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Gajendra Pal Singh v. D.I.O.S. & Others - WRIT - A No. 2017 of 1991 [2007] RD-AH 9011 (11 May 2007)


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                                                                                                           Court No. 39

Civil Misc. Writ Petition No.2017 of 1991

Gajendra Pal Singh


District Inspector of Schools and others.

Hon'ble V.K. Shukla,J.

    Petitioner had been performing and discharging his duty as Lecturer at Shri Tilak Vidyalaya Inter College, Firozabad. Petitioner has contended that at the point of time when he was offered appointment,  there was great dearth of Physics Teacher  in the district  and  in this background he was appointed as Lecturer by giving  four incentive of increments as starting  salary. Petitioner has contended that Lecturer grade at that point of time  was Rs. 175-350, but petitioner's salary was fixed Rs. 215/-. Petitioner has contended that from time to time his salary was revised and  necessary fixation was done by the Deputy Director of Education, Agra on 16.9.1974. Petitioner has contended that he was awarded selection grade also w.e.f. 1.7.1979 vide order dated 2.8.1983. However, subsequently,  said date was amended and petitioner was given selection grade  on 1.7.1980 vide order dated 16.8.1986. Petitioner has further contended that some audit has been conducted by the Director of Education, Agra and based on the said audit report, opinion has been formed that wrong fixation had been made on account of which excess payment has been made to petitioner and in this background directives have been issued for recovering  sum of Rs. 11,752.90 from the petitioner. At this juncture present writ petition has been filed.

Counter affidavit has been filed on behalf of the Managing Committee of the Institution and therein claim of petitioner has been supported by contending that rightful fixation has been made.

In-spite of the fact that more than 15 years period have elapsed , as State-Respondents has not filed counter affidavit.

       Ms. Rashmi Tripathi holding brief of Sri Anil Bhushan, learned counsel for the petitioner contended with vehemence that  in the present case rightful  fixation was made by the respondents  and there was no fraud or misrepresentation on the part of the petitioner, as such no recovery can be made from the petitioner.

Learned Standing Counsel on the other hand contended that once, it is found that incorrect fixation was made, then State Government  in all eventuality is liable to recover the amount, to make the losses good.

In order to appreciate the respective argument,judicial pronouncement on this aspect of the matter is being looked into Hon'ble Apex Court in the case of  Shyam Babu Sharma and others Vs. Union of India and others reported in (1994) 2 SCC 521 has taken the view that higher pay scale erroneously given to an incumbent and incumbent having received higher scale due to no fault of his, it   shall be  just and proper not to recover  any excess amount already paid to them. Division Bench of this court in the case of  Bindeshwari Sahai Srivastava Vs. Chief Engineer, Irrigation Department, Lucknow and others 1996 A.W.C.947 has taken similar view that it is well settled principle that wages paid to an employee by employer voluntarily in bonafide manner without there being any fraud or misrepresentation , cannot be recovered from the employee subsequently merely on the ground that some mistake committed by employer for which employee cannot be held responsible.

This court in identical matter decided on 23.11.2004  Awadh Nath Tripathi Vs. Chief Development Officer, Panchayat, Sant Kaqbir Nagar and others 2005(5) AWC 4055 has taken the same view and has concluded that  in view of aforesaid legal position, it is not open to the respondents to recover any amount from the petitioner on the fact mentioned in the impugned order that salary of petitioner was wrongly fixed in the selection grade.

Consequently, in the present case also as petitioner had no role in the fixation of amount, and there has been no fraud or misrepresentation on the part of  petitioner, as such directives dated 26.12.1990, which have been issued by the respondents to recover  the amount from petitioner is legally not sustainable  and it is hereby quashed and set aside . In case respondents have recovered the aforesaid amount , then in that event respondents are directed to return the aforementioned amount within period of three months from the date of production of certified copy of this order.

With these observations, writ petition is allowed .

Dt. 11.05.2007



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