Shravan Kumar and Others vs State of U.P.

Devendra Kumar Arora, J.—By means of present writ petition, the petitioners are seeking a writ in the nature of certiorari for quashing of the impugned order dated 08.03.2010 passed by the opposite party No. 4 contained in annexure No. 1 to the writ petition, by which directions have been issued for recovery of excess amount paid to the petitioners as Protsahan Bhatta on the ground that it was not admissible to the petitioners.

Submission of learned Counsel for the petitioners is that petitioners are posted at Local Intelligence Unit in district Lucknow and they were granted promotional allowances on the basis of pay-scale in view of the Government Order dated 05.11.2009.

It is further submitted that the State Government however clarified vide order dated 28.11. 2007 with regard to the grant of promotional allowances paid to the employees of Local Intelligence Unit in district Pratapgarh.

Submission of learned Counsel for the petitioners is that by means of impugned order dated 08.03.2010, different amounts are directed to be recovered from the petitioners. The petitioners in support of the submission have relied upon the judgment of this Court in the case of Shiv Prakash Richariya v. State of U.P. and Ors. reported in 2008(5) ESC 3558, in which it has been held that if the salary of an employee has been fixed and paid by his employer voluntarily without there being any fraud or misrepresentation by the employee, it is not open to the employer to recover any amount of salary already paid, even if later on, it is found that the employee was not entitled to the salary at that rate/scale of pay unless the order fixing the salary/pay-scale is corrected by the employer shortly after it was passed.

Learned Counsel for the petitioners further relied upon the judgment of Hon''ble Supreme Court in the case of Syed Abdul Qadir and Others Vs. State of Bihar and Others,

This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.

The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess.

I have considered the arguments and gone through the record.

It is admitted position that the petitioners have been paid Protsahan Bhatta in pursuance to the Government Order dated 27.01.2004 read with 28.11.2007 voluntarily by the opposite parties. Since the impugned order shows that it has been paid by mistake, as an interim measure, it is directed that till the next date of listing the impugned order dated 08.03.2010 shall be kept in abeyance and in pursuance to the same no recovery shall be made from the petitioners.

Learned Standing Counsel prays for and is granted four weeks'' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within one week thereafter.

List immediately after expiry of the aforesaid period.