Mr. Arun Kumar Singh Tomar Vs Uttar Pradesh Forest Corporation through Its M.D.and Anr.

Neutral Citation No. - 2025:AHC-LKO:11947

Court No. - 5

Case :- WRIT - A No. - 5080 of 2018

Petitioner :- Mr. Arun Kumar Singh Tomar Respondent :- Uttar Pradesh Forest Corporation Through Its M.D.And Anr.

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Counsel for Petitioner :- Saurabh Shankar Srivastav Counsel for Respondent :- L.P.Shukla,Lakshmipat Shukla

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Hon'ble Abdul Moin,J.

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Heard learned counsel for the petitioner and Shri Som Kartik, Advocate holding brief of Shri L.P. Shukla, learned counsel for the respondents.

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The instant petition has been filed for the following main reliefs:

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"(i). Issue a writ, order or direction in the nature of certiorari setting aside the impugned order dated 27.12.2017, a copy of which is annexure 8 to the petition.

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(ii). Issue a writ, order of direction in the nature of certiorari setting aside the consequential recovery order dated 28.12.2017, a copy of which is annexure 9 to the petition.

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(iii). Issue a writ, order or direction in the nature of mandamus commanding the respondents to release the salary of the petitioner for the month of December 2017 as well as all his retirement dues and further restrain them from using any coercive measures against the petitioner for recovery of any amount."

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At the very outset, learned counsel for the petitioner states during pendency of the writ petition, the relief Nos. (i) and (iii) already stand granted by the respondents and as such, he would

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not be pressing on the said prayers.

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Accordingly, the writ petition is dismissed as not pressed so far as the prayer Nos. (i) and (iii) made in the petition are concerned.

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Upon filing of the petition, this Court had passed a detailed interim order dated 19.02.2018 which, for the sake of convenience, is reproduced below:

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"Heard learned counsel for the petitioner and learned Standing Counsel as well as learned counsel for the Corporation.

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This petition has been filed challenging the order dated 27.12.2017 passed by the respondents as contained in Annexure-8 to the writ petition as well as the consequential recovery order dated 28.12.2017 as contained in Annexure-9 to the writ petition.

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Submission of learned counsel for the petitioner is that the Government Order dated 05.11.2014 has been misinterpreted and Clause-19 of the aforesaid Government Order speaks about the source of recruitment and source of recruitment has been provided under amended Regulation 162(7), which reads as under:

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"(i) 33.33% by absorption or by deputation of Forest Officers.

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(ii) 66.67% by promotion from amongst Logging Officers/Sales Officers of a minimum of 5 years service on that post."

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Learned counsel for the petitioner submits that the aforesaid rule contemplates source of recruitment only by promotion and not by any other process and, therefore, Clause-19 of the Government Order dated 05.11.2014 would be applicable against the petitioner.

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In the aforesaid circumstances, operation of the order dated 27.12.2017 and the consequential order dated 28.12.2017 shall remain stayed till the next date of listing.

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Learned counsel for the Corporation states that the entire dues of the petitioner would be released except the amount which is under dispute within a period of one month from today.

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Looking to the aforesaid contention of learned counsel for the respondents, respondents are directed to release the retiral dues of the petitioner in accordance with the statement given by learned counsel for the Corporation within a month. Rest of the amount shall be invested in auto renewal interest bearing fixed deposit account, which shall be subject to decision of the writ petition.

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Respondents may file counter affidavit within two weeks. Rejoinder affidavit, if any, may be filed within one week thereafter.

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List after expiry of the aforesaid period."

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Learned counsel for the petitioner states that considering the aforesaid order, the only thing that now remains to be decided by this Court is the leave encashment for the ten months and the validity of the order dated 28.12.2017, a copy of which is annexure 9 to the petition, by which a recovery has been directed to be made from the petitioner w.e.f. 14.04.2012 till passing of the order impugned dated 28.12.2017.

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Bereft of unnecessary details, the facts set forth by learned counsel for the petitioner are that the petitioner was initially appointed in the year 1983 as an Assistant Logging Supervisor. On 06.05.2000, he was promoted to the post of Sales Officer. On 22.08.2003, he was promoted as Divisional Sales Manager (DSM).

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It is contended that a final seniority list of the cadre had been drawn up on 28.08.2012, a copy of which is annexure 5 to the petition, in which the name of the petitioner finds place at serial no.12 vis-a-vis that of Shri S.P. Sinha and Shri Reddy Razzaiya, whose names find place at serial nos.13 & 14 respectively.

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Even prior to the said seniority list, the Government Order dated 04.05.2010, a copy of which is annexure 3 to the petition, had been issued which provided in clause 2(3) for stepping up of the pay of a senior person in case a junior was drawing a higher pay.

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The aforesaid government order was followed by the Government Order dated 05.11.2014, a copy of which is annexure 7 to the petition, which also provided likewise.

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As the claim of the petitioner was that despite he being senior to Shri S.P. Sinha and Shri Reddy Razzaiya, as indicated

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in the seniority list dated 28.08.2012, his pay was lower than the aforesaid persons, consequently, he represented to the respondents for stepping up of his pay which resulted in the respondents passing an order dated 27.02.2013, a copy of which is annexure 6 to the petition, whereby, considering the Government Order dated 04.05.2010, the pay of the petitioner was stepped up at par with his junior Shri S.P. Sinha i.e. on the grade pay of Rs.8700/-

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Even prior to the petitioner being promoted as DSM in the year 2003, his promotion as Sales Officer vide order dated 06.05.2000 had been challenged be certain persons by filing Writ Petition No.1594(S/B) of 2003 in Re: R.U. Khan and 3 Others vs. U.P. Forest Corp. and 2 Others. The Division Bench of this Court, vide judgment and order dated 08.01.2016, a copy of which is annexure CA-1 to the counter affidavit dated 17.07.2018, quashed the order of promotion dated 22.08.2003 by which the petitioner has been promoted on the post of DSM and directed the respondents to consider the promotion of the petitioners in the said petition as well as the respondent No.3 (petitioner herein) afresh.

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In pursuance to the order passed by the Division Bench of this Court dated 08.01.2016, the petitioner has been promoted as DSM vide order dated 30.12.2017, a copy of which is annexure CA-3 to the counter affidavit dated 17.07.2018, which order has been made subject to the decision of the SLP. Subsequent thereto, the petitioner has retired on attaining the age of superannuation on 31.12.2018.

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In turn, the said judgment has attained finality with Special Leave to Appeal (C) No.7750 of 2016 in Re: Arun Kumar Singh Tomar vs. U.P. Forest Corporation and Ors. being dismissed by the Hon'ble Supreme Court vide judgment dated

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24.07.2018 but a protection has been given to the petitioner that as the petitioner has worked on the post of DSM from 22.08.2003 till 28.12.2017, the gratuity and unpaid salary, if any, shall be paid at the scale in the sum due to DSM to which DSM would have been entitled to for the aforesaid period, holding the said post. The copy of the order of the Hon'ble Supreme Court is annexed as annexure SRA-1 to the supplementary rejoinder affidavit dated dated 22.07.2021.

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So far as the case now is concerned, the ten months leave encashment has not been paid to the petitioner and the order impugned dated 28.12.2017 has been issued for recovery of the excess amount paid to the petitioner.

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The argument of learned counsel for the petitioner is that as the Hon'ble supreme Court while dismissing the SLP has protected the salary drawn by the petitioner in the capacity of being the DSM, consequently, the respondents could not have passed the order impugned dated 28.12.2017 for recovering the excess amount paid to the petitioner. It is also argued that the petitioner is entitled for ten months leave encashment on the basis of the salary drawn by the petitioner including the grade pay of Rs.8700/- that has been granted to him considering the order passed by the Hon'ble Supreme Court. The further argument is that the promotion order dated 30.12.2017 has been passed by an incompetent authority and, thus, would have no effect in the eyes of law.

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Responding to that, Shri Som Karthik, learned counsel appearing for the respondents has argued that after the promotion order of the petitioner on the post of DSM had been set aside by the Division Bench of this Court, the Hon'ble Supreme Court has affirmed the said order and has only protected the salary drawn by the petitioner while working on

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the post of DSM.

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Shri Kartik submits that even prior to the time of his pay fixation, as had been done vide order dated 27.02.2013, the petitioner had submitted an undertaking dated 02.01.2010, a copy of which is part of annexure CA-5 to the counter affidavit, by which he had indicated that in case the pay fixation of the petitioner is found erroneous then the respondents would be at liberty of recovering the aforesaid amount from the petitioner.

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It is contended that although the Hon'ble Supreme Court in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and Others 2015 (4) SCC 334 has provided that no recovery shall be permissible from retired employees yet in the instant case, the aforesaid judgment may not come to the rescue of the petitioner inasmuch as the Hon'ble Supreme Court, after considering an undertaking given by an employee, has been of the view that once an undertaking has been given by an employee, consequently, the principles of law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) would not be attracted. This has been laid down by the Hon'ble Supreme Court in the case of High Court of Punjab and Haryana and Others vs. Jagdev Singh 2016 (14) SCC 267. Thus, once the petitioner has given an undertaking, as such, the respondents are at liberty of recovering the excess amount which has been paid to the petitioner despite the order passed by the Hon'ble Supreme Court in this regard.

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It is also contended that so far as the ten months' leave encashment is concerned, considering the order passed by the Hon'ble Supreme Court in the SLP, certainly the petitioner would be entitled for the ten months' leave encashment on the basis of the pay scale drawn by the petitioner as DSM but by no stretch of imagination he would be entitled for payment of the

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leave encashment in the higher grade pay of Rs.8700/- that had been granted to him, for which he had given an undertaking. It is also contended that Hon'ble Supreme Court while dismissing the SLP has only protected the payment of gratuity and the unpaid salary and nowhere provided that the other dues would also adhere to the order passed by the Hon'ble Supreme Court and consequently, there is no error in the recovery error which has been passed by the respondents dated 28.12.2017.

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Heard the learned counsels for the parties and perused the record.

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From a perusal of record, it emerges that while the petitioner was working as Assistant Logging Supervisor, he was promoted as the Sales Officer on 06.05.2000 and further promoted as DSM on 22.08.2003. His promotion order was challenged before this Court. The Division Bench of this Court, vide judgment and order dated 08.01.2016, quashed the promotion order of the petitioner dated 22.08.2003 which had been made on the post of DSM and further directed for a fresh consideration for promotion.

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In pursuance thereof, the petitioner has been promoted as DSM vide order dated 30.12.2017.

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In turn, the Division Bench's judgment of this Court dated 08.01.2016 has been affirmed with the dismissal of the SLP by the Hon'ble Supreme Court vide order dated dated 24.07.2018 but the unpaid salary of the petitioner along with the gratuity has been protected.

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Incidentally, during the pendency of the writ petition before the Division Bench of this Court, the petitioner had been granted promotion as DSM on 22.08.2003 and considering the

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Government Order dated 04.05.2010, he had also been granted pay fixation at par with his junior namely Shri S.P. Sinha by granting him grade pay of RS.8700/- w.e.f. 14.04.2012 vide order dated 27.02.2013.

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The Hon'ble Supreme Court while dismissing the SLP has protected the salary of the petitioner drawn as DSM which obviously would include the salary which the petitioner was drawing as DSM without any benefit or the upgradation which has been granted to the petitioner at par with his junior namely Shri S.P. Sinha, more particularly, when the promotion order of the petitioner as DSM dated 22.08.2003 was itself quashed and set aside by the Division Bench of this Court and in turn affirmed by the Hon'ble Supreme Court.

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So far as the argument of the petitioner that the promotion order dated 30.12.2017, which has been passed by the respondents promoting him as DSM has been passed by an incompetent authority is concerned, it is needless to mention that it is a settled proposition of law that even an illegal order has to be challenged. In the instant case, no challenge has been raised to the promotion order dated 03.12.2017 and perhaps the same may also be meaningless considering the fact that the promotion order of the petitioner dated 22.08.2003 as DSM had already been quashed by the Division Bench of this Court and has attained finality with the dismissal of the SLP but for the fact that the petitioner would be entitled for payment of salary drawn while working as DSM as per the protection granted by the Hon'ble Supreme Court while dismissing the SLP.

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At this stage, the Court may also examine as to whether the respondents are within the rights of directing for any recovery for the higher salary which has been drawn by the petitioner while working on the post of DSM considering the Division

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Bench's judgment of this Court as affirmed by the Hon'ble Supreme Court vis-a-vis the judgment of the Hon'ble Supreme Court in the case of Rafiq Masih (supra) and Jagdev Singh (supra).

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The Hon'ble Supreme Court in the case of Rafiq Masih (supra) has directed that no recovery is permissible from a retired employee.

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The Hon'ble Suprme Court in the case of Jagdev Singh (supra) has held that in case an undertaking has been given by the employee concerned authorising the respondents to recover any amount which has been paid erroneously, then the principle of law as laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) would not be applicable.

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In the instant case, admittedly, the petitioner had given an undertaking to the respondents on 02.10.2010 authorising them to recover any erroneous fixation.

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The salary drawn by the petitioner on the post of DSM already stands protected by the order of the Hon'ble Supreme Court. Thus, the only erroneous fixation which has been made by the respondents appears to be the grade pay of Rs.8700/- that had been granted to him at par with his junior namely Shri S.P. Sinha.

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Accordingly, considering the undertaking that has been given by petitioner as well as the judgment of the Hon'ble Supreme Court in the case of Jagdev Singh (supra) , it is apparent that the respondents would be within their right of recovering the excess amount on account of fixation of the petitioner in the grade pay of Rs.8700/- but nothing further would be recoverable from the petitioner, including the salary

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of DSM as per order of the Hon'ble Supreme Court.

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As the Hon'ble Supreme Court has already protected the salary of the petitioner drawn on the post of DSM and no other benefit except gratuity has been accorded to the petitioner, consequently, the petitioner would not be entitled for being paid the ten months' leave encashment by taking the grade pay of Rs.8700/- but would be entitled for ten months' leave encashment otherwise as stated by Shri Shukla.

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Keeping in view of the aforesaid discussion, no case for interference is made out.

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The writ petition is dismissed with the aforesaid observations.

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Order Date :- 27.2.2025 S. Shivhare

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Digitally signed by :- SHASHANK SHIVHARE High Court of Judicature at Allahabad, Lucknow Bench

Mr. Arun Kumar Singh Tomar v. Uttar Pradesh Forest Corporation through Its M.D.and Anr.

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Mr. Arun Kumar Singh Tomar v. Uttar Pradesh Forest Corporation through Its M.D.and Anr.

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