A single judge bench considered the infirmity of an order declining to refix the petitioner's salary. The court held that as a prior judgment settled the specific appeal without granting relief against salary fixation, the subsequent order was not infirm.
The writ petition is dismissed.
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Court No. - 83
Case :- WRIT - A No. - 5640 of 2020
Petitioner :- Parmeshwari Prasad Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar Srivastava Counsel for Respondent :- C.S.C.
Hon'ble Ajay Bhanot,J.
By order dated 06.04.1999, the salary of the petitioner was corrected on the footing that the earlier salary had been incorrectly fixed and excess salary paid was to be recovered. The petitioner had earlier assailed the order of incorrect fixation of salary as well as the recovery of excess amount before this Court. This Court decided the controversy in Special Appeal No. 178 of 2014, Parmeshwari Prasad Vs. State of U.P. and Others, rendered on 24.08.2016. The operative portion of the judgment is extracted hereinunder:
"We have occasion to peruse the record in question. The factual aspect of the matter is that the petitioner-appellant was not guilty of furnishing any incorrect information, which had led the concerned authority to commit the mistake of making higher payment to him and as such whatever the higher payment has been paid to the petitioner, the same was not accorded to him on account of any misrepresentation/fraud committed by him and as such we are of the considered opinion that the participation of the petitioner-appellant in the mistake committed by the respondents in extending the undeserved monetary benefits to the petitioner is totally ruled out.
Hon'ble the Apex Court in Rafiq Masih (Supra) has considered the entire law on this subject, which hold the filed and even considered the judgment passed by the Apex Court in Chandi Prasad Uniyal (Supra) and finally in para 11 has laid down conditions regarding recovery, which has been quoted above, and we find that the petitioner's case fall under the conditions laid down by Hon'ble Apex Court in Rafiq Masih (Supra) and as such we are of the considered opinion that the impugned recovery cannot be justified and the same is unsustainable under the present facts and circumstances.
In view of above, the order impugned passed by learned Single Judge dated 17.1.2014 and the impugned recovery cannot sustain and the same are set aside. The special appeal is allowed accordingly."
It is evident that the issue of incorrect fixation of salary was very much in issue before this Court in Special Appeal No. 178 of 2014, Parmeshwari Prasad Vs. State of U.P. and Others. No relief was granted to the petitioner against the fixation of his salary by order dated 06.04.1999 (which was incorrect in his understanding).
It is settled law that relief sought but not granted by court amounts to denial of relief.
On this footing it can be safely concluded that this Court in Special Appeal No. 178 of 2014, Parmeshwari Prasad Vs. State of U.P. and Others, declined to grant relief against the incorrect fixation of salary to the petitioner. The fixation of salary of the petitioner, attained finality with the order dated 24.08.2016 passed by this Court.
By the impugned order dated 30.06.2020, the respondent no. 4 has declined to refix the salary on the foot that this Court passed no order for refixation of the salary in the order dated 24.08.2016 Special Appeal No. 178 of 2014, Parmeshwari Prasad Vs. State of U.P. and Others.
In wake of the preceding discussion, there is no infirmity in the order impugned.
The writ petition is dismissed.
Order Date :- 21.10.2020 Dhananjai
2 issues framed by the court
Whether the impugned order declining to refix the salary is infirm in view of the earlier judgment in Special Appeal No. 178 of 2014.
Analysis of settlement of law regarding denial of relief sought but not granted by the court.
Colour shows how this judgement treated each authority
Parmeshwari Prasad Vs. State of U.P.Referred¶5
Special Appeal No. 178 of 2014, Parmeshwari Prasad Vs. State of U.P. and Others
Parmeshwari Prasad Vs. State of U.P.Distinguished¶8
Special Appeal No. 178 of 2014, Parmeshwari Prasad Vs. State of U.P. and Others
Parmeshwari Prasad Vs. State of U.P.Referred¶11
Special Appeal No. 178 of 2014, Parmeshwari Prasad Vs. State of U.P. and Others
Parmeshwari Prasad Vs. State of U.P.Referred¶12
Special Appeal No. 178 of 2014, Parmeshwari Prasad Vs. State of U.P. and Others
Parmeshwari Prasad
State of U.P.
4 Others
Ajay Bhanot
As recorded by the court registry
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