Su b h a sh Up a d h y a y , J.) ( M a n o j K u m a r Ti w a r i , J.) 2 .7 .2 0 2 5 Pr PRABODH KUMAR DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3a082a00a95aff911a9559743af8f21c50602ff6eae4e61af3aeab198d46 2503, postalCode=263001, st=UTTARAKHAND, serialNumber=0DC111E8D8CA66E16B940EFDF806ACCC1AB588052DF6FCA58 C67F3C91957BE53, cn=PRABODH KUMAR 5 6