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Kamta Prasad Singh v. The Deputy Director Of Education Varanasi And Others - WRIT - A No. 10362 of 1987  RD-AH 15761 (11 September 2006)
Court No. 26
Civil Misc. Writ Petition No. 10362 of 1987
Kamta Prasad Singh
The Deputy Director of Education, Vth Region, Varanasi & Ors.,
Hon. Dilip Gupta, J.
The petitioner was initially appointed as a Lab-Assistant in the Post Graduate College, Ghazipur (hereinafter referred to as the 'College'). He was then promoted to the post of Stenographer on 24th August, 1972. The dispute raised in the present petition is about the promotion of the petitioner to the post of Office Superintendent. The said promotion is made under the provisions of Statute 25.03 of the First Statutes of the University which provides that the appointment to the post of Head Clerk-cum-Accountant, Head Clerk, Office Superintendent and Bursar shall be made by promotion according to seniority, subject to suitability and fitness from amongst the existing staff. Statute 28.01 deals with the qualification necessary to be possessed by the candidates for various posts and against the post of Office Superintendent, it has been stated that the person should posses a degree from a recognised University established by law together with at least ten year's working experience as Head Clerk or Accountant in a College affiliated to or associated with a University or in any other similar Institution.
The contention of the petitioner is that the Secretary/Manager of the College had issued an order on 3rd April, 1974 that the petitioner who had been appointed as a Stenographer by means of the order dated 24th August, 1972 and whose work was satisfactory shall from the date of the order, apart from discharging his duties on the substantive post of Stenographer shall also do the work of the Head Clerk and it is on the basis of the said order that he has 10 year's working experience as Head Clerk so as to make him eligible for promotion to the post of Office Superintendent. The Selection Committee constituted for the purposes of considering the case of the candidates suitable for promotion to the post of Office Superintendent recommended the case of the petitioner in the meeting held on 23rd June, 1985. Against Column No. 4, it was stated that the petitioner had 11 year's working experience as a Stenographer-cum-Head Clerk. The Deputy Director of Education, Varanasi by his order dated 26th December, 1985 granted approval to the aforesaid promotion of the petitioner to the post of Office Superintendent and, accordingly, an order dated 1st January, 1986 was issued by the Secretary/Manager of the College promoting the petitioner to the post of Office Superintendent. Soon thereafter a communication dated 15th May, 1987 was sent to the Deputy Director of Education, Varanasi to the Secretary/Manager of the College in connection with the aforesaid approval granted in favour of the petitioner. It was stated that the petitioner had been substantively appointed on the post of Stenographer and had never been appointed on the post of Head Clerk and nor did he have 10 year's working experience as a Head Clerk. He was also receiving salary of the Stenographer during all this period. His promotion to the post of of Office Superintendent was, therefore, illegal as he did not have 10 year's working experience on the post of Head Clerk and, therefore, in such circumstances, the approval which had been granted for payment of salary was cancelled. It is this order dated 15th May, 1987 which has been impugned by the petitioner in the present petition.
Sri Ajit Kumar Singh learned counsel appearing for the petitioner vehemently urged that in terms of the order dated 3rd April, 1974 passed by the Secretary/Manager of the College, the petitioner had also been discharging the duties of Head Clerk and, therefore, the petitioner possessed all the requisite qualification and the finding to the contrary recorded by the Deputy Director of Education in the impugned order is perverse and arbitrary as the requirement under Statute 28.01 is only of 10 year's working experience as a Head Clerk which the petitioner had. His contention is that it was not necessary for the petitioner to have been appointed as a Head Clerk in the College and all that was necessary for him was to have 10 year's working experience. He also submitted that once the Deputy Director of Education had granted approval to the payment of salary to the petitioner on the post of Office Superintendent, he could not have cancelled the earlier order without giving any opportunity to him and since in the instant case, the approval had been granted without any opportunity it was liable to be set aside as it had been passed in the breach of principles of natural justice.
Sri Piyush Shukla, learned Standing counsel, on the other hand, submitted that the working experience of 10 year's as contemplated under Statute 28.01 of the First Statutes of the University does not mean that it was not necessary that the person should have been appointed as Head Clerk whether it be on a substantive or officiating or ad hoc basis. His submission is that by merely passing an order on 3rd April, 1972 the Secretary/Manager of the College could not have permitted the petitioner to discharge the work of the Head Clerk also. The learned Standing Counsel further submitted that in such circumstances where the petitioner did not possess the requisite qualification it was not necessary for the Deputy Director of Education to grant any opportunity to the petitioner as it would be an empty formality since admittedly the petitioner had not been promoted to the post of Head Clerk.
I have carefully considered the submissions advanced by the learned counsel for the parties.
It is not disputed by the learned counsel for the petitioner that his substantive appointment was on the post of Stenographer in the College. It is not his case that thereafter he was ever promoted to the post of Head Clerk in the College. Statute 25.03 clearly provides that the appointment to the post of Head Clerk can be made either by promotion or by direct recruitment. If it has to be made by promotion then the criteria is seniority, subject to suitability and fitness from amongst the existing staff and if it is by direct recruitment then on the basis of selection after advertisement of the vacancy in Newspapers. This exercise was never undertaken by the College Authorities and all that has been stated is that an order dated 3rd April, 1974 was issued by the Secretary/Manager of the College asking the petitioner to do the additional work of Head Clerk in addition to his work of Stenographer. It is only on the basis of the said order that the petitioner contends that he had working experience of 10 years as he had discharged the duties of a Head Clerk also during this period though he had received salary for the post of Stenographer. Such an order, in my opinion, will not confer any right upon a Stenographer to contend that he has a working experience of more than 10 years as contemplated under Statute 28.01. The working experience of a Head Clerk would mean the working experience gathered by a Head Clerk who had been promoted as such either on a substantive post or on officiating or ad hoc basis in accordance with the procedure prescribed.
In the instant case, the Secretary/Manager of the College had issued the order asking the petitioner to perform the work of the Head Clerk also in addition to the work of the Stenographer on which post the petitioner had been substantively appointed. Learned counsel for the petitioner has not placed before the Court any provision in the First Statutes of the University which could have empowered the Secretary/Manager of the College to issue such an order. If what the petitioner contends is accepted then it would give blanket power on any Secretary/Manager to just issue an order, requiring any person to perform any work so as to make him eligible for a higher post. It is difficult to accept that a person can be promoted to a higher post even though he had never been appointed on the lower post.
Such being the position, there is no infirmity in the order passed by the Deputy Director of Education cancelling the approval granted in favour of the petitioner for payment of salary on the post of Office Superintendent.
The next contention of the learned counsel for the petitioner is that the impugned order is liable to be set aside since it had been passed in utter violation of the principles of natural justice.
It cannot be doubted that the principles of natural justice cannot be put into a strait-jacket formula and that its application will depend upon the fact situation obtaining therein. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. This is what has been held by the Supreme Court in K.L. Tripathi Vs. State Bank of India & Ors. AIR 1984 SC 273; N.K. Prasad Vs. Government of India & Ors. (2004) 6 SCC 299; State of Punjab Vs. Jagir Singh (2004) 8 SCC 129; Karnataka SRTC Vs. S.G. Kotturappa (2005) 3 SCC 409 and in Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd. (2005) 5 SCC 337.
In Union of India Vs. Tulsiram Patel AIR 1985 SC 1416 the Hon'ble Supreme Court held:-
"Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible."
It is equally well settled that the principles of natural justice must not be stretched too far and in this connection reference may be made to the decisions of the Supreme Court in Sohan Lal Gupta Vs. Asha Devi Gupta (2003) 7 SCC 492; Mardia Chemicals Ltd. Vs. Union of India AIR 2004 SC 2371 and Canara Bank Vs. Debasis Das AIR 2003 SC 2041.
Wade ''On Administrative Law' 5th Edition at pages 472-475 has observed that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply and nor as to their scope and extent. Everything depends on the subject-matter. The application of principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant; there is no such thing as a mere technical infringement of natural justice. The requirements of natural justice must depend on the facts and the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth.
The Constitution Bench of the Supreme Court in Managing Director ECIL, Hyderabad Vs. B. Karunakar AIR 1994 SC 1074 made reference to its earlier decisions and observed:-
"In A.K. Kraipak v. Union of India, AIR 1970 SC 150 it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why, they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasi-judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice.
In Chairman, Board of Mining Examination v. Ramjee AIR 1977 SC 965 the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference of the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as a mere artifact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures."
The Supreme Court in Mohd. Sartaj & Anr. Vs. State of U.P. & Ors., 2006 AIR SCW 399, after considering number of its earlier decisions made the following observations with regard to requirement of giving notice and the same are as follows :-
"In M.C. Mehta v. Union of India, 1999 (6) SCC 237, this Court has laid down that there can be certain situation in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example, where no prejudice is caused to the person concerned interference under Article 226 is not necessary.
In the case of Aligarh Muslim University v. Mansoor Ali Khan, AIR 2000 SC 2783, this Court considered the question whether on the facts of the case the employee can invoke the principle of natural justice and whether it is a case where, even if notice has been given, result would not have been different and whether it could be said that no prejudice was caused to him, if on the admitted or proved facts grant of an opportunity would not have made any difference. The Court referred to the decisions rendered in M.C. Mehta v. Union of India (supra), the exceptions laid down in S.L. Kapoor's case (supra) and K.L. Tripathi v. State Bank of India AIR 1984 SC 273, where it has been laid down that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) has to be proved. The Court has also placed reliance in the matter of S.K. Sharma v. State Bank of Patialy, 1996 (3) SCC 364, and Rajendra Singh v. State of M.P. 1996 (5) SCC 450, where the principle has been laid down that there must have been some real prejudice to the complainant. There is no such thing as merely technical infringement of natural justice. The Court has approved this principle and examined the case of the employee in that light. In Viveka Nand Sethi v. Chairman, J.&K. Bank Ltd. and others (2005) 5 SCC 337, this Court has held that the principles of natural justice are required to be complied with having regard to the fact-situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. In another recent judgment in the case of State of U.P. v. Neeraj Awasthi & others, JT 2006 (1) SC 19, while considering the argument that the principle of natural justice had been ignored before terminating the service of the employees and, therefore, the order terminating the service of the employees was bad in law, this Court has considered the principles of natural justice and the extent and the circumstances in which they are attracted. This Court has found in Neeraj Awasthi's case (supra) that if the services of the workmen are governed by the U.P. Industrial Disputes Act, they are protected under that law. Rules 42 and 43 of the U.P. Industrial Disputes Rules lay down that before effecting any retrenchment the employees concerned would be entitled to notice of one month or in lieu thereof pay for one month and 15 days' wages for each completed year of service by way of compensation. If retrenchment is to be effected under the Industrial Disputes Act, the question of complying with the principles of natural justice would be attracted only when the services of some persons are terminated by way of a punitive measure or thereby a stigma is attached. Applying this principle, it could very well be seen that discontinuation of the service of the appellants in the present case was not not a punitive measure but they were discontinued for the reason that they were not qualified and did not possess the requisite qualifications for appointment.
In the present case, the appellants' case fall within the exception laid down in S.L. Kapoor's case (supra) and other supporting cases, as admittedly, the appellants were not qualified and they did not possess the B.T.C. or Hindustani Teacher's Certificate or Junior Teacher's Certificate or Certificate of Teaching or certificate of any other training course recognized by the State Government as equivalent thereto at the time of their initial appointment. In view of the basic lack of qualifications, they could not have been appointed nor their appointment could have been continued. Hence the appellants did not hold any right over the post and, therefore, no hearing was required before the cancellation of their services. In the present case, the cancellation order has been issued within a very short span of time giving no probability for any legitimate expectation to the appellants regarding continuation of their service."
In the instant case, there is no dispute that the petitioner was never promoted to the post of Head Clerk under Statute 25.03 of the First Statutes of the University. The approval granted earlier by the Deputy Director of Education by his order dated 26th December, 1985 was patently illegal and has, therefore, been set aside by him by the order dated 15th May, 1997. Therefore, even if any notice has been given to the petitioner, the result would not have been different as admittedly he had not been promoted to the post of Head Clerk. Thus, in view of the aforesaid decisions of the Supreme Court, it cannot be said that principles of natural justice had been violated. This apart, the petitioner has not pleaded and established what prejudice has been caused to him on account of absence of any notice and, therefore, also the contention of the learned counsel for the petitioner cannot be accepted.
The matter can be examined from another angle and that is whether this Court under Article 226 of the Constitution of India should quash an order on the ground of breach of natural justice if it would result in the restoration of an order passed earlier in favour of the petitioner which is otherwise not in accordance with law.
The Supreme Court in the case of Gadde Venkateswara Rao v. Government of Andhra Pradesh & Ors. AIR 1966 SC 828 refused relief and agreed that the High Court was right in not interfering under Article 226 even if there was violation of natural justice and observed as follows:-
"In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order- it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise as extraordinary discretionary power in the circumstances of the case."
Similar view was taken by the Supreme Court in Mohammad Swalleh & Ors. Vs. Third Addl. District Judge, Meerut & Anr. AIR 1988 SC 94; Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar & Ors. (1999) 8 SCC 16 and Mallikarjuna Mudhagal Nagappa & Ors., Vs. State of Karnataka & Ors., (2000) 7 SCC 238 wherein it was held that interference was not necessary if it resulted in restoration of an order which was not legal.
In the present case, if the order dated 15th May, 1997 is quashed, it would result in reviving the illegal approval order and, therefore, also in view of the aforesaid decisions, I do not consider it appropriate to quash the order on the ground that principles of natural justice have been violated.
It must also not be forgotten that the High Court under Article 226 of the Constitution can refuse to exercise its discretionary jurisdiction where the petitioner claims a relief to secure a dishonest advantage or perpetuate an unjust gain.
In Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills & Anr., AIR 1994 SC 2151 the Supreme Court observed:-
"A court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from clefty evasions and new subtelities invented to evade law."
In the case of M.P. Mittal Vs. State of Haryana & Ors. AIR 1984 SC, 1888, the Supreme Court held as follows:-
"The appeal arises out of a writ petition, and it is well settled that when a petitioner invokes the jurisdiction of the High Court under Article 226 of the Constitution, it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetuate an unjust gain. This is a case where the High Court was fully justified in refusing relief."
The Supreme Court in State of Maharastra Vs. Prabhu (1994) 2 SCC 481 considered the equity jurisdiction of the High Court under Article 226 of the Constitution and pointed out as follows:-
"Even assuming that the construction placed by the High Court and vehemently defended by the learned counsel for respondent is correct should the High Court have interfered with the order of Government in exercise of its equity jurisdiction................. Where the Government or any authority passes an order which is contrary to rules or law it becomes amenable to correction by the courts in exercise of writ jurisdiction. But one of the principles inherent in it is that the exercise of power should be for the sake of justice. One of the yardstick for it is if the quashing of the order results in greater harm to the society then the court may restrain from exercising the power...........Therefore, even if the order of the Government was vitiated either because it omitted to issue a proper show-cause notice or it could not have proceeded against the respondent for his past activities the High Court should have refused to interfere in exercise of its equity jurisdiction as the facts of the case did not warrant interference.......... It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good."
The same position was reiterated by the Supreme Court in the case of Chandra Singh Vs. State of Rajasthan & Anr. AIR 2003 SC 2889 in which it was observed as follows:-
"Issuance of a writ of Certiorari is a discretionary remedy (Champalal Binani v. CIT, West Bengal, AIR 1970 SC 645). The High Court and consequently this Court while exercising its extra ordinary jurisdiction under Articles 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant."
In ONGC Ltd. Vs. Sendhabhai Vastram Patel & Ors,. reported in (2005) 6 SCC 454, the Supreme Court held as follows:-
"It is now well settled that the High Court and the Supreme Court while exercising their equity jurisdiction under Articles 226 and 32 of the Constitution as also Article 136 thereof may not exercise the same in appropriate cases. While exercising such jurisdiction, the superior courts in India may not strike down even a wrong order only because it would be lawful to do so. A discretionary relief may be refused to be extended to the appellant in a given case although the Court may find the same to be justified in law. [See S.D.S. Shipping (P) Ltd. V. Jay Container Services Co. (P) Ltd. (2003) 9 SCC 439]."
The observations made in the aforesaid decisions compel me not to grant relief to the petitioner as granting any relief would facilitate the petitioner in securing a dishonest advantage and perpetuate an unjust gain.
In the end Sri Ajit Kumar Singh, learned counsel for the petitioner submitted that this Court on 22nd May, 1987 had passed an interim order staying the effect and operation of the order dated 15th May, 1997 and on the basis of the said interim order, the petitioner has not only worked as the Office Superintendent but has also received salary for the said post. He, therefore, contended that a sympathetic approach should be adopted by this Court.
In my opinion, the petitioner is not entitled to a relief from this Court merely on the ground that an interim order had been passed in his favour under which he continued to receive salary. The petitioner has to give way to a candidate who would appointed in accordance with the procedure prescribed for making the promotion to the post of Office Superintendent. In this context it may be useful to reproduce a passage from the judgment of the Supreme Court in the case of State of Madhya Pradesh and another Vs. Dharam Bir reported in JT 1998 (4) SC 363 wherein it has been observed as follows:-
"The plea that the Court should have a "human approach" and should not disturb a person who has already been working on this post for more than a decade also cannot be accepted as the Courts are hardly swayed by emotional appeals. In dispensing justice to the litigating parties, the Courts not only go into the merits of the respective cases, they also try to balance the equities so as to do complete justice between them. Thus the Courts always maintain a human approach. In the instant case also, this approach has not been departed from. We are fully conscious that the respondent had worked on the post in question for quite a long time but it was only in ad hoc capacity. We are equally conscious that a selected candidate who also possesses necessary educational qualification is available. In this situation, if the respondent is allowed to continue on this post merely on the basis of his concept of "human approach", it would be at the cost of a duly selected candidate who would be deprived of employment for which he has striven and had ultimately cleared the selection. In fact, it is the "human approach" which requires us to prefer the selected candidate over a person who does not possess even the requisite qualification."
The Supreme Court in the case of Kishorilal Charmakar and another Vs. District Education Officer & Anr. reported in (1998) 9, SCC 395 examined the termination of persons who had been appointed under a bona fide mistake by considering them as Scheduled Tribes candidates and the mistake had not occurred on their account. It was submitted on their behalf that they had worked for 10 years as teachers under the interim orders granted by the Court in their favour and since they were not responsible for the mistake they should be allowed to continue. The Court rejected this contention holding that this alone could not entitle them to retain the undeserved benefit which had accrued to them.
In yet another case the Supreme Court in the matter of State of Rajasthan Vs. Hitendra Kumar Bhatt (1997) 6 SCC 574 examined the effect of an interim order on the dismissal of the petition. In the said case the respondent was not called for an interview since he did not possess the technical qualification. However, pursuant to the interim order passed by the High Court requiring the appellant to call him for interview he was interviewed and his name was included in the list of selected candidates. He was also appointed on a provisional basis and was also subsequently confirmed. The writ petition was ultimately dismissed by the High Court holding that on the cut of date, he did not possess the requisite qualification. It was submitted by the respondent before the Supreme Court that since he had been continued in service and had also been confirmed, the Court should not disturb his appointment and his case should be considered sympathetically. The Supreme Court observed that the appellants had taken the correct stand right from the beginning and the respondent's application was not considered and he was not called for interview. It was only on account of the interim orders, which were obtained by the respondent that he was given an appointment and continued. He was aware that his appointment was subject to the out come of the petition. As such a sympathetic view could not be taken.
In Mohd. Sartaj & Anr. Vs. State of U.P. & Ors., reported in 2006 AIR SCW 399 the Supreme Court clearly held that possession of an essential educational qualification was mandatory for obtaining the right to continue in the post. A legal right in this behalf cannot be said to be derived by an employee only because an interim order was passed by the High Court.
In State of Rajasthan & Anr. Vs. Kulwant Kaur reported in 2006 AIR SCW 2622 the Supreme Court observed as follows:-
" The Respondent herein did not possess the requisite qualification. Only because the order of termination of service of Respondent was directed to be stayed and in obedience of the interim orders passed by the High Court, she was allowed to continue in services, the same, in our opinion, cannot lead to the conclusion that she had been validly holding the post or the order of termination was bad in law.......................It is also not a case where equity is in favour of the Respondent. Only because an interim order was passed in favour of the Respondent, the same would not mean that despite the fact that she did not possess requisite qualifications, her services would be allowed to continue."
In view of what has been observed in the aforesaid decisions of the Supreme Court, the petitioner is not entitled to any relief on sympathetic grounds.
There is, therefore, no merit in any of the contention advanced by the learned counsel for the petitioner. The writ petition is, therefore, liable to be dismissed and is, accordingly, dismissed. However, the salary paid to the petitioner while working on the post of Office Superintendent under the interim order passed by this Court shall not be recovered from him in view of the Full Bench decision of this Court in Surya Deo Mishra Vs. State of U.P. & Ors., reported in 2006 All.C.J. 117.
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