High Court

Learned counsel has placed reliance on judgment rendered by Hon'ble Supreme Court in the case of Sushil Kumar Singhal versus Pramukh Sachiv Irrigation Department and others, (2014) 16 SCC 444 as well as judgment rendered by Co- ordinate Bench of this Court in the case of Mohammad Kaish versus State of U.P. and others, 2024 SCC OnLine All 6373 as well as on the Government Order dated 16.01.2007.

5. Learned State Counsel has refuted submissions advanced by learned counsel for petitioner with the submission that earlier Grade Pay of Rs. 6600/- was made admissible to petitioner's late husband on account of confusion as to whether his post was equivalent to that of a Professor or an Assistant Lecturer with such confusion thereafter being resolved by State Government on the basis of a report submitted from the Directorate level and it was found that in terms of eligibility and qualifications required, the post of Work Shop Instructor, therefore, was equivalent only to that of Assistant Lecturer and not Professor due to which he was entitled only to Grade Pay of Rs.5400/- and not 6600/- and therefore, excess payment made to petitioner in lieu of post retiral benefits was adjusted from gratuity which was payable. It is, therefore, submitted that in view of such clarification and correction made, there is no interference warranted in the impugned order.

6. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, particularly the impugned order, it is evident that petitioner was granted 2nd A.C.P. vide order dated 20.07.2009 in the pay scale of Rs. 15600-39100 with Grade Pay of Rs. 6600/-. The impugned order admits that such a grade pay was made admissible to the husband of petitioner treating his post to be at par with that of a Professor. The impugned order also adverts to the fact that such a situation arose due to a confusion whether the post of Work Shop Instructor was at par with Assistant Lecturer or a Professor. It is also admitted that such confusion prevailed and continued till demise of petitioner's husband and was clarified only subsequently by the State Government vide letter dated 30.01.2024. It is thus evident that fixation of pay scale and grade pay of petitioner's late husband earlier in the year 2009 was not contrary either to any Rule or Government Order and was found to be in contradiction thereof only subsequently by means of order dated 30.01.2024.

7. In the considered opinion of this Court, such a clarification being issued after almost three years of demise of petitioner's husband and after almost 15 years from grant of such Grade Pay of Rs. 6600/- cannot have any retrospective operation particularly since at the time of grant of such benefit, there was no rule or order contrary to such pay fixation.

8. The aspect of recovery being effected in such circumstances has also been clarified by State Government in the Government Order No. सस-3-35/दस-07-101(6)-2005 dated 16.01.2007, which has been considered by Hon'ble Supreme Court in the case of Sushil Kumar Singhal (supra) in the following manner:- "5. It had been submitted by the learned counsel appearing for the appellant employee that the impugned judgment delivered by the High Court is incorrect for the reason that the High Court did not consider the G.O. dated 16-1-2007 bearing No. S-3 -35/10-07-101(6)/2005 which reads as under: "(1) Pension Fixation Authority shall inquire into emoluments of only last 10 months prior to retirement and for that examine the records of only two years prior thereto i.e. only the records of 34 months would be examined for the purpose of grant of pension, as has been provided in the aforesaid Government Order dated 13 -12-1977. (2) Pension Allowing Authority shall not be entitled to correct the mistake in determining the pay during service tenure beyond the period prescribed in Para (1) above. Mistakes in pay determination of an employee can be effectively removed through the process of general inquiry/audit only when the employee is still in service."

7. Upon perusal of the aforestated G.O. and the submission made by the learned counsel appearing for the appellant, it is not in dispute that the appellant had retired on 31-12-2003 and at the time of his retirement his salary was Rs 11,625 and on the basis of the said salary his pension had been fixed as Rs 9000. Admittedly, if any mistake had been committed in pay fixation, the mistake had been committed in 1986 i.e. much prior to the retirement of the appellant and therefore, by virtue of the aforestated G.O. dated 16-1-2007, neither any salary paid by mistake to the appellant could have been recovered nor pension of the appellant could have been reduced."

9. The said aspect has also been reiterated by Co-ordinate Bench of this Court in the case of Mohammad Kaish (supra) placing reliance on judgment rendered in the case of Sushil Kumar Singhal (supra).

10. The aforesaid aspect has also been dealt with by Hon'ble Supreme Court in the case of State of Punjab versus Rafiq Masih (White Washer), 2015 4 SCC 334, which has also been considered in the case of Mohammad Kaish (supra).

11. In view of discussion made hereinabove, it being evident that clarificatory order issued by State Government on

30.01.2024 would not have any retrospective operation and since there is no allegation that any wrong fixation of pay scale or pay grade was made at the instance of or by playing fraud by the deceased husband of petitioner, there was no occasion for the opposite parties to have adjusted the amount from gratuity as indicated in the order dated 27.10.2021.

12. In such circumstances, the impugned order dated

19.02.2024 is hereby quashed by issuance of a writ in the nature of certiorari. A further writ in the nature of mandamus is issued commanding the opposite parties to issue a modified pension payment order in favour of petitioner considering Grade Pay of Rs. 6600/- as last pay drawn to petitioner's late husband. Payment of any other outstanding dues of petitioner shall be ensured within a period of three months from the date a certified copy of this order is produced before the concerned authority. In the event that such dues are not paid within the aforesaid time frame, petitioner shall be entitled for interest @ 6% per annum w.e.f 22.04.2021 till the date of actual payment.

13. Consequently the petition succeeds and is allowed. Parties to bear their own cost. Order Date :- 7.7.2025 Satish

Learned counsel has placed reliance on judgment rendered by Hon'ble Supreme Court in the case of Sushil Kumar Singhal versus Pramukh Sachiv Irrigation Department and others, (2014) 16 SCC 444 as well as judgment rendered by Co- ordinate Bench of this Court in the case of Mohammad Kaish versus State of U.P. and others, 2024 SCC OnLine All 6373 as well as on the Government Order dated 16.01.2007.

5. Learned State Counsel has refuted submissions advanced by learned counsel for petitioner with the submission that earlier Grade Pay of Rs. 6600/- was made admissible to petitioner's late husband on account of confusion as to whether his post was equivalent to that of a Professor or an Assistant Lecturer with such confusion thereafter being resolved by State Government on the basis of a report submitted from the Directorate level and it was found that in terms of eligibility and qualifications required, the post of Work Shop Instructor, therefore, was equivalent only to that of Assistant Lecturer and not Professor due to which he was entitled only to Grade Pay of Rs.5400/- and not 6600/- and therefore, excess payment made to petitioner in lieu of post retiral benefits was adjusted from gratuity which was payable. It is, therefore, submitted that in view of such clarification and correction made, there is no interference warranted in the impugned order.

6. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, particularly the impugned order, it is evident that petitioner was granted 2nd A.C.P. vide order dated 20.07.2009 in the pay scale of Rs. 15600-39100 with Grade Pay of Rs. 6600/-. The impugned order admits that such a grade pay was made admissible to the husband of petitioner treating his post to be at par with that of a Professor. The impugned order also adverts to the fact that such a situation arose due to a confusion whether the post of Work Shop Instructor was at par with Assistant Lecturer or a Professor. It is also admitted that such confusion prevailed and continued till demise of petitioner's husband and was clarified only subsequently by the State Government vide letter dated 30.01.2024. It is thus evident that fixation of pay scale and grade pay of petitioner's late husband earlier in the year 2009 was not contrary either to any Rule or Government Order and was found to be in contradiction thereof only subsequently by means of order dated 30.01.2024.

7. In the considered opinion of this Court, such a clarification being issued after almost three years of demise of petitioner's husband and after almost 15 years from grant of such Grade Pay of Rs. 6600/- cannot have any retrospective operation particularly since at the time of grant of such benefit, there was no rule or order contrary to such pay fixation.

8. The aspect of recovery being effected in such circumstances has also been clarified by State Government in the Government Order No. सस-3-35/दस-07-101(6)-2005 dated 16.01.2007, which has been considered by Hon'ble Supreme Court in the case of Sushil Kumar Singhal (supra) in the following manner:- "5. It had been submitted by the learned counsel appearing for the appellant employee that the impugned judgment delivered by the High Court is incorrect for the reason that the High Court did not consider the G.O. dated 16-1-2007 bearing No. S-3 -35/10-07-101(6)/2005 which reads as under: "(1) Pension Fixation Authority shall inquire into emoluments of only last 10 months prior to retirement and for that examine the records of only two years prior thereto i.e. only the records of 34 months would be examined for the purpose of grant of pension, as has been provided in the aforesaid Government Order dated 13 -12-1977. (2) Pension Allowing Authority shall not be entitled to correct the mistake in determining the pay during service tenure beyond the period prescribed in Para (1) above. Mistakes in pay determination of an employee can be effectively removed through the process of general inquiry/audit only when the employee is still in service."

7. Upon perusal of the aforestated G.O. and the submission made by the learned counsel appearing for the appellant, it is not in dispute that the appellant had retired on 31-12-2003 and at the time of his retirement his salary was Rs 11,625 and on the basis of the said salary his pension had been fixed as Rs 9000. Admittedly, if any mistake had been committed in pay fixation, the mistake had been committed in 1986 i.e. much prior to the retirement of the appellant and therefore, by virtue of the aforestated G.O. dated 16-1-2007, neither any salary paid by mistake to the appellant could have been recovered nor pension of the appellant could have been reduced."

9. The said aspect has also been reiterated by Co-ordinate Bench of this Court in the case of Mohammad Kaish (supra) placing reliance on judgment rendered in the case of Sushil Kumar Singhal (supra).

10. The aforesaid aspect has also been dealt with by Hon'ble Supreme Court in the case of State of Punjab versus Rafiq Masih (White Washer), 2015 4 SCC 334, which has also been considered in the case of Mohammad Kaish (supra).

11. In view of discussion made hereinabove, it being evident that clarificatory order issued by State Government on

30.01.2024 would not have any retrospective operation and since there is no allegation that any wrong fixation of pay scale or pay grade was made at the instance of or by playing fraud by the deceased husband of petitioner, there was no occasion for the opposite parties to have adjusted the amount from gratuity as indicated in the order dated 27.10.2021.

12. In such circumstances, the impugned order dated

19.02.2024 is hereby quashed by issuance of a writ in the nature of certiorari. A further writ in the nature of mandamus is issued commanding the opposite parties to issue a modified pension payment order in favour of petitioner considering Grade Pay of Rs. 6600/- as last pay drawn to petitioner's late husband. Payment of any other outstanding dues of petitioner shall be ensured within a period of three months from the date a certified copy of this order is produced before the concerned authority. In the event that such dues are not paid within the aforesaid time frame, petitioner shall be entitled for interest @ 6% per annum w.e.f 22.04.2021 till the date of actual payment.

13. Consequently the petition succeeds and is allowed. Parties to bear their own cost. Order Date :- 7.7.2025 Satish