JAGAT NARAYAN GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the parties. Petitioner was appointed as Lekhpal on 29.11.1956. He was promoted to the post of Assistant Registrar Kanoongo (A.R.K.) on 17.03.1983 and retired from the post of Registrar Kanoongo (R.K.) on 31.07.1996. The claim of the petitioner through this writ petition is for grant of selection grade/super selection grade from the date prior to which it was actually granted. Order of recovery, which has been passed against the petitioner has also been challenged. Earlier also petitioner had filed W.P. No.19557 of 1997 for the same relief, which was disposed of with the direction to decide the representation. On 05.06.2004, Chief Revenue Officer, Allahabad sent a letter to the petitioner directing him to deposit Rs.6519/- as excess payment made to him when he was in service as salary. Petitioner filed objection against the said letter/recovery order. C.R.O. did not accept the objection of the petitioner and through order dated 12.07.2005 again directed to deposit the aforesaid amount. Recovery certificate was again sent on 09.08.2005 for recovery of the said amount. These three orders/recovery certificate have been challenged through this writ petition. Prayer for grant of selection grade/super selection grade from 17.03.1983 to 31.07.1996 in accordance with government orders dated 03.06.1989 and 08.03.1995 has also been made. In Para-3 of the counter affidavit, it has been stated that petitioner was promoted to the post of Registrar Kanoongo on 23.01.1992. Till then he had woR.K.ed as A.R.K. for slightly less than nine years. Petitioner woR.K.ed on the post of R.K. for about four and a half years. As Annexure-1 to the supplementary counter affidavit, copy of G.O. dated 16.01.2007 has been annexed. In the said G.O., it is mentioned that through earlier G.O. dated 03.06.1989, it was provided that those employees, who had completed ten years of service, were entitled to selection grade. It has further been stated that through subsequent G.O. dated 08.03.1995, the earlier G.O. was modified and the period of ten years' qualifying service for grant of selection grade was reduced to eight years. In the said G.O. dated 16.01.2007, it has further been mentioned that through G.O. dated 14.01.2002, it was provided that earlier the cadres of A.R.K. and R.K. had been merged and entitlement of an incumbent for grant of time pay scale would be counted from the date on which the incumbent was brought in the unified cadre. In Para-4 of the counter affidavit, it has been stated that through G.O. dated 22.05.1995, both the cadres of A.R.K. and R.K. had been amalgamated and for clarification matter had been referred to the Government. G.O. dated 16.01.2007 annexed along with supplementary counter affidavit is clarification of the Government. In view of the above, petitioner was not entitled to selection grade or time scale. Until 23.01.1992 when petitioner was A.R.K., he had not completed ten years and at that time selection grade was admissible on completion of ten years service. On the one hand after amalgamation of the cadres, an A.R.K., who becomes R.K. due to amalgamation, will be entitled to selection grade on the post of R.K. after completion of eight years from the date of amalgamation or the date on which incumbent is brought on the amalgamated cadre. On the other hand, the said position is not applicable to the petitioner as he had already been promoted as R.K. in 1992, i.e. three years before merger of the cadres of the A.R.K. and R.K.. As R.K., petitioner could not complete even five years before his retirement. The G.O. dated 08.03.1995 is not applicable to the petitioner as by virtue of the said G.O., those government employees, who had completed eight years of service on or after 08.03.1995, were entitled to selection grade on 08.03.1995 or the subsequent date on which they complete eight years of service. The petitioner had been promoted to the post of R.K. three years before issuance of the said G.O. Accordingly, there was absolutely no question of granting him selection grade in the pay scale of A.R.K. w.e.f. 01.03.1995. In case petitioner had continued to woR.K. as A.R.K. till 08.03.1995, still the said G.O. would not have been applicable upon him for the reason that in view of earlier G.O. dated 03.06.1989, he must have been granted selection grade in 1993 when he would have completed ten years as A.R.K.. In the G.O. dated 08.03.1995, it was specifically mentioned that the reduction of period of qualifying service for selection grade from ten years to eight years would be applicable prospectively, i.e. w.e.f. 01.03.1995 and in no case retrospectively, i.e. before 01.03.1995. However, as petitioner was not at all responsible for payment of excess salary due to wrong application of selection grade to him, hence in view of Supreme Court authority reported in Shyam Babu Verma Vs. Union of India and others, 1994 (2) SCC 521, recovery cannot be made. Accordingly, writ petition is allowed in part. Prayer No.1 for mandamus to direct the respondent to give selection grade/super selection grade since 17.03.1983 to 31.07.1996 is rejected. Prayer (b) is allowed and orders dated 05.06.2004, 12.07.2005 and 09.08.2005 directing the petitioner to return Rs.6519/- are quashed.