- (1.) AGGRIEVED by orders dated 7.9.1996 and 25th August, 1999 passed by the Director, Sainik Kalyan Evam Punarwas, Lucknow (respondent No. 3) the petitioner has invoked extraordinary jurisdiction of this Court under Article 226 of the Constitution of India seeking writ of certiorari for quashing the said orders. He has further sought a writ of mandamus commanding the respondents to pay full arrears and salary for the period 1.1.1996 to 31.8.1999 in the revised scale as per Finance Department's letter dated 5.6.1999, 18.7.1998 and 16.3.1998 and the Government of India letter dated 14.10.1997. A writ of mandamus has also been sought directing respondent No. 1 to re-fix pay of the petitioner correctly with effect from 1.1.1986 and 1.1.1996.
(2.) THE facts in brief as stated in the writ petition are that the petitioner was in Indian Army and retired as Major on 28th October, 1981. He was selected and re-employed on 7th August, 1983 as Zila Sainik Kalyan Evam Punarwas Adhikari which is a Class-I Gazetted Post in the pay scale of Rs. 1000-1900 as per Para 525 of Civil Service Regulations (hereinafter referred to as CSR). The appointment letter was issued to the petitioner and thereafter an agreement was executed on 18th August, 1984 between the petitioner and respondents providing terms and conditions of re-employment on the aforesaid post. The petitioner was paid salary as fixed pay instead of regular pay scale. With effect from 1.1.1986 the pay scale of Class I Gazetted Officers was notified as Rs. 2350-4300 which was further revised to Rs. 8550-14600 with etfect from 1.1.1996. The petitioner was serving against a permanent post inasmuch as there were 20 permanent and three temporary posts and the petitioner was at Serial No. 1 in the seniority list. The scale was fixed under Para 526 of CSR on the basis of last pay drawn in Army and pension was also fixed. Vide Government Order dated 10th July, 1984 the petitioner and other similarly re-employed officers were sanctioned D.A. at old rates payable in the pay scale sanctioned prior to 1.7.1979. In accordance with agreement and provisions of CSR, as and when the pay was to be revised, the petitioner was entitled for revision of his emoluments along with increments etc. The petitioner made a representation for correct fixation of pay and in reply whereof the State Government vide order dated 13th December, 1989 informed that the amount which is being paid to the petitioner is correct and needs no re-fixation. A copy of the order is on page 65 of the writ petition. Further the State Government issued a Government Order dated 22nd March, 1991 (Annexure-6 to the writ petition) laying down certain additional guidelines for fixation of pay and allowance for re-employed persons. Since in many cases, Government Order dated 22nd March, 1991 was misinterpreted, therefore, a clarification was issued vide G. O. dated 10th July, 1991 (Annexure-7 to the writ petition) and it further directed the authorities to review all such matters, and where wrong payment has been received or given, to stop the same and recover unauthorised payment. It appears that some of the officers challenged the Government Orders dated 22nd March, 1991 and 10th July, 1991 in Writ Petition No. 27431 of 1991, It. Col. R. K. Sharma and others v. State of U.P. and others, wherein an interim order was passed on 24th September, 1991 restraining recovery from those petitioners. Thereafter the petitioner also claimed' pay fixation under G. O. dated 22nd March, 1991 which was recommended by the District Magistrate. No step was taken by the higher authorities. The said recommendation was founded on revised pay scale and revised emoluments fixed as on 1.1.1986. However, pending decision of the competent authority, the petitioner himself drew his pay as per revised proposed pay and received payment accordingly. Respondent No. 3, however, issued a letter dated 23rd April, 1992 (Annexure-8 to the writ petition) declaring the aforesaid pay of the petitioner illegal and reducing it to the extent of 50% in accordance with Government Order dated 22nd March, 1991 and 10th July, 1991. The petitioner filed writ petition before this Court in the year 1992 which was disposed of vide Judgment dated 6th January, 1993 directing the authorities to decide his representation within three months. Thereafter respondent No. 3 passed order dated 7.9.1996 (Annexure-11 to the writ petition) observing that the appoint­ment of the petitioner was on fixed pay basis, therefore, benefit of interim relief is not applicable to him as per Government Orders dated 14th September, 1997 and 19th November, 1997. The petitioner having withdrawn the amount of interim relief himself in violation of said order, the said amount has to be recovered from him. Similarly as per Government Order dated 19.11.1997 ad hoc D.A. was not payable to the petitioner and the amount which has been withdrawn by him was to be deposited in the Government treasury. The petitioner, according to G.O. dated 22nd March, 1991, had received Rs. 1,720/- per month from 1.1.1986 to 1.5.1988 and with effect from 1.6.1988 at the rate of Rs. 1,834/-per month. Vide order dated 10th August, 1999 he was informed that he shall attain the age of superanuation on 31st August, 1999. Thereafter the petitioner made representation for correct fixation of pension and approached this Court in Writ Petition No. 397 of 1995 which was disposed of with the direction to the respondents to decide his representation. Pursuant thereto, respondent No. 2 has passed order dated 25th August, 1999 repeating his earlier decision of fixation of pay of the petitioner. Respondents have filed a counter-affidavit stating mat the petitioner was not appointed in the manner he has stated. His appoint­ment was strictly on contract basis with the condition of payment of salary on fixed pay. It was clearly specified in the agreement dated 18.1.1984. Since the petitioner was appointed on fixed pay, he had no right to claim regular pay scale as admissible to the employees appointed in regular pay scale. However, the petitioner withdrew various amounts pursuant to the revision of pay on 1.1.1986 on his own which he was not entitled and therefore, orders were issued for recover of the said amount and direction was issued to the petitioner not to withdraw any amount other than what he was entitled to draw under the agreement. Since the petitioner himself was Drawing and Disbursing Authority he received payment by drawing higher salary, therefore, he has to refund the excess amount which he has illegally withdrawn.
(3.) LEARNED Counsel for the petitioner vehemently contended that in para 5 of the agreement the word 'monthly rate of pay' was mentioned and it was also stated that the pay from time to time payable shall be in accordance with the provisions of the Rules enforced and applicable from time to time, meaning thereby when pay scale is revised and other benefits are extended, the petitioner shall also be entitled for the same. Any contrary view will be in violation to the principle of equal pay for equal work. He placed reliance on Deb Narayan Shyam and others v. State of West Bengal and others, (2005) 2 SCC 286. He further contended that in any case the amount once received by the petitioner cannot be recovered after a long time and placed reliance on Apex Court Judgment Mobarak Hussain v. State of Bihar and others, (2005) 10 SCC 429.;