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Allahabad High Court
Ram Suresh Pandey S/O Chandrika … vs State Of U.P.Through … on 29 January, 2010
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                                                     Court No. 24

               Writ Petition No. 1406 (SS) of 2009

Ram Suresh Pandey and others              ...     Petitioners

                              Versus

State of U.P. and others                  ...     Opposite parties

                            -----------

Hon'ble Rajiv Sharma, J.

Supplementary affidavit filed by the petitioners is admitted
to record.

Heard Counsel for the petitioners and the Standing Counsel.

Counsel for the petitioners submits that all the petitioners
are appointed and confirmed on the post of Lekhpals in
accordance with Lekhpal Service Rules, 1958. In the year 2006,
Lekhpals of Basti have preferred a Writ Petition bearing No. 4434
of 2001 Dheer Singh and others Versus State of U.P. and others.
In compliance of this Court’s Order, the petitioners were given all
benefits. By means of the order dated 10.4.2006, the opposite
party No.2 directed to provide the promotional scale in the pay
scale of Rs.1350-2200 (revised pay sale is Rs.4500-7000), which
has been implemented, but by the impugned order dated
19.9.2008, certain objections have been raised against the
promotional pay scale provided to the Lekhpals. Against the
impugned order, they preferred a representation, but no heed has
been paid.

In the supplementary affidavit, it has been stated that the
petitioners are deprived of their legitimate claim. Similarly
situated persons filed a writ petition at Allahabad bearing No.
34934 of 2009 and this Court stayed the operation and
implementation of the order dated 25.3.2009. Owing to wrong
fixation of salary, the department is going to recover the amount
from the petitioners which has already been paid to them. On
25.3.2009, the Tehsildar, Bhanpur, District Basti issued letters to
the Lekhpals wherein they have been directed to deposit
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Rs.1,14,485/- each which had been pin excess to them towards
salary due to wrong fixation of their salary before 1.3.2000 failing
which recovery will be made. Challenging the said recovery as
well as anomaly in the pay scale earlier, some other similarly
situated persons have filed writ petition No. 52395 of 2009
Budhiram Versus State of U.P. and others and in this case also,
the operation and implementation of the recovery order was
stayed.

Learned Counsel for the petitioners has drawn the attention
of this Court towards the averments made in the Counter-
affidavit. In this affidavit, it has been stated that no recovery is
being made from any of the petitioner and contrary to it, Tehsildar
Basti informed that the department is enquiring the matter and
necessary actions are being taken for recovery of salary/pension.

From the perusal of the record, it comes out that the
impugned order has been passed without application of mind on
unfounded ground. Moreover, it is also settled proposition of law
that in case the higher pay scale is paid to the government
employee on no fault on his party, the government shall not be
entitled to recover the amount paid to the employees.

In support of the petitioners’ submissions, he has relied
upon the cases of Bindeshwari Sahai Srivastava v. The Chief
Engineer, Irrigation Department, U.P. and others [(1996) 4
UPLBEC 2634]. In the said case, the Apex Court’s judgment
passed in Sahib Ram v. The State of Haryana and others [JT
1995 (1) SC24] has been followed, wherein it was laid down as
under:-

“Admittedly the appellant does not passes the
required educational. Under circumstances the
appellant would not be entitled to the relaxation. The
Principal erred in granting him the relaxation. Since
the date of relaxation, the appellant had been paid his
salary on revised scale. However, it is not on account
of any misrepresentation made by the appellant that
the benefit of higher payscale was given to him but by
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wrong construction made by the Principal for which
the appellant cannot be held to be at fault. Under the
circumstances the amount paid till date may not be
recovered from the appellant. The Principle of equal
pay for equal work would not apply to the scale
prescribed by the University Grants Commission. The
appeal is allowed partly without any order as to
costs.”

In the case of Purushottam Lal Das and others v. The
State of Bihar and others [2006 AIR 5325] the Hon’ble
Supreme Court has held that no recovery shall be made from the
amounts already paid in respect of the promotional posts.

The Apex Court in the case of Shyam Babu Verma and
others v. Union of India and others
[(1994) 2 Supreme
Court Cases 521], has held that it shall only be just and proper
not to recover any excess amount which has already been paid to
them.

A Division Bench of this Court in B. N. Singh v. State of
U.P. [1979 ALJ 1841] has also laid down that if an employee
has been paid excess wages voluntarily by the employer without
there being any fraud or misrepresentation committed by the
employee, the excess amount cannot be recovered from him.
Relevant extract of the judgment is reproduced below:-

“It is well settled principle that wages paid to
an employee by an employer voluntarily in bona fide
manner without there being any element of fraud or
misrepresentation cannot be recovered from the
employee subsequently merely on the ground that
some mistake of interpretation of rules might have
been committed by the employer for which the
employee could not he held responsible. This view
finds support from the decision of this Court in Gulab
Chand v. State of U.P. Civil Misc. Writ Petition No.
1479 of 1962, decided on 19th March, 1969.”

In view of the aforesaid legal proposition, the writ petition
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deserves to be allowed.

Accordingly, the writ petition is allowed. The impugned order
dated 19.9.2008 is hereby quashed. If any amount is recovered
from the petitioners, the same shall be refunded to the petitioners
within a period of two months, from the date of presentation of a
certified copy of this order.

Dt. 29.1.2010
Lakshman/


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