High Court
Case Details
Neutral Citation No. - 2025:AHC:60046 Court No. - 38 Case :- WRIT - A No. - 63924 of 2011 Petitioner :- Kishore Kumar Balani Respondent :- State Of U.P. Thru Secy. And Others Counsel for Petitioner :- Akhilesh Kumar Singh,Krishna Mohan Asthana Counsel for Respondent :- Alok Dwivedi,Y.K.Yadav Hon'ble Donadi Ramesh,J.
Facts
The grievance of the petitioner in the present writ petition is that the father of the petitioner Late Hari Lal Balani, was working as a Teacher in grade of Rs.365-555 in Swami Leelashah Adarsh Sindhi Inter College, Agra. As he was a confirmed teacher, while working he died in harness on 26.12.1989. As the petitioner was pursuing intermediate in the year 1991, he moved an application on 05.09.1992 for appointment on compassionate ground after completion of intermediate, as his father died in harness. The D.I.O.S Agra, vide orders dated 03.02.1993 appointed the petitioner on the post of Class-IV on compassionate grounds and accordingly the Principal has issued appointment letter to the petitioner on Class-IV post. As the petitioner is eligible for appointment to the post of Assistant Clerk, he moved an application/ representation to the D.I.O.S on 26.08.1993 as per the State notification dated 30.07.1992. After several reminders the D.I.O.S. has considered and appointed the petitioner as an Assistant Clerk vide order dated 24.12.1994. Since the appointment of the petitioner as an Assistant Clerk is made by creating supernumerary posts, he was continuously working as Assistant Clerk in the college of fifth-respondent. Based on audit objection after 16 years the respondents have passed impugned order dated 10.10.2011 reverting the post to the Class-IV in addition to recovery of different amounts. Aggrieved by the said orders the present writ petition has been filed. In the present writ petition this Court has passed the following order dated 07.12.2011:-
Legal Reasoning
Thereafter, the fifth-respondent has filed counter affidavit. The petitioner has filed supplementary affidavit dated 21.07.2024 annexing the orders in Writ A No.39053 of 2012 wherein the identical employees have filed the said writ petition questioning the impugned order dated 10.10.2011. It is also pertinent to note that the petitioner in the said writ petition are employees of the same institution. While considering the issue this Court in the said writ petition has made following order:- "Undisputedly the petitioner was appointed on compassionate ground initially on 28.02.1993 as Class-IV employee but he continued to agitate for her appointment as Class-III employee on the basis of her qualification. The Committee constituted under the Regulation considered the case of the petitioner and found her eligible for appointment as junior clerk. Pursuant to the recommendation of the Committee, the D.I.O.S. Agra appointed the petitioner as junior clerk in the respondent institution by appointment order dated 24.12.1994. There is no allegation in the impugned order dated 10.10.2011 passed by the respondent No.4 that the petitioner has committed any illegallty or played any fraud to obtain the appointment order dated 24.12.1994. Under the circumstances, to recall the appointment order dated 24.12.1994, after about 17 years and that too after retirement of the petitioner cannot be said to be justified. That apart, despite being asked, learned standing counsel could not point out any statutory provision which confers power upon, the D.I.0.S. to review an appointment order and to recall it. By the impugned order dated 10.10.2011, the difference of salary between the amount received by the petitioner as class-III employee and the salary payable to a class-IV employee, has been sought to be recovered. In the case of State of Punjab vs. Rafiq Masih (supra), Hon'ble Supreme Court considered the question of recovery from class-III and class-IV employee and held as under:- "12. 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). (il) 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." The law laid down by Hon'ble Supreme Court as afore-quoted is squarely applicable upon the petitioner who was class-III employee and has retired even prior to passing of the impugned order dated 10.10.2011. Under the circumstances and respectfully following the law laid down in the case of State of Punjab vs. Rafiq Masih (supra), no recovery can be made from the petitioner. Consequently, the impugned order in so far it relates to the petitioner deserves to be quashed.
Arguments
"Learned Standing Counsel represents respondent nos. 1 to 4. Sri Alok Dwivedi, Advocate has accepted notice on behalf of respondent nos. 5 and 6. They are granted three weeks' time to file counter affidavit. Petitioner shall have two weeks' time to file rejoinder affidavit thereafter. List this matter on 18th January, 2011 From the order of the District Inspector of Schools dated 10th October, 2011, it is apparently clear that the petitioner was offered appointment on compassionate ground against a Class-IV post on 3rd February, 1993. Subsequently under an order dated 24th December, 1994, petitioner was appointed as Clerk against a superannuary post. Appointment of the petitioner as clerk against superannuary post, on the face of it, is contrary to Regulation 103 read with Regulation 105 of Chapter III of the Regulations framed under U.P. Intermediate Education Act, 1921 inasmuch as no superannuary post is required to be created unless there is no ministerial post available for appointment of dependant in the entire district. However, since no fraud or misrepresentation is alleged against the petitioner, recovery of the amount paid to the petitioner as salary while working as clerk during all these period cannot be prima facie recovered. Therefore, as an interim measure it is provided as follows: No recovery of the salary paid to the petitioner from the date of order of appointment as clerk to 10th October, 2011 shall be made. However, it shall be open to the respondent no. 1 to recover the loss caused to the State Government because of illegal action of the District Inspector of Schools appointing the petitioner on Class-III post against a superannuary Class III post in the year 1994 from the District Inspector of Schools himself. On behalf of the respondent nos. 5 and 6, it is appointed out that there is only one Class III post available in the institution, when as matter of fact as on date three persons are be appointed against superannuary posts in the same institution. The situation is alarming. The District Inspector of Schools must rectify the same immediately and file an affidavit qua the action taken by the next date."
Decision
In view of the above discussion, the impugned order dated 10.10.2011 passed by the respondent No.4 is quashed. The writ petition is allowed. The petitioner shall be entitled to post retirement benefits in accordance with law." No doubt the issue was already decided by the Court in the above Writ A No.39053 of 2012 and learned counsel for respondent no.5 has stated that no special appeal has been filed against the said orders. In view of the said circumstances, as the petitioner is also identically situated as the petitioner in the above said writ petition, and the impugned order dated 10.10.2011 was already set aside by this Court with regard to other employees. Hence this writ petition is also allowed on the same terms and the impugned order dated 10.10.2011 is set aside with the same observations. Order Date :- 22.4.2025 A Gautam (Donadi Ramesh,J.) Digitally signed by :- ADITYA GAUTAM High Court of Judicature at Allahabad