Banda Development Authority , Banda, Thru. Its Secy. Vs Anil Kumar Gangwar and 2 Others

Neutral Citation No. - 2025:AHC-LKO:18804-DB

Court No. - 1

Case :- SPECIAL APPEAL DEFECTIVE No. - 134 of 2025

Appellant :- Banda Development Authority , Banda, Thru. Its Secy. Respondent :- Anil Kumar Gangwar And 2 Others Counsel for Appellant :- Jyotinjay Verma Counsel for Respondent :- C.S.C.,Ratnesh Chandra

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Hon'ble Attau Rahman Masoodi,J. Hon'ble Rajeev Singh,J.

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Heard learned counsel for the appellant and Shri Shirish Kumar, learned counsel who has put in appearance on behalf of the respondent-employee and Sri Indrajeet Shukla, learned counsel for respondent no.2.

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Vakalatnama filed on behalf of the respondent no.3 by Sri Krishna Mohan, Advocate is taken on record.

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There is a delay of 34 days in filing the special appeal, however, since there is no objection and the cause shown appears to be sufficient, the delay in filing the appeal is condoned and the application for condonation of delay is allowed.

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Sri Shirish Kumar, learned counsel for respondent-employee at the threshold of proceedings has submitted that the controversy which has arisen in the present intra-court appeal is squarely covered under the judgment rendered by a coordinate Bench of this Court on 17.02.2025 in Special Appeal No.328 of 2023 and the issue arising therefrom is no more res integra , therefore the present intra-court appeal deserves to be rejected in terms of the aforesaid judgment.

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Inviting our attention to paragraph 12 of the aforementioned judgment, it is argued that in the present case as well, the fixation of personal pay in favour of respondent-employee was carried out way back on 07.08.2004 whereafter the respondentemployee has been paid his salary as per fixation of pay made by the department without there being any misrepresentation on his part. The payment so made has continued till the date of retirement of the respondent-employee and was never objected against or found anomalous for any rectification. The respondent-employee according to him retired on 30.04.2021 as a result whereof, the Pension Payment Order was issued at the

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last pay drawn for a sum of Rs.56,200/- vide order dated 22.05.2021. After fixation of his pension as above by treating the last pay drawn as fixed, surprisingly the rectification measures with respect to the fixation of pay of the respondentemployee were taken up at his back and a corrective order was passed by the authorities on 31.01.2024. Consequential recovery in pursuance thereof was also resorted to.

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The respondent-employee feeling aggrieved against the consequential recovery preferred Writ-A No.1336 of 2024 wherein final order was passed by this Court on 19.03.2024 setting aside the order dated 31.01.2024 as well as consequential recovery with a further direction to the competent authority for passing a fresh order after due opportunity to the respondent-employee. Subsequently, a fresh order with respect to recovery of excess amount of salary came to be passed on 10.05.2024 against which the respondent-employee feeling aggrieved has approached this Court by filing a Writ-A No.4742 of 2024. This Court having regard to the case set up has passed a reasoned order on 27.06.2024 whereby the recovery of excess amount sought to be recovered has been stayed. Simultaneously, proceedings for refixation of pension appear to have been initiated on the same premise and an order revising the payment of pension was passed on 31.07.2024 reducing the pension from Rs. 56,200 to 52,950/- although there is no recovery of the excess pension paid after the date of retirement but the order passed on 31.07.2024 is sought to be operated prospectively by the departmental authorities.

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Learned counsel for the appellant has argued that the refixation of pension and recovery of excess amount of salary paid to the respondent-employee were two different issues and the formal issue has not been decided by the writ court in the correct perspective of law.

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We are unable to appreciate the arguments put forth before us by the appellant looking to the judgment relied upon by learned counsel for the respondent-employee, particularly placing reliance upon paragraph 12, which for ready reference is extracted below:-

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"12. Coming to the aspect of the relief granted by learned Single Judge in quashing the order as such is concerned, a co-ordinate Bench of this Court in State of U.P. Vs. Suresh Kumar Tripathi : Writ-A No. 3194 of 2022, decided on 16.07.2024, after referring to judgment of Hon'ble Supreme Court in Sushil Kumar Singhal Vs. Pramukh Sachiv Irrigation Department and others : (2014) 16 SCC 444, came to the conclusion that a pension fixation authority is entitled to inquire into the emoluments of only last 10 months prior to the date of retirement and can examine the records of only 2 years prior thereto, i.e., only the record of 34 months can

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be examined for the purpose of grant of pension in terms of the Government Order dated 16.01.2007 and, as such, for grant of pension, on account of the purported wrong grant of selection grade prior to the said period of 34 months of the date of retirement cannot be looked into. In view of what has been laid down by Hon'ble Supreme Court in Sushil Kumar Singhal (supra), as followed in the case of Suresh Kumar Tripathi (supra) , the said plea raised by the respondent in view of the Government Order dated 16.01.2007, regarding whi6ch, it is not the case of the appellants that the same is not applicable/withdrawn/modified/superseded, also cannot be accepted."

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It is not in dispute that the fixation of pay was carried out way back in the year 2004 as mentioned above and the benefit thereof was not open to any correction by the departmental authorities for the purpose of fixation of pay after such a long duration particularly when there was no misrepresentation on the part of respondent-employee.

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The judgment relied upon by learned counsel for respondent-employee is squarely applicable in the facts and circumstances of the present case. Thus, the argument put forth by learned counsel for the appellant that writ court has not applied its mind or considered the issue in the right perspective of law, the submission in our humble consideration is wholly misconceived and does not persuade us to take a different view in the matter.

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The intra court appeal being bereft of any merit is dismissed accordingly.

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[Rajeev Singh,J.] [Attau Rahman Masoodi, J.]

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Order Date :- 4.4.2025 Renu/-

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Digitally signed by :- RENU AGARWAL High Court of Judicature at Allahabad, Lucknow Bench

Banda Development Authority , Banda, Thru. Its Secy. v. Anil Kumar Gangwar and 2 Others

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Banda Development Authority , Banda, Thru. Its Secy. v. Anil Kumar Gangwar and 2 Others

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