STATE OF U P Vs. RAM ADHAR SINGH

JUDGEMENT

(1.) The learned Single Judge has allowed the writ petition filed by the respondent, who retired on 30 June 2012 after thirty five years of service as Ziledar, challenging a recovery which was sought to be effected from his retiral benefits on the ground that he had been granted the benefit of an Assured Career Promotion (ACP) scheme contrary to law. The learned Single Judge has set aside the action on two counts: firstly, on merits by holding that the grant of ACP benefits originally was not contrary to law and hence, the action for recovery was not warranted; and secondly, on the principle that irrespective of the merits, it was not open to the State to effect recovery since there was no allegation or finding of fraud or misrepresentation against the employee. Since the State is in appeal against the judgment and order of the learned Single Judge, for convenience of reference, we will refer to the parties by their description in the writ petition.

(2.) The petitioner was initially appointed as a Seenchpal in the Irrigation Department on 28 August 1977 and was promoted as Seench Paryavekshak on 1 September 1985. On 2 September 1995, he was granted the first increment. After fourteen years of service, the petitioner was sanctioned the first promotional pay scale of Rs.430-700 on 2 September 1999. On 7 March 2003, he was promoted as Ziledar in the pay scale of Rs.430-700 (which admittedly was the same pay scale which was allowed to him following the grant of the first promotional pay scale on the completion of fourteen years of service). On 4 May 2010, a new Government Order was issued by the State Government which was effective from 1 December 2008 under which, the benefit of three financial progressions was permissible on the completion of ten, eighteen and twenty six years of service respectively (the eighteen years' requirement was subsequently reduced to sixteen years but that is not material for the purposes of the present controversy). The petitioner retired on 30 June 2012. During his tenure, he was granted the third promotional pay scale on 1 December 2008 in accordance with the ACP scheme. When the papers pertaining to the petitioner were forwarded to the Department for sanctioning his pension, the Additional Director (Treasuries & Pension), Vindhyachal Division, Mirzapur was of the view that since the promotion to the post of Ziledar had taken place on 7 March 2003, treating that post to be of direct recruitment, the first promotional pay scale could be granted to the petitioner on 7 March 2013 after he completed ten years of service. A direction was subsequently issued to re-determine the pay and if necessary, to effect recoveries. In pursuance of the said order, the Executive Engineer, re-determined the salary of the petitioner by omitting the benefit of the third promotional pay scale.

(3.) Eventually, on 11 December 2012, the Additional Director passed a consequential order for the recovery of Rs.3,59,974/- on the ground that the petitioner had been paid in excess. That led to the writ petition. The learned Single Judge held that under the ACP scheme, three financial progressions were available against a post of direct recruitment on the completion of ten, eighteen and twenty six years of satisfactory service. The learned Single Judge held that the first promotional pay scale was made available to the petitioner as a Seench Paryavekshak. The State, by treating his promotion to the post of Ziledar as the first substantive appointment, had ignored his services of merely twenty six years. In the view of the learned Single Judge, the appointment of the petitioner on 28 August 1977 would constitute the beginning of his service and he was granted two promotions. Hence, the petitioner was correctly granted the benefit of the ACP scheme with effect from 1 December 2008, when the scheme was introduced, by granting him the third financial progression. Since the petitioner had completed twenty six years of service at an earlier point of time, in terms of the ACP scheme, he was entitled to the third financial progression with effect from 1 December 2008. The learned Single Judge has held that in any event, no case was made out for effecting recoveries after the petitioner had superannuated from service particularly, when no allegation of fraud or misrepresentation was levelled against the petitioner.