High Court · 2025

Petitioner :- Smt. Shashi Kala Singh Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Durga Tiwari,Niranjan Lal Srivastava Counsel for Respondent :- C.S.C. Hon'ble Donadi Ramesh,J.

1. Heard learned counsel for the parties.

2. The writ petition is filed by the petitioner for the following reliefs: "a. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 02.08.2017 (Annexure No.4 of the writ petition) and the impugned order dated 11.10.2017 (Annexure No.6 of the writ petition) passed by the respondents No.6 and 5 with all consequential benefits. b. Issue a writ, order or direction in the nature of mandamus commanding the respondents refund the amount of Rs.2,69,893/-to petitioner with 10% interest per annum from April, 2017 till the date of actual payment. c. Issue a writ, order or direction in the nature of mandamus commanding the respondents to re-fix the pension of the petitioner on the basis of the average salary of last 10 months prior to retirement which the petitioner was already receiving before retirement and pay the arrears of pension to the petitioner accordingly with 10% interest per annum from the date of retirement till the date of actual payment."

3. The petitioner was appointed as L.T. Grade teacher and she was promoted as Principal in the Government Girls Inter College, Banda. After attaining the age of superannuation on 31.03.2017, she has retired. While working from January, 2017 to March 2017, the respondents have not released salary of the petitioner. Hence, after retirement, she made a request for release of the salary. Instead of releasing the salary, the respondents have passed the impugned order adjusting three months salary as recovery for wrong fixation done in the year 2006.

4.In support of the contention, learned counsel for the petitioner has placed reliance on the decisions of the the Apex Court in the case of State of Punjab and others Vs. Rafiq Masih and others (2015) 2 SCC (L & S) 33 and Thomas Daniel Vs. State of Kerala and others in Civil Appeal No.7115 of 2010 decided on 02.05.2022, more specifically on paragraph nos.12, 13 and 14 of Thomas Daniel case (supra) which reads as under: "(12) In Syed Abdul Qadir and Others v. State of Bihar and Others excess payınent was sought to be recovered which was made to the appellants-teachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The appellants therein contended that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellants cannot be held responsible in such a situation and recovery of the excess payment should not be ordered, especially when the employee has subsequently retired. The court observed that in general parlance, recovery is prohibited by courts where there exists no misrepresentation or fraud on the part of the employee and when the excess payment has been made by applying a wrong interpretation/ understanding of a Rule or Order. It was held thus: "59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit. admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." (13) In State of Punjab and Others v. Rafiq Masih (White Washer) and Others¹ wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus: "8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India. even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.

18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the date of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover." (14) Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General."

5. Learned counsel for the petitioner has submitted that the petitioner has nothing to do with fixation of the pay scale. No allegations were made against the petitioner with regard to fixation of the pay scale in the year 2006. Hence, the respondents ought not to have recovered said amount. Therefore, the petitioner has requested to release the same.

6. After notice, the respondents have filed counter affidavit stating therein that prior to the retirement of the petitioner, her entire service records were sent to the office of the District Inspector of Schools, Banda for fixation of her pay in accordance with the recommendation made by 7th Pay Commission. During scrutiny and examination of records by the Finance & Accounts Officer, office of the DIOS, Banda, it was found that in the year 2006, the pay of the petitioner was fixed contrary to the recommendation made by the 6th Pay Commission. On 01.01.2006, the pay of the petitioner was fixed in the Grade Pay of Rs.7600/- in place of Rs.5400/-.

7. In view of the said discrepancy on erroneous fixation, a show cause notice was issued on 01.03.2017 and in response to the said show cause notice, the petitioner submitted reply on 30.03.2017. On perusal of copy of the pay fixation chart, it appears that the same has been prepared by the petitioner herself. Except that, no allegation has been made against the petitioner in the counter affidavit.

8. Taking into consideration facts and circumstances of the case as also pay fixation of the 6th Pay Commission in the year 2006, as on date the petitioner was working only as L.T. Grade teacher, she has nothing to do with the fixation of the pay. Hence, the respondents have not been able to prove involvement of the petitioner in fixation of the pay as per the 6th Pay Commission. In the said circumstances, as per observations made by the Apex Court in the above referred to cases, the impugned recovery is contrary to law. Accordingly, the impugned recovery is quashed directing the respondents to release the amount to the petitioner which was recovered from her salary within a period of two months from the date of receipt of the copy of this order.

9. Consequently, the present writ petition is allowed. Order Date :- 22.5.2025 (Donadi Ramesh, J.) RAKESH KUMAR GAUTAM High Court of Judicature at Allahabad

Petitioner :- Smt. Shashi Kala Singh Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Durga Tiwari,Niranjan Lal Srivastava Counsel for Respondent :- C.S.C. Hon'ble Donadi Ramesh,J.

1. Heard learned counsel for the parties.

2. The writ petition is filed by the petitioner for the following reliefs: "a. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 02.08.2017 (Annexure No.4 of the writ petition) and the impugned order dated 11.10.2017 (Annexure No.6 of the writ petition) passed by the respondents No.6 and 5 with all consequential benefits. b. Issue a writ, order or direction in the nature of mandamus commanding the respondents refund the amount of Rs.2,69,893/-to petitioner with 10% interest per annum from April, 2017 till the date of actual payment. c. Issue a writ, order or direction in the nature of mandamus commanding the respondents to re-fix the pension of the petitioner on the basis of the average salary of last 10 months prior to retirement which the petitioner was already receiving before retirement and pay the arrears of pension to the petitioner accordingly with 10% interest per annum from the date of retirement till the date of actual payment."

3. The petitioner was appointed as L.T. Grade teacher and she was promoted as Principal in the Government Girls Inter College, Banda. After attaining the age of superannuation on 31.03.2017, she has retired. While working from January, 2017 to March 2017, the respondents have not released salary of the petitioner. Hence, after retirement, she made a request for release of the salary. Instead of releasing the salary, the respondents have passed the impugned order adjusting three months salary as recovery for wrong fixation done in the year 2006.

4.In support of the contention, learned counsel for the petitioner has placed reliance on the decisions of the the Apex Court in the case of State of Punjab and others Vs. Rafiq Masih and others (2015) 2 SCC (L & S) 33 and Thomas Daniel Vs. State of Kerala and others in Civil Appeal No.7115 of 2010 decided on 02.05.2022, more specifically on paragraph nos.12, 13 and 14 of Thomas Daniel case (supra) which reads as under: "(12) In Syed Abdul Qadir and Others v. State of Bihar and Others excess payınent was sought to be recovered which was made to the appellants-teachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The appellants therein contended that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellants cannot be held responsible in such a situation and recovery of the excess payment should not be ordered, especially when the employee has subsequently retired. The court observed that in general parlance, recovery is prohibited by courts where there exists no misrepresentation or fraud on the part of the employee and when the excess payment has been made by applying a wrong interpretation/ understanding of a Rule or Order. It was held thus: "59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit. admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." (13) In State of Punjab and Others v. Rafiq Masih (White Washer) and Others¹ wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus: "8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India. even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.

18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the date of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover." (14) Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General."

5. Learned counsel for the petitioner has submitted that the petitioner has nothing to do with fixation of the pay scale. No allegations were made against the petitioner with regard to fixation of the pay scale in the year 2006. Hence, the respondents ought not to have recovered said amount. Therefore, the petitioner has requested to release the same.

6. After notice, the respondents have filed counter affidavit stating therein that prior to the retirement of the petitioner, her entire service records were sent to the office of the District Inspector of Schools, Banda for fixation of her pay in accordance with the recommendation made by 7th Pay Commission. During scrutiny and examination of records by the Finance & Accounts Officer, office of the DIOS, Banda, it was found that in the year 2006, the pay of the petitioner was fixed contrary to the recommendation made by the 6th Pay Commission. On 01.01.2006, the pay of the petitioner was fixed in the Grade Pay of Rs.7600/- in place of Rs.5400/-.

7. In view of the said discrepancy on erroneous fixation, a show cause notice was issued on 01.03.2017 and in response to the said show cause notice, the petitioner submitted reply on 30.03.2017. On perusal of copy of the pay fixation chart, it appears that the same has been prepared by the petitioner herself. Except that, no allegation has been made against the petitioner in the counter affidavit.

8. Taking into consideration facts and circumstances of the case as also pay fixation of the 6th Pay Commission in the year 2006, as on date the petitioner was working only as L.T. Grade teacher, she has nothing to do with the fixation of the pay. Hence, the respondents have not been able to prove involvement of the petitioner in fixation of the pay as per the 6th Pay Commission. In the said circumstances, as per observations made by the Apex Court in the above referred to cases, the impugned recovery is contrary to law. Accordingly, the impugned recovery is quashed directing the respondents to release the amount to the petitioner which was recovered from her salary within a period of two months from the date of receipt of the copy of this order.

9. Consequently, the present writ petition is allowed. Order Date :- 22.5.2025 (Donadi Ramesh, J.) RAKESH KUMAR GAUTAM High Court of Judicature at Allahabad