Anand Kumar Mishra vs State Of U.P. Thru . Prin. Secy. Cooperative Deptt.

2. Heard Shri Rakesh Kumar Singh, learned counsel for the petitioner, learned Standing Counsel for respondent nos. 1 to 2 and Ms. Pragati Singh Advocate, holding brief of R. K. Upadhyay, learned counsel for respondent no. 3 and perused the records.

3. Learned counsel for the petitioner submits that the petitioner was initially appointed to the post of Co-operative Supervisor on 15.05.1995 and he was subsequently promoted to the post of Additional Development Officer, Co-operative under Subordinate Co-operative Services Rules, 2 WRIA No. 3664 of 2023 1979 (in short "Rules, 1979") on the basis of recommendation made by the Departmental Promotion Committee vide recommendation dated

23.04.2015 and the name of the petitioner finds place at Sl.No. 25 in the Promotion Order dated 28.04.2015. In compliance of the Promotion Order, the petitioner had given joining on promoted post on 30.04.2015. After the petitioner gave his joining, the work was allotted to him on

01.05-2015. The promotion of the petitioner was subsequently approved by Chairman, Uttar Pradesh Public Services Commission (in short "UPPSC,") and a letter dated 04.03.2017 was received by the petitioner in which it has been mentioned that the period of probation shall be of two years.

4. He has submitted that on the basis of work and performance on promoted post, the pay of the petitioner was fixed vide order dated

16.12.2019 from 01.01.2016 in pursuance of order dated 25.01.2017 passed by Additional Commissioner, Co-operative, and thereafter the petitioner also received other financial upgradations from time to time.

5. He further submitted that the petitioner has retired from services on

30.06.2022 on attaining the age of superannuation. Thereafter, no dues certificate has also been given to him for the period from 30.04.2015 to

30.06.2022. While re-fixing the pay scale of the petitioner by reducing the pay scale and ordering of recovery by adjusting the same from the petitioner, the Respondent No. 2, i.e., Additional Commissioner and Additional Registrar (Administration) Cooperative, Uttar Pradesh, Lucknow has referred the government order dated 16.12.2016,

20.12.2016 and 22.12.2016. The true copies of the relevant government orders have been filed as Annexure Nos. 9 to 11 respectively to the petition.

6. He also submitted that recovery has been ordered against the petitioner only on the ground that at the time of promotion to the post of Assistant Development Officer, Co-operative the prior approval of the UPPSC was not obtained, but it is admitted that approval of UPPSC has been subsequently obtained. Whatever happened is part of official procedure and petitioner is not at fault on this count. Inasmuch as impugned recovery order dated 28.03.2023 has been passed after retirement on 3 WRIA No. 3664 of 2023 superannuation of the petitioner, which is not legally permissible.

7. Learned Counsel for the petitioner has placed reliance on the judgment passed by Hon'ble Apex Court in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and Others, reported in 2015 (4) SCC 334.

8. With above submissions, he also submitted that in the counter affidavit in paragraph 7, it has been wrongly mentioned that the post held by the petitioner as Cooperative Supervisor (PCU) was a non-government post and employee of the cooperative department. He received salary from State Exchequer for all practical purposes he may be treated as government servant.

9. He submitted that grievance of the petitioner to the impugned recovery order is to the extent whereby recovery has been directed to be made, it is clarified that the amount involved in the recovery is Rs.1,25,448/- which has been withheld from the post retiral dues of the petitioner from

06.03.2017 to 30.06.2022 and which are liable to be refunded.

10. Per contra, learned State Counsel submitted legal position has been clarified elaborately in counter affidavit though the appointment of the petitioner was made under U.P. Provincial Cooperative Union Limited (PCU), which is an apex cooperative society, to the post of Co-operative Supervisor, which is a non-government post under the Sub-ordinate Service Rules, 1979. There is provision of promotion of Co-operative Supervisor to the post of Co-operative Inspector Group II, on the basis of seniority subject to rejection of unfit through UPPSC. As per the recommendation of the Departmental Promotion Committee, dated

23.04.2015, which was constituted vide office order dated 28.04.2015, the promotion orders were issued subject to the approval of UPPSC.

11. The petitioner was also considered and promoted to the post of Co- operative Supervisor (PCU) to the post of Co-operative Inspector Group II, which post falls under the Government and such promotees were given appointments on promoted posts. Since the promotion was not done by the UPPSC as per the provisions contained in Rule 17 of Rules, 1979, the person belonging to the Group II cadre, who were appointees of the 4 WRIA No. 3664 of 2023 Department and under the said rules falls under the category of feeding cadre for promotion on the post of Co-operative Inspector, Group II, approached this Court by filing Writ Petition No. 24825 of 2015 (Chandra Kumar and Others Vs. State of U.P. and Others) and this Court vide interim order dated 01.05.2015 stayed the operation of the promotion order dated 28.04.2015 till the next date of hearing and the matter was directed to be listed after three weeks. Against the said order dated

01.05.2015, some Co-operative Supervisors (PCU) filed Special Appeal No. 360 of 2015 (Dilip Singh and Others Vs. State of U.P. and Others), in which this Court was pleased to pass a detailed order dated 28.05.2015, and whereby the order of Hon'ble Single Judge dated 01.05.2015 was modified as under:- "In our opinion interest of justice would have been served if the Hon'ble Single Judge would have provided that (a) promotion of the appellants shall be treated to be temporary under Rule 19 of the 1979 Rules which continue for a maximum period of one year, (b) U.P. Public Service Commission should complete the process of regular promotion on the post of Inspector Group III under the 1979 Rules, within six months of the receipt of the certified copy of this order, (c) the petitioners before the High Court are permitted to raise all such legal and factual objections in the matter of consideration of respondents-appellants for regular promotion before the Commission, which shall examine the eligibility of Supervisors like the appellants to be considered for promotion. We order accordingly. The order of the Hon'ble Single Judge dated

01.05.2015 is modified accordingly. We also provide that the Commission shall apply its mind in the matter of eligibility of the Co-operative Supervisor like the appellants in the matter of promotion and shall pass a reasoned order in that respect. Appeal stands disposed of."

12. He further submitted that in compliance of this Court order dated

28.05.2015, Office Order dated 02.06.2015 was issued mentioning therein that the services of the candidates who were promoted on the post of Co- operative Inspector Grade II shall be for one year on ad-hoc basis. The 5 WRIA No. 3664 of 2023 earlier Office Order dated 05.05.2015, which was issued in compliance of order dated 01.05.2015 was cancelled. In the same sequence, vide letter dated 24.09.2015, the requisition was forwarded to UPPSC with request for making promotion on the post of Cooperative Inspector Grade II. A four-member committee was constituted, which in its meeting dated

04.06.2015 took decision on repatriating the candidates who were given promotion on ad-hoc basis for one year to three original post i.e., Co- operative Supervisor (PCU), against which Rakesh Singh and Others approached this Court by filing Writ Petition No. 28432 of 2016 in which Court vide order dated 10.06.2016 stayed the order dated 04.06.2016, and in compliance thereof, again the operation of order dated 04.06.2016 was kept in abeyance till the next date of listing.

13. He also submitted that the service record of petitioner was examined on application for leave encashment of earned leaves wherein many deficiencies came to light and instructions were given to Assistant Commissioner and Assistant Registrar, Cooperative District Unnao to resolve the matter and send it back to head office. These officers sent the case of the petitioner to headquarters after resolving the deficiencies in which it was also informed that salary of the petitioner has not been fixed after the regular promotion order dated 04.03.2017.

14. Learned Standing Counsel has also placed reliance on the advisory issued by the Finance Department of the Government, which may be reproduced as under. "ऐसे ्िि्व का जो पहले से सरकार के अधीन कोई पद धारण कर रहा हो, पिरवी्षा अविध में वेतन सुसंगत फन्डामेन्टल रुल्स ्षारा िविनयिमत होगा । चू ंिक इस िनयम में के वल िकसी सरकारी सेवा में ्ऺाप्त वेतन को ही संरि्षत करने का ्ऺािवधान िकया गया है िकसी कोआपरेिटव यूिनयन या िकसी गैर सरकारी सेवा के वेतन संर्षण का ्ऺािवधान नहीं है इसिलये इस िनयम के तहत सै० जुिल्फकार अली को वेतन संर्षण व उस आधार पर वेतन िनधार्रण का लाभ अनुमन्य नहीं है। चू ंिक िकसी भी शासनादेश की ्िवस्था िनयम की ्िवस्था का अित्वमण नही कर सकती इसिलये पूवर् में जो भी शासनादेश इस सम्बन्ध में िनगर्त िकए गए हों, वे िनष््ऺभावी है क्योंिक, िनयम की ्िवस्था में िभन्न ्ऺािवधान है। "उ्व के आधार पर ्ऺकरण के सम्बन्ध में अ्षेतर िविधक ्ऺितवाद िकया जाय।"

15. He lastly submitted that it is provided that the salary of the person 6 WRIA No. 3664 of 2023 who has been holding office under the Government, basically during the period of probation, shall be regulated under relevant Fundamental Rules. The post also held by the petitioner as Co-operative Supervisor is a non- Government post.

16. On above submissions, learned Standing Counsel concluded that grounds taken in the present petition are not sufficient to set aside the impugned order and the writ petition is liable to be dismissed.

17. Considered the aforesaid and perused the records.

18. It would be relevant to refer the law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (Supra):- "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." 7 WRIA No. 3664 of 2023

19. Since, the controversy involved is short and legal in nature hence the petition itself is being finally disposed of as no purpose would be served in keeping the matter pending has been redetermined by the impugned order dated 28.03.2023. In consequence thereof, the recovery of was made from the petitioner by passing the impugned order dated

28.03.2023. It is also not the case that there was any misrepresentation or fault on the part of the petitioner in wrong fixation/redetermination of his salary. So keeping in view the aforesaid facts, the same cannot be recovered from the petitioner.

20. The case of the petitioner is squarely covered by the decision/law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra), particularly by condition nos. (i) and (ii) of the Hon'ble Supreme Court quoted in the earlier paragraph, which the learned State Counsel has been unable to distinguish.

21. Accordingly, the writ petition is allowed.

22. In view of the facts and circumstances discussed above, the impugned order dated 28.03.2023 is hereby set-aside.

23. Respondent no. 2, Additional Commissioner and Additional Registrar (Administration), Co-operative, Uttar Pradesh, Lucknow is directed to ensure the payment which has been withheld or recovered from the petitioner within a period of two months from the date of production of certified copy of this order. October 6, 2025 Mohit Singh/- (Ram Manohar Narayan Mishra,J.) MOHIT SINGH High Court of Judicature at Allahabad, Lucknow Bench

2. Heard Shri Rakesh Kumar Singh, learned counsel for the petitioner, learned Standing Counsel for respondent nos. 1 to 2 and Ms. Pragati Singh Advocate, holding brief of R. K. Upadhyay, learned counsel for respondent no. 3 and perused the records.

3. Learned counsel for the petitioner submits that the petitioner was initially appointed to the post of Co-operative Supervisor on 15.05.1995 and he was subsequently promoted to the post of Additional Development Officer, Co-operative under Subordinate Co-operative Services Rules, 2 WRIA No. 3664 of 2023 1979 (in short "Rules, 1979") on the basis of recommendation made by the Departmental Promotion Committee vide recommendation dated

23.04.2015 and the name of the petitioner finds place at Sl.No. 25 in the Promotion Order dated 28.04.2015. In compliance of the Promotion Order, the petitioner had given joining on promoted post on 30.04.2015. After the petitioner gave his joining, the work was allotted to him on

01.05-2015. The promotion of the petitioner was subsequently approved by Chairman, Uttar Pradesh Public Services Commission (in short "UPPSC,") and a letter dated 04.03.2017 was received by the petitioner in which it has been mentioned that the period of probation shall be of two years.

4. He has submitted that on the basis of work and performance on promoted post, the pay of the petitioner was fixed vide order dated

16.12.2019 from 01.01.2016 in pursuance of order dated 25.01.2017 passed by Additional Commissioner, Co-operative, and thereafter the petitioner also received other financial upgradations from time to time.

5. He further submitted that the petitioner has retired from services on

30.06.2022 on attaining the age of superannuation. Thereafter, no dues certificate has also been given to him for the period from 30.04.2015 to

30.06.2022. While re-fixing the pay scale of the petitioner by reducing the pay scale and ordering of recovery by adjusting the same from the petitioner, the Respondent No. 2, i.e., Additional Commissioner and Additional Registrar (Administration) Cooperative, Uttar Pradesh, Lucknow has referred the government order dated 16.12.2016,

20.12.2016 and 22.12.2016. The true copies of the relevant government orders have been filed as Annexure Nos. 9 to 11 respectively to the petition.

6. He also submitted that recovery has been ordered against the petitioner only on the ground that at the time of promotion to the post of Assistant Development Officer, Co-operative the prior approval of the UPPSC was not obtained, but it is admitted that approval of UPPSC has been subsequently obtained. Whatever happened is part of official procedure and petitioner is not at fault on this count. Inasmuch as impugned recovery order dated 28.03.2023 has been passed after retirement on 3 WRIA No. 3664 of 2023 superannuation of the petitioner, which is not legally permissible.

7. Learned Counsel for the petitioner has placed reliance on the judgment passed by Hon'ble Apex Court in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and Others, reported in 2015 (4) SCC 334.

8. With above submissions, he also submitted that in the counter affidavit in paragraph 7, it has been wrongly mentioned that the post held by the petitioner as Cooperative Supervisor (PCU) was a non-government post and employee of the cooperative department. He received salary from State Exchequer for all practical purposes he may be treated as government servant.

9. He submitted that grievance of the petitioner to the impugned recovery order is to the extent whereby recovery has been directed to be made, it is clarified that the amount involved in the recovery is Rs.1,25,448/- which has been withheld from the post retiral dues of the petitioner from

06.03.2017 to 30.06.2022 and which are liable to be refunded.

10. Per contra, learned State Counsel submitted legal position has been clarified elaborately in counter affidavit though the appointment of the petitioner was made under U.P. Provincial Cooperative Union Limited (PCU), which is an apex cooperative society, to the post of Co-operative Supervisor, which is a non-government post under the Sub-ordinate Service Rules, 1979. There is provision of promotion of Co-operative Supervisor to the post of Co-operative Inspector Group II, on the basis of seniority subject to rejection of unfit through UPPSC. As per the recommendation of the Departmental Promotion Committee, dated

23.04.2015, which was constituted vide office order dated 28.04.2015, the promotion orders were issued subject to the approval of UPPSC.

11. The petitioner was also considered and promoted to the post of Co- operative Supervisor (PCU) to the post of Co-operative Inspector Group II, which post falls under the Government and such promotees were given appointments on promoted posts. Since the promotion was not done by the UPPSC as per the provisions contained in Rule 17 of Rules, 1979, the person belonging to the Group II cadre, who were appointees of the 4 WRIA No. 3664 of 2023 Department and under the said rules falls under the category of feeding cadre for promotion on the post of Co-operative Inspector, Group II, approached this Court by filing Writ Petition No. 24825 of 2015 (Chandra Kumar and Others Vs. State of U.P. and Others) and this Court vide interim order dated 01.05.2015 stayed the operation of the promotion order dated 28.04.2015 till the next date of hearing and the matter was directed to be listed after three weeks. Against the said order dated

01.05.2015, some Co-operative Supervisors (PCU) filed Special Appeal No. 360 of 2015 (Dilip Singh and Others Vs. State of U.P. and Others), in which this Court was pleased to pass a detailed order dated 28.05.2015, and whereby the order of Hon'ble Single Judge dated 01.05.2015 was modified as under:- "In our opinion interest of justice would have been served if the Hon'ble Single Judge would have provided that (a) promotion of the appellants shall be treated to be temporary under Rule 19 of the 1979 Rules which continue for a maximum period of one year, (b) U.P. Public Service Commission should complete the process of regular promotion on the post of Inspector Group III under the 1979 Rules, within six months of the receipt of the certified copy of this order, (c) the petitioners before the High Court are permitted to raise all such legal and factual objections in the matter of consideration of respondents-appellants for regular promotion before the Commission, which shall examine the eligibility of Supervisors like the appellants to be considered for promotion. We order accordingly. The order of the Hon'ble Single Judge dated

01.05.2015 is modified accordingly. We also provide that the Commission shall apply its mind in the matter of eligibility of the Co-operative Supervisor like the appellants in the matter of promotion and shall pass a reasoned order in that respect. Appeal stands disposed of."

12. He further submitted that in compliance of this Court order dated

28.05.2015, Office Order dated 02.06.2015 was issued mentioning therein that the services of the candidates who were promoted on the post of Co- operative Inspector Grade II shall be for one year on ad-hoc basis. The 5 WRIA No. 3664 of 2023 earlier Office Order dated 05.05.2015, which was issued in compliance of order dated 01.05.2015 was cancelled. In the same sequence, vide letter dated 24.09.2015, the requisition was forwarded to UPPSC with request for making promotion on the post of Cooperative Inspector Grade II. A four-member committee was constituted, which in its meeting dated

04.06.2015 took decision on repatriating the candidates who were given promotion on ad-hoc basis for one year to three original post i.e., Co- operative Supervisor (PCU), against which Rakesh Singh and Others approached this Court by filing Writ Petition No. 28432 of 2016 in which Court vide order dated 10.06.2016 stayed the order dated 04.06.2016, and in compliance thereof, again the operation of order dated 04.06.2016 was kept in abeyance till the next date of listing.

13. He also submitted that the service record of petitioner was examined on application for leave encashment of earned leaves wherein many deficiencies came to light and instructions were given to Assistant Commissioner and Assistant Registrar, Cooperative District Unnao to resolve the matter and send it back to head office. These officers sent the case of the petitioner to headquarters after resolving the deficiencies in which it was also informed that salary of the petitioner has not been fixed after the regular promotion order dated 04.03.2017.

14. Learned Standing Counsel has also placed reliance on the advisory issued by the Finance Department of the Government, which may be reproduced as under. "ऐसे ्िि्व का जो पहले से सरकार के अधीन कोई पद धारण कर रहा हो, पिरवी्षा अविध में वेतन सुसंगत फन्डामेन्टल रुल्स ्षारा िविनयिमत होगा । चू ंिक इस िनयम में के वल िकसी सरकारी सेवा में ्ऺाप्त वेतन को ही संरि्षत करने का ्ऺािवधान िकया गया है िकसी कोआपरेिटव यूिनयन या िकसी गैर सरकारी सेवा के वेतन संर्षण का ्ऺािवधान नहीं है इसिलये इस िनयम के तहत सै० जुिल्फकार अली को वेतन संर्षण व उस आधार पर वेतन िनधार्रण का लाभ अनुमन्य नहीं है। चू ंिक िकसी भी शासनादेश की ्िवस्था िनयम की ्िवस्था का अित्वमण नही कर सकती इसिलये पूवर् में जो भी शासनादेश इस सम्बन्ध में िनगर्त िकए गए हों, वे िनष््ऺभावी है क्योंिक, िनयम की ्िवस्था में िभन्न ्ऺािवधान है। "उ्व के आधार पर ्ऺकरण के सम्बन्ध में अ्षेतर िविधक ्ऺितवाद िकया जाय।"

15. He lastly submitted that it is provided that the salary of the person 6 WRIA No. 3664 of 2023 who has been holding office under the Government, basically during the period of probation, shall be regulated under relevant Fundamental Rules. The post also held by the petitioner as Co-operative Supervisor is a non- Government post.

16. On above submissions, learned Standing Counsel concluded that grounds taken in the present petition are not sufficient to set aside the impugned order and the writ petition is liable to be dismissed.

17. Considered the aforesaid and perused the records.

18. It would be relevant to refer the law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (Supra):- "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." 7 WRIA No. 3664 of 2023

19. Since, the controversy involved is short and legal in nature hence the petition itself is being finally disposed of as no purpose would be served in keeping the matter pending has been redetermined by the impugned order dated 28.03.2023. In consequence thereof, the recovery of was made from the petitioner by passing the impugned order dated

28.03.2023. It is also not the case that there was any misrepresentation or fault on the part of the petitioner in wrong fixation/redetermination of his salary. So keeping in view the aforesaid facts, the same cannot be recovered from the petitioner.

20. The case of the petitioner is squarely covered by the decision/law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra), particularly by condition nos. (i) and (ii) of the Hon'ble Supreme Court quoted in the earlier paragraph, which the learned State Counsel has been unable to distinguish.

21. Accordingly, the writ petition is allowed.

22. In view of the facts and circumstances discussed above, the impugned order dated 28.03.2023 is hereby set-aside.

23. Respondent no. 2, Additional Commissioner and Additional Registrar (Administration), Co-operative, Uttar Pradesh, Lucknow is directed to ensure the payment which has been withheld or recovered from the petitioner within a period of two months from the date of production of certified copy of this order. October 6, 2025 Mohit Singh/- (Ram Manohar Narayan Mishra,J.) MOHIT SINGH High Court of Judicature at Allahabad, Lucknow Bench