Dr. Shiv Poojan Awasthi and 2 Others Vs State of U.P. Thru. Addl. Chief Secy. Medical and Health Deptt. and 4 Others — Allahabad HC (2022) — LawSathi Research

Dr. Shiv Poojan Awasthi and 2 Others Vs State of U.P. Thru. Addl. Chief Secy. Medical and Health Deptt. and 4 Others — Allahabad HC (2022) — LawSathi Research

What the court decided

AI extract

Outcome

Petitioners at liberty to submit a representation before respondent No. 2 (Director General, Medical & Health Department, U.P.) taking all pleas available to them regarding re-fixation of their salary and recovery of the allegedly excess-paid amount; representation to be filed within one week, to be disposed of by a speaking and reasoned order within three weeks thereafter; no recovery till disposal of the representation.

Issue for consideration

Whether the order dated 01.02.2022 re-fixing the petitioners' salary and directing recovery of excess payment, being an order carrying adverse civil consequences, could validly be passed without affording the petitioners an opportunity of hearing.

Court's answer

The petitioners must be given an opportunity of hearing against the re-fixation of their salary; only after affording such hearing and considering all the pleas raised by them can their salary be re-fixed and an order of recovery be passed, if found appropriate.

Ratio / Principle

If the petitioners submit a representation within one week, the authority concerned shall consider and dispose of it by a speaking and reasoned order within three weeks thereafter.

Key takeaways

Till disposal of the representation, no recovery shall be made from the petitioners; if the petitioners fail to make the representation, the benefit of this order will not be available to them.ratio¶13

Detailed headnote1 paragraphs

Writ petition by Dr. Shiv Poojan Awasthi and 2 others (appointed after 01.01.2016) against the order dated 01.02.2022 of the Director General, Medical and Health Department, U.P. (respondent No. 2), which - acting on audit by the office of the Accountant General, U.P. and an internal departmental audit - held their initial salary fixation at Rs. 61,300/- erroneous, re-fixed salary at the lowest of pay matrix level Rs. 5,400/- i.e. Rs. 56,100/- in terms of Government Order dated 22.12.2016, and directed recovery of the excess paid. Held: an order carrying adverse civil consequences cannot re-fix salary and order recovery without first affording the affected employees an opportunity of hearing and considering their pleas. Acting in line with Dr. Anuj Kumar Singh v. State of U.P., Writ A No. 2775 of 2022 (relied on by counsel), the Single Judge disposed of the petition with directions: petitioners may submit a representation within one week; the authority shall decide it by a speaking and reasoned order within three weeks; no recovery till disposal of the representation; the benefit is lost if no representation is filed.

Court No. - 7

Case :- WRIT - A No. - 3784 of 2022

Petitioner :- Dr. Shiv Poojan Awasthi And 2 Others Respondent :- State Of U.P. Thru. Addl. Chief Secy. Medical And Health Deptt. And 4 Others Counsel for Petitioner :- Rakesh Kumar Singh Counsel for Respondent :- C.S.C.

Hon'ble Subhash Vidyarthi,J.

Heard Shri Rakesh Kumar Singh, learned counsel for the petitioner and Shri Vinod Kumar Singh, learned Additional Chief Standing Counsel.

By means of the instant writ petition, the petitioners have challenged the validity of the order dated 01.02.2022 passed by the respondent No. 2 i.e. Director General, Medical and Health Department, Uttar Pradesh which states that during the audit conducted by the office of the Accountant General, Uttar Pradesh and in an internal departmental audit, it has been found that the petitioners' salary was fixed after the appointment on 01.01.2016 at Rs. 61,300/-, which was erroneous. As per the provision contained in a Government Order dated 22.12.2016, the salary of all officers/employees appointed after 01.01.2016 has to be fixed at the lowest level of the relevant pay matrix. The order further states that the petitioners' salary has to be fixed at the lowest of their matrix level of Rs. 5,400/-, at Rs. 56,100/-. The order further directs recovery of the excess amount paid to the petitioners.

The petitioners have assailed the aforesaid order on the ground that the aforesaid order carries adverse civil consequences against the petitioners and before passing the order, no opportunity of hearing was provided to the petitioners.

Learned counsel for the petitioners has placed reliance on the

judgment of this Court in the case of Dr. Anuj Kumar Singh and others Vs. State of U.P. and others , Writ A No. 2775 of 2022 decided on 16.05.2022.

Keeping in view the aforesaid submissions, I think it appropriate that the petitioners should be given an opportunity of hearing against the re-fixation of their salary and it is only after affording them an opportunity of hearing and considering all the pleas raised by them that their salary can be re-fixed and an order of recovery can be passed, if found appropriate.

In the aforesaid view of the matter, the petitioners are at liberty to submit a representation before the respondent No. 2 i.e. Director General, Medical & Health Department, Uttar Pradesh taking all the pleas available to them regarding re-fixation of their salary and recovery of the amount allegedly paid to them in excess of their salary.

In case the petitioners make a representation to this effect within a period of one week from today, the authority concerned shall proceed to consider and dispose of the same by a speaking and reasoned order, within a period of three weeks thereafter.

It is provided that till the disposal of the representation, no recovery shall be made from the petitioners. In case the petitioners fail to make representation, the benefit of this order will not be available to them.

With the aforesaid observations and directions, the writ petition stands disposed of .

Order Date :- 10.6.2022 Jaswant

Digitally signed by JASWANT KUMAR Date: 2022.06.11 16:30:27 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench