Supreme Court · 2025

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."

7. Counter affidavit has been filed in the matter by the respondents and it is stated in paragraph 22 that pension paper of the petitioner has been forwarded to the Finance Controller and audit team raised objection with regard to the wrong pay scale of the petitioner vide its letter dated 21.04.2023 and the pay scale of the petitioner has been corrected in accordance with law.

8. Thus, it is not denied that petitioner was not responsible in any manner for alleged wrongful pay fixation and so the judgment of High Court of Punjab and Haryana & others v. Jagdev Singh 2016 (14) SCC 267 will not be applicable, in which it was held that the principle enunciated in Proposition (ii) above cannot apply to a situation where an undertaking was given by an employee at the time of pay fixation to refund for wrong fixation, if detected later. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.

9. One more stand has been taken by learned Standing Counsel that since the petitioner has given undertaking at the time of retirement that if any excess amount is paid they would refunding the same.

10. In my considered view, this would not apply to attract the judgment of Supreme Court in the case of Jagdev Singh (supra). What has been held in the case of Jagdev Singh (supra) and what has been genuine also that undertaking should have been furnished by employee at the time of pay-fixation. This is not a case in hand. Any employee if has furnished any undertaking at the time of retirement that he would be refunding the excess amount, this undertaking is to be taken only in respect of any wrongful computation of pension amount as per the last pay drawn and also the computation amount and calculation of other post retirement dues.

11. Such an undertaking cannot be read to mean that employee intended an exercise of re-fixation to be undertaken against him from a back date and that too without notice to him and to further invite resultant recovery due to assessment of excess salary on account of such alleged wrongful pay-fixation.

12. Thus any declaration at the time of retirement would not amount to a declaration within the meaning of the judgment of Supreme Court in the case of Jagdev Singh (supra).

13. It is further observed that any option if exercised on a printed format by an employee while exercising the option, and if he did not make particularly any misrepresentation by moving a separate application, such an exercise of option was if approved by the authority, then it is the approving authority who is to be blamed for such pay fixation. Besides this if option is exercised much before the age of superannuation and the error is not detected for the fault of the authority for a considerably long period of time, then the beneficiary cannot be blamed and under the Government order dated 16th January, 2007, no re-fixation can be directed beyond a period of 34 months back from the date of retirement. This Government order has further been interpreted in the judgment of this Court in the case of Sushil Kumar Singhal v. Pramukh Sachiv Irrigation Department and others, 2014 (16) SCC 444, in which vide paragraph 11 the Supreme Court has held thus: "11. The submission made on behalf of the learned counsel appearing for the respondent that the appellant would be getting more amount than what he was entitled to cannot be accepted in view of the policy laid down by the Government in G.O. dated 16th January, 2007. If the Government feels that mistakes are committed very often, it would be open to the Government to change its policy but as far as the G.O. dated 16th January, 2007 is in force, the respondent-employer could not have passed any order for recovery of the excess salary paid to the appellant or for reducing pension of the appellant."

14. In view of the above, therefore, the action by the respondents based upon any declaration made by the employee at the time of re-fixation by choosing an option, would not give any license or certificate to the respondents to rectify the error in pay fixation at the time of retirement and to pass order for consequential recovery.

15. Now, looking to the judgment in the case of Rafiq Masih (supra) where such recovery has been held to be absolutely barred from the retiral dues of the Class III and Class IV employees (Group- C and Group -D category), the orders impugned in writ petitions are held unsustainable.

16. In view of the above, the impugned order of recovery dated

16.06.2023 is hereby quashed. The writ petition is allowed.

17. Since ignorance of law is no excuse and once the Supreme Court has given judgment in the case of Rafiq Masih (supra) followed in the case of Thomus Denial (supra), the State respondents cannot justify the action of recovery and hence the petitioner is entitled for refund of money along with interest which is assessed to be 8%.

18. Let the entire amount recovered from the petitioner pursuant to the order impugned dated 16.06.2023 be refunded to him along with interest at the rate of 8% within a maximum period of two months from the date of production of certified copy of this order. 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 IRFAN UDDIN SIDDIKI High Court of Judicature at Allahabad

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."

7. Counter affidavit has been filed in the matter by the respondents and it is stated in paragraph 22 that pension paper of the petitioner has been forwarded to the Finance Controller and audit team raised objection with regard to the wrong pay scale of the petitioner vide its letter dated 21.04.2023 and the pay scale of the petitioner has been corrected in accordance with law.

8. Thus, it is not denied that petitioner was not responsible in any manner for alleged wrongful pay fixation and so the judgment of High Court of Punjab and Haryana & others v. Jagdev Singh 2016 (14) SCC 267 will not be applicable, in which it was held that the principle enunciated in Proposition (ii) above cannot apply to a situation where an undertaking was given by an employee at the time of pay fixation to refund for wrong fixation, if detected later. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.

9. One more stand has been taken by learned Standing Counsel that since the petitioner has given undertaking at the time of retirement that if any excess amount is paid they would refunding the same.

10. In my considered view, this would not apply to attract the judgment of Supreme Court in the case of Jagdev Singh (supra). What has been held in the case of Jagdev Singh (supra) and what has been genuine also that undertaking should have been furnished by employee at the time of pay-fixation. This is not a case in hand. Any employee if has furnished any undertaking at the time of retirement that he would be refunding the excess amount, this undertaking is to be taken only in respect of any wrongful computation of pension amount as per the last pay drawn and also the computation amount and calculation of other post retirement dues.

11. Such an undertaking cannot be read to mean that employee intended an exercise of re-fixation to be undertaken against him from a back date and that too without notice to him and to further invite resultant recovery due to assessment of excess salary on account of such alleged wrongful pay-fixation.

12. Thus any declaration at the time of retirement would not amount to a declaration within the meaning of the judgment of Supreme Court in the case of Jagdev Singh (supra).

13. It is further observed that any option if exercised on a printed format by an employee while exercising the option, and if he did not make particularly any misrepresentation by moving a separate application, such an exercise of option was if approved by the authority, then it is the approving authority who is to be blamed for such pay fixation. Besides this if option is exercised much before the age of superannuation and the error is not detected for the fault of the authority for a considerably long period of time, then the beneficiary cannot be blamed and under the Government order dated 16th January, 2007, no re-fixation can be directed beyond a period of 34 months back from the date of retirement. This Government order has further been interpreted in the judgment of this Court in the case of Sushil Kumar Singhal v. Pramukh Sachiv Irrigation Department and others, 2014 (16) SCC 444, in which vide paragraph 11 the Supreme Court has held thus: "11. The submission made on behalf of the learned counsel appearing for the respondent that the appellant would be getting more amount than what he was entitled to cannot be accepted in view of the policy laid down by the Government in G.O. dated 16th January, 2007. If the Government feels that mistakes are committed very often, it would be open to the Government to change its policy but as far as the G.O. dated 16th January, 2007 is in force, the respondent-employer could not have passed any order for recovery of the excess salary paid to the appellant or for reducing pension of the appellant."

14. In view of the above, therefore, the action by the respondents based upon any declaration made by the employee at the time of re-fixation by choosing an option, would not give any license or certificate to the respondents to rectify the error in pay fixation at the time of retirement and to pass order for consequential recovery.

15. Now, looking to the judgment in the case of Rafiq Masih (supra) where such recovery has been held to be absolutely barred from the retiral dues of the Class III and Class IV employees (Group- C and Group -D category), the orders impugned in writ petitions are held unsustainable.

16. In view of the above, the impugned order of recovery dated

16.06.2023 is hereby quashed. The writ petition is allowed.

17. Since ignorance of law is no excuse and once the Supreme Court has given judgment in the case of Rafiq Masih (supra) followed in the case of Thomus Denial (supra), the State respondents cannot justify the action of recovery and hence the petitioner is entitled for refund of money along with interest which is assessed to be 8%.

18. Let the entire amount recovered from the petitioner pursuant to the order impugned dated 16.06.2023 be refunded to him along with interest at the rate of 8% within a maximum period of two months from the date of production of certified copy of this order. 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 IRFAN UDDIN SIDDIKI High Court of Judicature at Allahabad