Ritu Raj Awasthi, J.—

Heard Mr. Avinash Chandra, learned counsel for petitioner as well as Mohd. Mansoor, learned Chief Standing Counsel and perused the records.

The writ petition has been filed challenging the order dated 29th February, 2012 whereby an amount of Rs. 2,58,781/- has been ordered to be recovered from petitioner and petitioner has been directed to deposit the same otherwise it would be recovered as arrears of land revenue.

Learned counsel for petitioner submits that petitioner was not provided opportunity of hearing before passing of the impugned order and, as such, it is not sustainable in the eyes of law.

Submission is that the impugned recovery is not simple recovery as contemplated under minor penalties given under Rule 3 of Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (for short 'the 1999 Rules') as it amounts to termination of service as the authorities have directed to recover the entire salary paid to petitioner during the period he has worked as Bandi Rakshak.

It is further submitted that in any case petitioner has, admittedly, worked during the period 20.7.2004 to May, 2007 and, as such, he is entitled to get salary for the said period. There is no question of recovery of the said amount.

It is also submitted that no formal order of termination of service has been communicated to petitioner till date and mere filing of charge-sheet would not conclude that appointment of petitioner was obtained by fraud.

Learned counsel for petitioner in support of his submission has relied on the interim order dated 26.4.2012 passed in Writ Petition No. 1872 (SS) of 2012; Vishwa Nath Verma Vs. State of U.P. and others which is said to have been passed under similar facts and circumstances.

In support of his submission, learned counsel for petitioner has also relied on a judgment of the Supreme Court in the case of Kailash Singh Vs. State of Bihar and others; (2005) 13 Supreme Court Cases 576 wherein the Court has directed that no recovery of salary paid to the appellant shall be made.

Learned counsel for petitioner has also relied on a division bench judgment of this Court in the case of Sushil Kumar Pandey Vs. State of U.P. and Ors.; 2010 6 AWC 5748, particularly para 22, wherein the Court has observed that it would be too harsh to recover the salary paid to the appellant for the acts and omission on his part as there is also omission and negligence on the part of the authorities in granting appointment to him.

Learned Chief Standing Counsel on the basis of instructions submits that petitioner had forged last pay certificate and transfer order dated 30.6.2004 and on the basis of forged documents he had joined and worked in Azamgarh Division at District Jail, Mau. In this regard, an enquiry was conducted by CB CID and a criminal case at Crime No. 804A of 2007, under Sections 419, 420, 467, 468 & 471 IPC was lodged against the petitioner. The said case is pending trial.

It was on the basis of said offence that the authorities have taken a decision to dispense with the service of petitioner. In this regard, petitioner has filed Writ Petition No. 1165 of 2008 which is pending in this Court at Allahabad.

It is contended by learned Chief Standing Counsel that since petitioner had obtained appointment by fraud as such he was not required to be given any opportunity.

In support of his submission, learned Chief Standing Counsel has relied on the following decisions:

"(i) R. Vishwanatha Pillai Vs. State of Kerala and others; (2004) 2 Supreme Court Cases 105, para 15.

(ii) Secretary, Andhra Pradesh Social Welfare Residential Educational Institutions Vs Pindiga Sridhar and others; (2007) 13 Supreme Court Cases 352, para 7.

(iii) State of Chhattisgardh and others Vs. Dhirjo Kumar Sengar; (2009) 13 Supreme Court Cases 600, para 17, 19 & 21."

I have considered the submissions made by the parties' counsel.

From the order impugned it is apparent that the impugned recovery has been ordered for the period 20.7.2004 to May, 2007 fro

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