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Vasistha Muni Mishra v. State Of U.P. And Others - WRIT - A No. 48073 of 2004  RD-AH 7971 (21 December 2005)
Court No. 53
Civil Misc. Writ Petition No. 48073 of 2004.
Vasistha Muni Misra ..............Petitioners.
State of U.P. and others ..............Respondents.
Hon'ble Arun Tandon, J.
Heard Shri Rajeshwar Tewari on behalf of petitioner, and Additional Standing Counsel on behalf of respondents.
This is the third writ petition filed by the petitioner basically claiming the relief of payment of salary in pay scale of Rs.1200-2040 as well as for quashing the orders passed refusing the same to the petitioner. As also for a writ of mandamus restraining the respondents to not to recover the alleged excess amount paid to the petitioner with reference to the said pay scale.
The first writ petition filed by the petitioner being writ petition no. 31173 of 1995 was disposed of vide judgment and order dated 30.5.1997 with the observation that the claim of the petitioner for grant of pay scale of Rs.1200-2040 be considered in light of the recommendations of the Engineer-in-Chief.
In pursuance of the aforesaid judgment and order, it is alleged that the superintending Engineer called for an opinion from the office of the Chief Standing Counsel, High Court, Allahabad and thereafter proceeded to fix the salary of the petitioner in the pay-scale of Rs.1200-2040 w.e.f. 1.1.1986 under an order dated 25.9.1997. Subsequently on complaint being received with regards to the illegal fixation of the salary of the petitioner, the Superintending Engineer vide order dated 9.12.1998 recommended for cancellation of the order of fixation of salary of the petitioner in the pay-scale of Rs.1200-2040, accordingly consequential order dated 18.12.1998 was issued by the Executive Engineer.
Feeling aggrieved by the aforesaid action of the authorities, petitioner filed Writ Petition No. 1400 of 1999 (Second Writ Petition). This writ petition was opposed by the State Government amongst other on the ground that the competent authority to grant pay-scale of Rs.1200-2040 as claimed by the petitioner, was the State Government. The State Government on 17.12.1993 had rejected the recommendation of the Chief Engineer, Irrigation Department for grant of pay-scale of Rs.1200-2040 to persons similarly situate like the petitioner. The said decision of the State Government was communicated to all concerned. Ignoring the aforesaid decision of the State Government, the petitioner obtained an order from this Court for refixation of his salary on the recommendation of the Chief Engineer in his first writ petition, the Superintending Engineer obtained an opinion from the office of the Standing Counsel only as a camouflage to confer illegal benefits upon the petitioner. At no point of time the decision of the government dated 17.12.1993 was questioned in any court of law and the same continues to be binding even today. In such circumstances it was recorded that the grant of salary to the petitioner in the pay scale of Rs.1200-2040 was contrary to the decision of the State Government and, even otherwise, without jurisdiction, as the Superintending Engineer has no competence to grant the said pay-scale.
The second writ petition filed by the petitioner after exchange of counter affidavit and rejoinder affidavit was decided vide judgment and order dated 19.12.2004. It would be relevant to reproduce the findings recorded in the said judgment of the Hon'ble High Court in paragraph 17 which reads as follows :
"I have heard learned Counsels for the parties. I find that on the representation of the petitioner for granting pay scale of Rs.1200-2040 of Seench Paryavekshak the same was granted by the Superintending Engineer as well as Executive Engineer, who were not authorized to pass such order as granting of certain pay scale or allocation of pay scale to certain category of persons is to be passed by the State Government. More so, when the State Government had already taken a decision on 17.12.1993 rejecting the claim of petitioner then opinion of Standing Counsel could not be trated to be a decision of the State Government and in reference to opinion of the Standing Counsel granting of a particular scale by the Superintending Engineer/Executive Engineer shall have no validity. Alocation of a particular pay scale to an employee or official of State Government could be granted by a competent authority only. In the facts and circumstances, though it is very clear that such decision of granting a particular scale was already refused by the State Government on 17.12.1993 even then the petitioner was to be given notice and he was to be given opportunity of hearing before withdrawing the benefit already accrued to him. Since the petitioner could not demonstrate and prove before this Court that he is entitled for the scale of Seench Paryavekshak or scale of Rs.1200-2040 only on the strength of allocation of pay scale in the garb of the order dated 30.5.1997 passed in writ petition no. 31173 of 1995 the Superintending Engineer and Executive Engineer have unauthorizedly allocated the pay scale, who were not competent to allocate the same. If the petitioner is legally entitled to a particular scale only then he could be allocated the same by a competent authority. On the analysis of the facts and circumstances it appears that a particular scale has been granted to the petitioner though by an incompetent authority, but a right has accrued to the petitioner and before taking that right or annulling the same the petitioner was to be given a notice and he was to be afforded opportunity of hearing before taking any decision. In the peculiar facts and circumstances, the petitioner was entitled for opportunity of hearing before taking a decision by the Superintending Engineer on 9.12.1998 and also before passing a consequential order dated 18.12.1998 by the Executive Engineer. In the present fact and circumstances, these impugned orders are not legally sustainable, therefore, these are set aside. However, keepingin view the gravity of the matter a vide ramification would be created and in view of the allocation of pay scale and principle elaborated for allocation of equal pay for equal work in the decision taken by this Court (Hon'ble R.B.Mishra, J.) dated 23.7.2003 passed in Civil Misc. Writ Petition No. 1269 of 1990 (Ramayan Ram and another Vs. State of U.P. and others) and also keeping in view that equality of post and determination of pay scale to a particular post in the work of executive. More so, of the State Government, a fresh decision has to be taken by cancellation of such orders, impugned in the present writ petition on the ground of principle of natural justice the petitioner shall not be automatically entitled for the rectification of unauthorized illegal order made in favour of the petitioner. However, a fresh order has to be passed by the competent authority i.e. Principal Secretary/Secretary of Irrigation Department giving notice and opportunity of hearing to the petitioner and after taking his reply, if necessary oral hearing and if required taking into consideration his evidence and supporting documents, if the petitioner only chooses to give written submission that would be treated to be sufficient requirement for affording opportunity of hearing. The Principal Secretary shall specify particular date, time and place, where the petitioner shall be under obligation to represent his case personally or through his legal representative and the petitioner shall not take unnecessary adjournments and the appropriate decision shall be taken within two months from the date of production of certified copy of this order and allocation/fixation of pay scale to the petitioner shall depend upon the subsequent decision to be taken by the State Government. If the decision of the State Government is taken in view of the above observations after affording opportunity of hearing and the State Government decides that the petitioner is not entitled to the allocation of the pay scale claimed by him then excess payment made to him shall be recoverable or adjustable reasonably in the installments in future from the salary to be paid to the petitioner. State Government, if necessary, shall also hear the Engineer-in-Chief, Superintending Engineer and Executive Engineer of the Irrigation Department. In view of the above observations, the writ petition is disposed of.
In compliance to the orders of this Court referred to above, petitioner submitted a written representation along with certified copy of this order before the State Government and did not avail the opportunity of personal hearing afforded.
The Chief Secretary, Irrigation Department, by means of the order dated 15.10.2004 has held that grant of pay-scale of Rs.1200-2040 to the petitioner was patently illegal and without jurisdiction. The salary so paid to the petitioner because of the order obtained by him from the Hon'ble High Court, which made the basis for the Superintending Engineer to pass an order, which was wholly without jurisdiction, has necessarily to be recovered. This order of the Principal Secretary is under challenge in the present writ petition.
On behalf of the petitioner it is contended that the pay fixation of the petitioner under order dated 15.1.1997 was inconformity with law and was provided after obtaining legal opinion in the matter. It is further stated that recovery cannot be affected as the petitioner had not played any fraud nor had misrepresented. In that regard reliance has been placed up on the judgment of the Hon'ble Supreme Court in the case of Sahib Ram Vs. State of Haryana and others 1995 (I) Suppl. I SCC page 18 and Shyam Babu Verma Vs. Union of India 1994 Vol. II SCC page 521.
From the records of the present writ petition it is apparently clear that decision of the State Government dated 17.12.1993, refusing to grant pay-scale of Rs.1200-2040 to the petitioner, was never challenged before Court of law nor it has been questioned in the present writ petition. It is worthwhile to mention that in the judgment dated 19.5.2004, this Hon'ble Court specifically recorded that in view of the order dated 17.12.1993, petitioner could not have been granted the pay-scale of Rs.1200-2040. It was further held that the Superintending Engineer has no competence to pass such an order. Even after such a finding having been recorded in the earlier writ petition filed by the petitioner he has not chosen to challenge the decision of the State Government dated 17.12.1993 even in the present writ petition.
Accordingly so long as the order dated 17.12.1993 stands (having not been challenged by the petitioner) no other conclusion can be arrived at except the finding that the petitioner was not entitled for fixation of salary in the pay-scale of Rs.1200-2040 and further the Superintending Engineer had no competence/jurisdiction to grant such pay-scale to the petitioner. Accordingly the order passed by the Secretary dated 15.12.2004 does not call for any interference.
So far as the refund of money illegally paid to the petitioner with reference to the judgments of the Hon'ble Supreme Court referred to by the learned counsel for the petitioner is concerned, suffice is to point out that fixation of salary in the pay-scale of Rs.1200-2040 and consequent payment thereof by the Superintending Engineer/Executive Engineer to the petitioner was wholly unauthorized and without jurisdiction. Subordinate authorities cannot be permitted to cause loss to the public exchequer by acting in defiance of the decisions of the State Government. Such unauthorized and unwarranted payment of monetary benefits to the government employees must be returned. Moreover in the facts and circumstances of the case the Court is satisfied that fixation of salary as has been done in the favour of the petitioner in the pay-scale of Rs.1200-2040, was engineered by the petitioner himself by filing writ petition being writ petition no. 31173 of 1995 which created a situation for the Superintending Engineer to pass unauthorized orders with the help of totally incorrect legal opinion. Therefore, the petitioner is equally responsible for such unauthorized fixation of salary and payment thereto. Accordingly the judgments relied upon by the petitioner, cannot come to his rescue.
Writ petition is accordingly dismissed.
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