High Court · 2025

1. Heard Sri Manish Singh, learned counsel for the petitioner and learned Standing Counsel for the State.

2. By means of this petition filed under Article 226 of Constitution of India, the petitioner has assailed the order dated 13.07.2022 whereby not only the correction in the pay fixation of the petitioner has been done with effect from 1992 but even recovery has been directed on account of assessment of excess payment made to the petitioner for such pay fixation. Hence the consequential order deducting the amount of Rs.12,64,917/- has been done under the order dated 13.07.2022 is also under challenge.

3. It is argued by learned counsel for the petitioner that the petitioner who was initially appointed as seasonal collection ameen on 03.03.1976 came to be given regular permanent appointment under the relevant service rules on 24.08.2006 for giving benefit to the petitioner with effect from 17.01.1992 as in similar matters orders were passed vide Writ Petition No.4668 of 2017 that came to be disposed of with a direction to decide the claim of the petitioner under order of the High Court dated 31.08.2021 and it is in compliance of the said order that benefit was conferred upon, by the District Magistrate on 06.05.2022 deciding the matter and directing for dues. payment retirement

4. It is argued by learned counsel for the petitioner that even though the petitioner had retired on 30.03.2017 but the service benefits and retirement benefits remained pending consideration on account of improper assessment of regular pay scale. All similarly placed employees including the petitioner came to file petition before this Court being no.4668 of 2017 which stood disposed of vide order dated 23.08.2021. It is in compliance of the order of the High Court that the District Magistrate came to pass final order for payment of all the dues on 16.12.2016 pursuant to which the Sub Divisional OfÏcer passed a consequential order on 20.12.2016. It is submitted that it is on account of such pay fixation that ultimately salary was paid. However, it is contended, petitioner upon retirement unlike similarly placed other employees was not paid the terminal dues so he filed a petition being Writ A No.67258 of 2013 which stood disposed of vide order dated 31.08.2021 but again when nothing further progressed, petitioner and other employees moved contempt application being Contempt Application (Civil) No.298 of 2022 and it is upon cognizance being taken in the matter of contempt petition that the impugned order came to be passed.

5. The submission is that while passing the order on 06.05.2022, the respondent-District Magistrate has proceeded to pass order directing the authorities to clear the terminal dues, the Sub Divisional OfÏcer wholly erroneously further refixed the salary of the petitioner with effect from 1992 holding that the petitioner was to be awarded selection grade and promotional grade taking regular service with effect only. 28.08.2006

6. According to learned counsel for the petitioner the order of Sub Divisional OfÏcer is assailable on twin grounds: Firstly he sat in appeal over and above the order passed by the District Magistrate on 26.04.2016 which he could not have done; and secondly, in view of the Government Order issued in 2007, the refixation could not have been done beyond a period of 34 weeks from the date of retirement of the employee. He has also placed reliance upon the judgment of the Supreme Court in the case of Sushil Kumar Singhal Vs. Pramukh Sachiv Irrigation Department and others: 2014 (16) SCC 444 in which Government Order 16.01.2007 was discussed and interpreted.

7. It is further contended that the recovery in such matter could not have been ordered from the retirement dues of the retired employee, and petitioner being a Class III employee, recovery was hit by judgment of the Supreme Court in the case of State Of Punjab & Ors vs Rafiq Masih (White Washer): AIR 2015 Supreme Court 696.

8. It is also contended that since the petitioner had never made any mis-representation with regard to his service benefit claims while earlier matter was decided by the District Magistrate, petitioner cannot be held liable to recovery even on the principles of law laid down by the Supreme Court in the case of High Court of Punjab and Haryana & others v. Jagdev Singh: (2016) 14 SCC 267.

9. Learned Standing Counsel opposing the petition has placed reliance upon the counter afÏdavit in the matter justifying the stand of refixation on the ground that the salary fixation done by the District Magistrate was erroneous one and thus has sought to justify the order for the reasons assigned therein. However, on the question of fixation afresh of the pay of a retired employee beyond period of 34 weeks as restrained under the Government Order dated 16.01.2007 learned Standing Counsel could not dispute that provisions contained under the Government Order as well as the Supreme Court Judgment relied upon by learned counsel for the petitioner. He also could not dispute the legal principles laid down in the case of Rafiq Masih (Supra) and could not demonstrate from any averments made in the counter afÏdavit that at any point of time any undertaking was given by the petitioner for refund of the amount on account of alleged wrong fixation when the order was passed in the year 2016 by the District Magistrate concerned and consequential order passed by the concerned Sub Divisional OfÏcer. He further could not justify the action of the Sub Divisional OfÏcer sitting in appeal over and above the order passed by the District Magistrate, nor could demonstrate from the recitals contained in the order impugned that any such prior permission or approval was taken from the District Magistrate before passing the order or even after any approval was granted by the District Magistrate.

10. I find that the District Magistrate had finally decided the matter under his order dated 26.04.2016 in compliance of the order of Writ Court passed in Writ A No.62250 of 2013 and gave benefit of pay fixation to the petitioner since 2006 giving benefit of service with effect from 17.01.1992. This benefit has been accorded notionally so as to benefit the petitioner with selection grade. It appears that some review application was pending in respect of order passed in Writ A No.62250 of 2013 and therefore, the District Magistrate also passed order to the effect that the order passed by him on 26.04.2025 shall abide by the final order that may be passed in review in the writ petition. This order passed by the District Magistrate has now been recalled while there is nothing coming forth in the counter afÏdavit that any review petition if filed in the matter of order passed in Writ A No.62250 of 2013, was ever allowed or disposed of with a direction to redecide the matter.

11. In the circumstances therefore, the order passed by the District Magistrate shall have to be taken as final one and in my considered view, therefore, the Sub Divisional Magistrate who had earlier passed an order on 16.12.2016 as a consequence to the order of District Magistrate dated 26.04.2016, could not have rectified pay fixation holding that the petitioner was wrongly awarded notional benefit by counting the period with effect from 17.01.1992. Thus it as an act of insubordination by the Sub Divisional Magistrate, Rudrapur in passing order dated 13.07.2022 without seeking prior permission from District Magistrate and for which he deserves to be not only reprimanded but also proceed with a departmental proceedings. The order of District Magistrate having become final in the matter of pay- fixation giving notional benefit counting the period of service with effect from 17.01.1992, the order of refixation passed by the Sub Division OfÏcer and that too after the petitioner had attained the age of superannuation is per se bad and hence deserves to aside.

12. Besides the above, fixation having taken place previously on 16.12.2016 in view of the Government Order dated 16.01.2007 and the judgment of the Supreme Court in the matter of Sushil Kumar Singhal (supra) interpreting the same no refixation could have been done beyond period of 34 weeks. Thus correction in earlier fixation of salary is held unsustainable.

13. The Sub Divisional OfÏcer having exceeded his authority in passing the order and petitioner having not only been penalised with the recovery but also being forced to approach a court of law after attaining age of superannuation wayback on 31.03.2017, he in fact deserves refund with interest.

14. Writ petition succeeds and is allowed. The order passed by the Sub Divisional OfÏcer dated 13.07.2022 impugned as Annexure 14 to the writ petition is hereby quashed. The respondent concerned is directed to review the impugned representation of the petitioner as a consequence to the order impugned alongwith interest @ 12 per cent with a maximum period of two months of production of certified copy of this order. If the amount is not refunded alongwith interest then the Sub Divisional OfÏcer concerned would be liable to pay interest @ 18 per cent from the date recovery has been done till made. payment actual

15. It is left open for the State-respondents to recover the amount from the then Sub Divisional OfÏcer, Rudrapur for whose conduct petitioner was forced to approach this Court and amount has directed to be refunded with interest. Order Date :- 16.5.2025 Deepika DEEPIKA SINGH High Court of Judicature at Allahabad

1. Heard Sri Manish Singh, learned counsel for the petitioner and learned Standing Counsel for the State.

2. By means of this petition filed under Article 226 of Constitution of India, the petitioner has assailed the order dated 13.07.2022 whereby not only the correction in the pay fixation of the petitioner has been done with effect from 1992 but even recovery has been directed on account of assessment of excess payment made to the petitioner for such pay fixation. Hence the consequential order deducting the amount of Rs.12,64,917/- has been done under the order dated 13.07.2022 is also under challenge.

3. It is argued by learned counsel for the petitioner that the petitioner who was initially appointed as seasonal collection ameen on 03.03.1976 came to be given regular permanent appointment under the relevant service rules on 24.08.2006 for giving benefit to the petitioner with effect from 17.01.1992 as in similar matters orders were passed vide Writ Petition No.4668 of 2017 that came to be disposed of with a direction to decide the claim of the petitioner under order of the High Court dated 31.08.2021 and it is in compliance of the said order that benefit was conferred upon, by the District Magistrate on 06.05.2022 deciding the matter and directing for dues. payment retirement

4. It is argued by learned counsel for the petitioner that even though the petitioner had retired on 30.03.2017 but the service benefits and retirement benefits remained pending consideration on account of improper assessment of regular pay scale. All similarly placed employees including the petitioner came to file petition before this Court being no.4668 of 2017 which stood disposed of vide order dated 23.08.2021. It is in compliance of the order of the High Court that the District Magistrate came to pass final order for payment of all the dues on 16.12.2016 pursuant to which the Sub Divisional OfÏcer passed a consequential order on 20.12.2016. It is submitted that it is on account of such pay fixation that ultimately salary was paid. However, it is contended, petitioner upon retirement unlike similarly placed other employees was not paid the terminal dues so he filed a petition being Writ A No.67258 of 2013 which stood disposed of vide order dated 31.08.2021 but again when nothing further progressed, petitioner and other employees moved contempt application being Contempt Application (Civil) No.298 of 2022 and it is upon cognizance being taken in the matter of contempt petition that the impugned order came to be passed.

5. The submission is that while passing the order on 06.05.2022, the respondent-District Magistrate has proceeded to pass order directing the authorities to clear the terminal dues, the Sub Divisional OfÏcer wholly erroneously further refixed the salary of the petitioner with effect from 1992 holding that the petitioner was to be awarded selection grade and promotional grade taking regular service with effect only. 28.08.2006

6. According to learned counsel for the petitioner the order of Sub Divisional OfÏcer is assailable on twin grounds: Firstly he sat in appeal over and above the order passed by the District Magistrate on 26.04.2016 which he could not have done; and secondly, in view of the Government Order issued in 2007, the refixation could not have been done beyond a period of 34 weeks from the date of retirement of the employee. He has also placed reliance upon the judgment of the Supreme Court in the case of Sushil Kumar Singhal Vs. Pramukh Sachiv Irrigation Department and others: 2014 (16) SCC 444 in which Government Order 16.01.2007 was discussed and interpreted.

7. It is further contended that the recovery in such matter could not have been ordered from the retirement dues of the retired employee, and petitioner being a Class III employee, recovery was hit by judgment of the Supreme Court in the case of State Of Punjab & Ors vs Rafiq Masih (White Washer): AIR 2015 Supreme Court 696.

8. It is also contended that since the petitioner had never made any mis-representation with regard to his service benefit claims while earlier matter was decided by the District Magistrate, petitioner cannot be held liable to recovery even on the principles of law laid down by the Supreme Court in the case of High Court of Punjab and Haryana & others v. Jagdev Singh: (2016) 14 SCC 267.

9. Learned Standing Counsel opposing the petition has placed reliance upon the counter afÏdavit in the matter justifying the stand of refixation on the ground that the salary fixation done by the District Magistrate was erroneous one and thus has sought to justify the order for the reasons assigned therein. However, on the question of fixation afresh of the pay of a retired employee beyond period of 34 weeks as restrained under the Government Order dated 16.01.2007 learned Standing Counsel could not dispute that provisions contained under the Government Order as well as the Supreme Court Judgment relied upon by learned counsel for the petitioner. He also could not dispute the legal principles laid down in the case of Rafiq Masih (Supra) and could not demonstrate from any averments made in the counter afÏdavit that at any point of time any undertaking was given by the petitioner for refund of the amount on account of alleged wrong fixation when the order was passed in the year 2016 by the District Magistrate concerned and consequential order passed by the concerned Sub Divisional OfÏcer. He further could not justify the action of the Sub Divisional OfÏcer sitting in appeal over and above the order passed by the District Magistrate, nor could demonstrate from the recitals contained in the order impugned that any such prior permission or approval was taken from the District Magistrate before passing the order or even after any approval was granted by the District Magistrate.

10. I find that the District Magistrate had finally decided the matter under his order dated 26.04.2016 in compliance of the order of Writ Court passed in Writ A No.62250 of 2013 and gave benefit of pay fixation to the petitioner since 2006 giving benefit of service with effect from 17.01.1992. This benefit has been accorded notionally so as to benefit the petitioner with selection grade. It appears that some review application was pending in respect of order passed in Writ A No.62250 of 2013 and therefore, the District Magistrate also passed order to the effect that the order passed by him on 26.04.2025 shall abide by the final order that may be passed in review in the writ petition. This order passed by the District Magistrate has now been recalled while there is nothing coming forth in the counter afÏdavit that any review petition if filed in the matter of order passed in Writ A No.62250 of 2013, was ever allowed or disposed of with a direction to redecide the matter.

11. In the circumstances therefore, the order passed by the District Magistrate shall have to be taken as final one and in my considered view, therefore, the Sub Divisional Magistrate who had earlier passed an order on 16.12.2016 as a consequence to the order of District Magistrate dated 26.04.2016, could not have rectified pay fixation holding that the petitioner was wrongly awarded notional benefit by counting the period with effect from 17.01.1992. Thus it as an act of insubordination by the Sub Divisional Magistrate, Rudrapur in passing order dated 13.07.2022 without seeking prior permission from District Magistrate and for which he deserves to be not only reprimanded but also proceed with a departmental proceedings. The order of District Magistrate having become final in the matter of pay- fixation giving notional benefit counting the period of service with effect from 17.01.1992, the order of refixation passed by the Sub Division OfÏcer and that too after the petitioner had attained the age of superannuation is per se bad and hence deserves to aside.

12. Besides the above, fixation having taken place previously on 16.12.2016 in view of the Government Order dated 16.01.2007 and the judgment of the Supreme Court in the matter of Sushil Kumar Singhal (supra) interpreting the same no refixation could have been done beyond period of 34 weeks. Thus correction in earlier fixation of salary is held unsustainable.

13. The Sub Divisional OfÏcer having exceeded his authority in passing the order and petitioner having not only been penalised with the recovery but also being forced to approach a court of law after attaining age of superannuation wayback on 31.03.2017, he in fact deserves refund with interest.

14. Writ petition succeeds and is allowed. The order passed by the Sub Divisional OfÏcer dated 13.07.2022 impugned as Annexure 14 to the writ petition is hereby quashed. The respondent concerned is directed to review the impugned representation of the petitioner as a consequence to the order impugned alongwith interest @ 12 per cent with a maximum period of two months of production of certified copy of this order. If the amount is not refunded alongwith interest then the Sub Divisional OfÏcer concerned would be liable to pay interest @ 18 per cent from the date recovery has been done till made. payment actual

15. It is left open for the State-respondents to recover the amount from the then Sub Divisional OfÏcer, Rudrapur for whose conduct petitioner was forced to approach this Court and amount has directed to be refunded with interest. Order Date :- 16.5.2025 Deepika DEEPIKA SINGH High Court of Judicature at Allahabad