State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Lko and 3 Others Vs Mohd. Kaish

Neutral Citation No. - 2025:AHC-LKO:6766-DB

Court No. - 1

Case :- SPECIAL APPEAL DEFECTIVE No. - 35 of 2025

Appellant :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko And 3 Others Respondent :- Mohd. Kaish Counsel for Appellant :- C.S.C. Counsel for Respondent :- Ram Nath Pandey

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Hon'ble Attau Rahman Masoodi,J. Hon'ble Subhash Vidyarthi,J.

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(I.A. No.01 of 2025-Delay Condonation Application)

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Heard.

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This is an application for condonation of delay in filing the instant intra-Court Appeal.

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Cause shown in the affidavit filed in support of the application is sufficient.

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Application is allowed and delay in filing the instant intra-Court Appeal is hereby condoned.

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(Order on Appeal)

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Heard learned counsel appearing for the State and Shri Ram Nath Pandey, the learned counsel appearing on behalf of the sole respondent.

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The instant intra-Court Appeal has been preferred by the State against the judgment/order dated 25.10.2024 rendered by the Writ Court in Writ-A No.10096 of 2024 whereby the petition directed against an order of recovery of Rs.2,08,442/- is stated to have been allowed without inviting counter affidavit from the State.

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In paragraph 12 of the affidavit filed in support of the present Appeal, the State has set out the facts as under:-

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"That, the Hon'ble Single Judge passed the judgment and order dated 25.10.2024 without inviting counter affidavit and without providing opportunity to the State counsel to bring on record the undertaking given by the respondent/petitioner at the time of making excess payment."

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Although, the averment extracted above, prima facie, does not seem to be offensive but on a perusal of the order assailed in the Writ Petition, it is gathered that the respondent-employee was afforded opportunity in the recovery proceedings and he had also filed his reply in response to the notice. Moreover, at the time of grant of the benefit of pay fixation, an undertaking was taken from the respondent to the effect that in the eventuality of any discrepancy regarding fixation of pay leading to excess payment in favour of the employee, recovery of the excess amount was left open to be made at the discretion of the employer.

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Learned counsel for the State has contended that all these facts could not be stated before the Writ Court when the matter proceeded for hearing without filing of the counter affidavit.

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It is true that a fair procedure requires full opportunity to be granted to the adversarial parties in the litigation. It is also not ruled out that in many cases the questions of law being involved in the writ petitions, the same are decided at the admission stage keeping in view the averments made in the writ petition and the principles of law are applied after due opportunity to learned counsel for the State for making oral submissions.

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In the present case, however, the impugned judgment does not seem to consider the stand of the State Government to the effect that an undertaking was given to the employee as above. This aspect of the matter being relevant ought to have been considered by the Writ Court after providing an opportunity for filing a counter affidavit.

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The opening paragraph of the impugned judgment, however, does

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not show any sincere effort on the part of learned Standing Counsel to have prayed for filing a counter affidavit. In the body of the judgment impugned herein, it is clear that whatever was argued has been considered by the Writ Court. Therefore, much cannot be faulted with the decision merely on the ground of denial of opportunity to the State.

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A clear stand ought to have been taken before the Writ Court for availing any such opportunity so that the statements of this description are not made at the appellate stage touching upon the conscious of the judicial proceedings.

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We also take note of the fact that the State, as on date, has not issued any circular or at least in the present case proceeded against the erring officers who had advanced the benefit of fixation of pay in a wrongful manner. Such lapses are bound to be checked by the State Government in its administrative capacity leaving no scope for such a grievance to arise. This kills valuable time of the Courts of Law. We strike a note of caution for the State to consider such an aspect of the matter and set the administrative lapses right by issuing appropriate directions/circulars so that no such errors creep in while advancing financial benefits to the employees of the State.

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We are pained to notice that an averment has come to be made against the Court proceedings and the State ought not have left any scope for such statements in the judicial proceedings by placing an administrative check.

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The undertaking submitted by the respondent has since been filed as Annexure No.1 to the affidavit in support of this intra-Court Appeal, therefore, a case for interference is made out to the extent that the judgment impugned in this intra-Court Appeal is set-aside and the matter is remitted to the Writ Court for a decision afresh.

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We accordingly set-aside the judgment dated 25.10.2024 impugned herein this intra-Court Appeal with the liberty to the appellant for filing the counter affidavit not later than a period of fifteen days from today and in case a counter affidavit is filed, the respondent shall have ten days further time to file a rejoinder affidavit, if any. The writ petition shall be listed before the Writ Court in the list of fresh cases on 05.03.2025 .

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With the aforesaid directions, the intra-Court Appeal is hereby disposed off .

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(Subhash Vidyarthi,J.) (A. R. Masoodi,J.)

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Order Date :- 31.1.2025

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-Amit K-

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Digitally signed by :- AMIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Lko and 3 Others v. Mohd. Kaish

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State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Lko and 3 Others v. Mohd. Kaish

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