High Court · 2025

Petitioner :- Ashok Kumar Singh And 3 Others Respondent :- State Of Up And 4 Others Counsel for Petitioner :- Arvind Srivastava Iii,Pratik Kumar Counsel for Respondent :- C.S.C. Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Arvind Srivastava III, learned counsel for petitioners and Sri Ashish Kumar Singh Nagvanshi, learned A.C.S.C. for State.

2. This is second round of litigation. Petitioner has earlier approached this Court by way of filing Writ Petition bearing No. 14717 of 2021 , which was disposed of by following order dated 07.11.2023 :- "1. Heard learned counsel for the parties.

2. By means of this petition filed under Article 226 of the Constitution of India, petitioners have prayed for quashing of the order dated 16.09.2021 in so far as it directs for recovery for the excess payment made to the petitioners on account of wrong pay fixation done in the year 2005 and consequently he was paid excess payment with effect from 01.04.2005.

3. Learned counsel for the petitioners had submitted that a representation was made on 16.06.2004 and reminder thereof made on 22.09.2004 but by no stretch of imagination their letter can be construed as latters misleading the authorities. He had made a simple request that he may be paid higher pay scale of Rs.6500-10500/- as identically placed persons were being paid. Petitioners did possessed requisite qualification and therefore, were entitled to such payscale.

4. Learned counsel for the petitioners submit that the petitioners are confining his prayer as against the order impugned to the extent of recovery. So far as the corrected pay fixation is concerned that may be carried out.

5. Per contra, learned Standing Counsel has defended the order for the reasons assigned therein.

6. Having heard learned counsel for the parties and their arguments raised across the bar, I find that in the case of State of Punjab & Others v. Rafiq Masih (White Washer) etc., (2015) 4 SCC 334 the Supreme Court very categorically held that in the case of Group - C and Group - D employees the recovery shall not be made from the excess amount. Still further those who have retired as such, no recovery can be pursued. In the case of Rafiq Masih (supra) the Supreme Court has observed thus: "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 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." (Emphasis added)

7. Admittedly, the petitioners' commutation of pension amount has been subjected to recovery in the teeth of the law laid down by the Supreme Court which has been recently followed in the case of Thomas Daniel v. State of Kerala & Ors, AIR 2022 SC 2153.

7. In view of the above the order dated 16.09.2021 is hereby set aside to the extent it directs for recovery.

8. Thus writ petition stands allowed and liberty rests with the petitioner to apply for parity of pay in terms of higher pay scale, if he is entitled from hence onwards by means of representation and if any such representation is made, same shall be disposed of by the competent authority in the matter in accordance with law.

9. It is made clear that any enhancement will be only prospective from the date if it is allowed. "

3. In pursuance of above order, the impugned order dated 15.03.2024 was passed which is under challenge in present writ petition.

4. Learned counsel for petitioner submits that this Court has passed following order on 08.07.2024 :- "The petitioner is a Social Worker, a post that is held with the Institute of Mental Health and Hospital, Agra. By the impugned order dated 28.09.2021, the petitioner's salary has been reduced from the Pay- scale of Rs. 6500-10500 to Rs. 4500-7000. The petitioner further challenges an order dated 15.03.2024 rejecting his representation against the said order. The petitioner relies upon a Government Order dated 04.04.2012, which provides for revision of pay-scales to the employees of Institute of Mental Health etc. Admit. Issue notice. Notice on behalf of all the respondents is accepted by Mr. Sharad Chandra Upadhyay, learned Standing Counsel. He is granted three weeks' time to file a counter affidavit. List for orders on 30.07.2024 along with a report regarding status of pleadings. Let this order be communicated to the Commissioner/Chairman, Committee of Management of Institute of Medical Health and Hospital, Agra, the Director, Institute of Medical Health and Hospital, Agra, the Medical Superintendent, Institute of Medical Health and Hospital, Agra and the Deputy Director, Local Fund and Audit Department, Block No. 3, Jaipur House, Agra through the Civil Judge (Senior Division), Agra by the Registrar (Compliance) within 24 hours. "

5. Learned counsel for petitioner submits that reason assigned in impugned order that since G.O. dated 04.04.2012 was not issued by medical health department, therefore, it could not be adopted by Institute of Mental Health and Hospital, Agra is erroneous since such differentiation cannot be raised as the said G.O. applicable to explain every institution. He further submits that there is no counter affidavit is filed on behalf of Secretary of said department.

6. Learned A.C.S.C. for State submits that counter affidavit is filed on behalf of respondent Nos.2 to 4 and they have reiterated stand mentioned in the impugned order.

7. In the present case, the benefit of G.O. dated 04.04.2012 was denied only on ground that it was not issued by medical and health department of State of U.P. and since there is no counter affidavit on their behalf, therefore, this writ petition is disposed of with the direction that Principal Secretary (Medical and Health), Government of U.P. at Lucknow will consider the G.O. dated 04.04.2012, so far as institute and medical health are concerned and by way of a reasoned order and said exercise shall be concluded within 4 weeks from today and its legal consequence shall follow.

8. A copy of this order will communicate to all petitioners.

9. It is also necessary to observe that impugned order will not come in the way for taking a reasoned decision. So far as recovery is concerned that has already been set aside by the impugned order. Order Date :- 17.4.2025 P. Pandey PUSHPENDRA PANDEY High Court of Judicature at Allahabad

Petitioner :- Ashok Kumar Singh And 3 Others Respondent :- State Of Up And 4 Others Counsel for Petitioner :- Arvind Srivastava Iii,Pratik Kumar Counsel for Respondent :- C.S.C. Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Arvind Srivastava III, learned counsel for petitioners and Sri Ashish Kumar Singh Nagvanshi, learned A.C.S.C. for State.

2. This is second round of litigation. Petitioner has earlier approached this Court by way of filing Writ Petition bearing No. 14717 of 2021 , which was disposed of by following order dated 07.11.2023 :- "1. Heard learned counsel for the parties.

2. By means of this petition filed under Article 226 of the Constitution of India, petitioners have prayed for quashing of the order dated 16.09.2021 in so far as it directs for recovery for the excess payment made to the petitioners on account of wrong pay fixation done in the year 2005 and consequently he was paid excess payment with effect from 01.04.2005.

3. Learned counsel for the petitioners had submitted that a representation was made on 16.06.2004 and reminder thereof made on 22.09.2004 but by no stretch of imagination their letter can be construed as latters misleading the authorities. He had made a simple request that he may be paid higher pay scale of Rs.6500-10500/- as identically placed persons were being paid. Petitioners did possessed requisite qualification and therefore, were entitled to such payscale.

4. Learned counsel for the petitioners submit that the petitioners are confining his prayer as against the order impugned to the extent of recovery. So far as the corrected pay fixation is concerned that may be carried out.

5. Per contra, learned Standing Counsel has defended the order for the reasons assigned therein.

6. Having heard learned counsel for the parties and their arguments raised across the bar, I find that in the case of State of Punjab & Others v. Rafiq Masih (White Washer) etc., (2015) 4 SCC 334 the Supreme Court very categorically held that in the case of Group - C and Group - D employees the recovery shall not be made from the excess amount. Still further those who have retired as such, no recovery can be pursued. In the case of Rafiq Masih (supra) the Supreme Court has observed thus: "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 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." (Emphasis added)

7. Admittedly, the petitioners' commutation of pension amount has been subjected to recovery in the teeth of the law laid down by the Supreme Court which has been recently followed in the case of Thomas Daniel v. State of Kerala & Ors, AIR 2022 SC 2153.

7. In view of the above the order dated 16.09.2021 is hereby set aside to the extent it directs for recovery.

8. Thus writ petition stands allowed and liberty rests with the petitioner to apply for parity of pay in terms of higher pay scale, if he is entitled from hence onwards by means of representation and if any such representation is made, same shall be disposed of by the competent authority in the matter in accordance with law.

9. It is made clear that any enhancement will be only prospective from the date if it is allowed. "

3. In pursuance of above order, the impugned order dated 15.03.2024 was passed which is under challenge in present writ petition.

4. Learned counsel for petitioner submits that this Court has passed following order on 08.07.2024 :- "The petitioner is a Social Worker, a post that is held with the Institute of Mental Health and Hospital, Agra. By the impugned order dated 28.09.2021, the petitioner's salary has been reduced from the Pay- scale of Rs. 6500-10500 to Rs. 4500-7000. The petitioner further challenges an order dated 15.03.2024 rejecting his representation against the said order. The petitioner relies upon a Government Order dated 04.04.2012, which provides for revision of pay-scales to the employees of Institute of Mental Health etc. Admit. Issue notice. Notice on behalf of all the respondents is accepted by Mr. Sharad Chandra Upadhyay, learned Standing Counsel. He is granted three weeks' time to file a counter affidavit. List for orders on 30.07.2024 along with a report regarding status of pleadings. Let this order be communicated to the Commissioner/Chairman, Committee of Management of Institute of Medical Health and Hospital, Agra, the Director, Institute of Medical Health and Hospital, Agra, the Medical Superintendent, Institute of Medical Health and Hospital, Agra and the Deputy Director, Local Fund and Audit Department, Block No. 3, Jaipur House, Agra through the Civil Judge (Senior Division), Agra by the Registrar (Compliance) within 24 hours. "

5. Learned counsel for petitioner submits that reason assigned in impugned order that since G.O. dated 04.04.2012 was not issued by medical health department, therefore, it could not be adopted by Institute of Mental Health and Hospital, Agra is erroneous since such differentiation cannot be raised as the said G.O. applicable to explain every institution. He further submits that there is no counter affidavit is filed on behalf of Secretary of said department.

6. Learned A.C.S.C. for State submits that counter affidavit is filed on behalf of respondent Nos.2 to 4 and they have reiterated stand mentioned in the impugned order.

7. In the present case, the benefit of G.O. dated 04.04.2012 was denied only on ground that it was not issued by medical and health department of State of U.P. and since there is no counter affidavit on their behalf, therefore, this writ petition is disposed of with the direction that Principal Secretary (Medical and Health), Government of U.P. at Lucknow will consider the G.O. dated 04.04.2012, so far as institute and medical health are concerned and by way of a reasoned order and said exercise shall be concluded within 4 weeks from today and its legal consequence shall follow.

8. A copy of this order will communicate to all petitioners.

9. It is also necessary to observe that impugned order will not come in the way for taking a reasoned decision. So far as recovery is concerned that has already been set aside by the impugned order. Order Date :- 17.4.2025 P. Pandey PUSHPENDRA PANDEY High Court of Judicature at Allahabad