Hon'ble Rajes Kumar, J. - (1.) BY means of the present writ petition, petitioner is challenging the order dated 31.12.2002 passed by Administrative Officer, Tehsil Saidpur, district Ghazipur, respondent no. 2, by which a sum of Rs.18,485/- is sought to be recovered.
(2.) THE brief facts giving rise to the present writ petition are that that the father of the petitioner, Mohd. Islam was Lekhpal, who died in harness on 22.12.1978. THEreafter, petitioner applied for appointment on compassionate ground. Petitioner was given appointment on the post of Lekhpal on 22.01.1979 as per the letter issued by Parganadhikari, Saidpur, district Ghazipur, annexure-1 to the writ petition. Petitioner has been given charge of Lekhpal on 27.01.1979. THEreafter, on 20.08.1979 the petitioner was sent to Lekhpal Training Centre, Varanasi. After completing the training of Lekhpal when the petitioner returned back to Tehsil Saidpur, he moved an application to the respondent no. 1 on 01.07.1980 for providing him the charge. When charge was not given, he moved an application the District Magistrate, on which District Magistrate on 22.08.1980 district to provide a berth as per the Government Order and as such Bhulekh Adhikari sent a letter to the respondent no. 1, Sub Divisional Magistrate, Saidpur, district Ghazipur stating therein that the petitioner is appointed under dying in harness in place of his father and since then the petitioner is continuously working. After completing the service for ten years petitioner was given selection grade in the year 1989 alongwith other Lekhpals and thereafter, completing six years after getting the selection grade, petitioner was given promotional scale. Since then the petitioner is continuously working. By the impugned order a sum of Rs.18,486/- has been demanded on the ground that in the service book the petitioner was regularized as Lekhpal on 26.10.1981 and as such after completing ten years satisfactory service, he is entitled for selection grads on 06.10.1991 and thereafter, completing further six years satisfactory service for promotion scale. Since the petitioner was given selection grade on 27.01.1985 and promotion scale on 27.01.1995 as such excess amount paid is sought to be recovered. Heard Sri Brij Raj Singh, learned counsel for the petitioner and learned Standing Counsel, appears on behalf of the respondent nos. 1 to 3. Learned counsel for the petitioner submitted that the appointment of the petitioner was under dying in harness on compassionate ground and though in the letter the appointment is shown as temporary but the appointment under the compassionate ground is to be treated as permanent and regular appointment. He submitted that the training is consequence of his appointment and, therefore, his permanent appointment should be considered w.e.f. 22.09.1979. His subsequent joining in view of the order of the District Magistrate after the training could not be considered as fresh permanent appointment and, therefore, the recovery is wholly unjustified. In support of his contention he relied upon the Division Bench decision of this Court in the case of Ravi Kiran Singh Vs. State of U.P. and others, reported in 1999 (2) ESC, 972 (Alld.) and the decision of learned Single Judge in the case of Kamlesh Kumar Pandey Vs. State of U.P. and another, reported in (2001) 2 UPLBEC, 2188.
(3.) LEARNED Standing Counsel submitted that the appointment letter dated 22.09.1979 shows that his appointment was temporary and his service is liable to be terminated without any notice. He submitted that after completing the training when he came back, District Magistrate has ordered for his permanent appointment, which was made on 06.10.1981. In the service book also, he is shown as permanent regular employee w.e.f. 06.10.1981 and, therefore, the consequential benefit is to be reckoned from 06.10.1981 and not from 22.09.1979. Having heard learned counsel for the parties, I have given anxious considerations to the rival submissions of the parties and have also gone through the various documents annexed alongwith the writ petition and counter affidavit.;