High Court
Case Details
Neutral Citation No. - 2025:AHC:101071 Court No. - 4 Case :- WRIT - A No. - 19870 of 2022 Petitioner :- Surendra Singh Chauhan And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Puneet Kumar Verma,Rajesh Kumar Singh Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J. 1. Heard Shri Puneet Kumar Verma, learned counsel appearing for petitioner and learned Additional Chief Standing Counsel appearing for State respondents. 2. Petitioners who have retired as Group D employees from the respondent establishment on 28.02.2021 and 31.08.2022 are aggrieved by the order passed against them for refixation and consequential recovery dated 17.09.2021 and 23.09.2021 brought on record as annexure No. 3 and 4 respectively.
Legal Reasoning
3. It is contended on behalf of petitioners that petitioners having been retired as Group D employee could not have been subjected to any recovery for any alleged wrongful pay fixation in the light of the judgment of the Supreme Court in the case of State of Punjab v. Rafiq Masih (White Washer) (2015) 4 SCC 334 in as much as no refixation of pay of these retired employees could have been done beyond a period of 34 months in the light of the Government Order of the year 2007 and the judgment of Supreme Court interpreting the said Government Order in the case of Sushil Kumar Singhal v. Pramukh Sachiv Irrigation Department and others 2014 (16) SCC 444. It is further contended that petitioners having not given any undertaking at the time of refixation as they had not even represented for a particular grade pay or pay fixation at the time it was done, there cases do not fall in the exception clause as provided under the Judgemnt of the Supreme Court in the case of Punjab and Haryana High Court and others v. Jagdev Singh 2016 (14) SCC 287. 4. On the contrary it is argued by learned Standing Counsel that at the time of superannuation petitioners had given an undertaking that if any excess payment was made, that was liable to be recovered. He has also sought to justify the orders impugned for the reasons assigned therein as well as the pleadings raised in the counter affidavit. However, on the point of opportunity of hearing the legal principle as enunciated in the judgment of the Supreme Court in the case of Rafiq Masih and Jagdev Singh respectively, learned Additional Chief Standing Counsel could not dispute that no recovery could have been ordered from the retired group D employees. On the question of pay fixation beyond the period of thirty four weeks as has been held to be barred under the Government Order of the year 2007, learned Additional Chief Standing Counsel submits that this is the legal position and this Court may proceed to decide the matter applying the principle in the sitting facts of the case. 5. Having heard learned counsel for respective parties and having perused the records, I find that the orders whereby the pay corrections have been made have been passed after the petitioners attaining the age of superannuation and hence, on the tough stone of the principle laid down in the case case of Rafiq Masih (supra) these orders cannot be sustained. Further more, I find that the pay fixation is sought to be made with effect from 2005 such pay fixation and correction is certainly not justified in the light of the Government Order, 2007 and the judgment of Supreme Courts. Relevant part of the judgment of the Supreme Court in the case of Rafiq Masih (supra ) is reproduced hereunder: "12. 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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from 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."
Decision
6. In view of the above, the orders impugned passed against the petitioners for correction of pay fixation and recovery dated 17.09.2021 and 23.09.2022 are held to be unsustainable are deserved to be quashed. Petitioners are accordingly held to be entitled for recovered amount along with interest which is quantified at the rate of 8% . 7. In view of the above writ petition succeeds and is allowed. The orders dated 17.09.2021 and 23.09.2022 and consequential recovery orders are hereby quashed. 8. The authorities are directed to re-fix the pension as per the salary of the petitioners which the petitioners were drawing at the time of retirement ignoring the correction orders which has been quashed hereinabove and appropriate decisions in this regard shall be taken within a maximum period of two months and appropriate pension shall be paid to them along with difference of pensions for the deduction made on account of orders impugned and the actual payment made. The petitioners shall also be refunded their recovered amount along with interest at the rate of 8% within the same period. It is further provided that in the event refund is not paid and pension is not corrected and arrears of difference are not paid within time frame prescribed above, petitioner would be entitled to a further interest @ 12 % from the date of expiry of two months till actual payment is made. Order Date :- 1.7.2025 Nadeem Digitally signed by :- NADEEM AHMAD High Court of Judicature at Allahabad