High Court · 2025

order dated 03.02.2022 has submitted that firstly, no opportunity of hearing was granted to the petitioner before passing of the said order. It was stated that once a financial benefit was granted to the petitioner, he was protected under Article 300-A of the Constitution of India and the said benefit sought to be withdrawn by the respondents, they should have followed the procedure of law and most specifically principle of nature justice and withdrawing the benefit granted to the petitioner before an affording an opportunity is clearly illegal and arbitrary and deserves to be set aside. He has further submitted that even if it is assumed that the benefit was wrongly granted to the petitioner, the petitioner is protected by the judgment of the Supreme Court in the case of State of Punjab and others versus Rafiq Masih (White Washer) and others reported in 2015 (4) SCC 334, where it has been held that recovery from the employees belonging to the Class -3 and Class-4 service of Group – C and D service would be impermissible even if in case it is found that the beneficiaries were receiving emoluments that they were due to him. Lastly, it has been stated that even though some undertaking was given by the petitioner under compulsion when the benefit of the same cannot be taken by the respondents especially considering the provisions of the Government Order dated 21.11.2016 where prior to receiving of the undertaking, the responsible officer, who has approved or sanctioned the emoluments paid to the government servant, should endorse that all the government orders and rules have been carefully examined and it has been found that such government servant is entitled for such emoluments and only thereafter any undertaking given by government servant would be valid and binding and he would be liable to refund the benefit received by him in terms of the undertaking granted by him. He submits that the government servants are coerced into granting of such undertakings and considering the fact that they are in no position to bargain with the state, they are forced to sign on adopted lines before financial benefits are made admissible to them. Such undertakings without complying the mandatory provisions of the government order dated 21.11.2016 and specifically any statement of the respondents that they have carefully examined all the government orders and found the government servants to be entitled to financial benefits and only after such a statement is made by the competent authority, can undertakings be taken from the government servant who would be the beneficiaries of the financial benefits, failing which such undertaking would be rendered non est in the eyes of law and cannot be implemented by the respondents.

5. Learned Standing Counsel, on the other hand, has opposed the writ petition. It has been submitted that prior to the attaining of the age of superannuation by the petitioner, his service book and all the other records were duly examined and thus found that the pay fixation of the petitioner has been wrongly done contrary to the provisions of the Government Order dated 29.09.2020 and the matter was also duly examined by the Finance Controller.

6. Learned Standing Counsel has further submitted that the petitioner has given a consent / undertaking on 14.03.2022 to the effect that if the payment made to the petitioner is found to be in excess either in the form of Time Scale/ACP or under any other Head, the same would be recoverable amount due to the petitioner after making adjustment from the dues payable to the petitioner. The said undertaking was given, was obtained by the respondents just prior to his superannuation where the question of sanction of his post retiral due was pending with the respondents. There is no dispute with regard to the fact that in 2009 when the benefit was granted to the petitioner, no undertaking was given to him and it is only on the strength of the undertaking given by the petitioner on 14.03.2022, the respondents have sought to recover the excess amount paid to him.

7. I have heard the rival contentions and perused the record.

8. When the petitioner was working on the post of Pharmacist, it was found that the persons, junior to the petitioner, are getting higher salary than the petitioner and make necessary corrections, the respondents refixed the salary of the petitioner making at par with his juniors and appropriate order in this regard was passed on 13.04.2009 and 01.07.2011. At the time when the said order was passed, the said benefit was extended in light of the Government Order dated

05.11.2014. It seems that subsequently, various clarifications to the Government Order dated 05.11.2014 was issued on 29.09.2020 where according to the clarification, such a benefit was not to be given in the peculiar circumstances of the petitioner and accordingly, at the time of his superannuation, the Government Order dated 29.09.2020 was noticed by the respondents which led to passing of the impugned order holding that the petitioner was not entitled for the benefit granted to him and accordingly, the excess amount paid to him was sought to be recovered.

9. We have also perused the copy of the Government Order dated

29.09.2020 and we find that the clarification clearly applies prospectively and peculiar circumstances, situations have been clarified where the benefit of higher pay scale would not be admissible to a senior even though he is getting lesser emoluments than what his junior is receiving. The benefit was extended to the petitioner interpreting and considering the case of the petitioner in light of the Government Order dated 05.11.2014 and the case of the petitioner would not be covered under the Government Order dated

29.09.2020 and accordingly such interpretation taken by the respondents for cancelling the previous orders dated 13.04.2009 and

01.07.2011.

10. Apart from the above, we have also gone through the contents of the Government Order dated 21.11.2016. The said Government Order was passed considering the directions of the Supreme Court in the case of State of Punjab and others versus Rafiq Masih (White Washer) and others reported in 2015 (4) SCC 334, where it became clear that any increments/ACP granted to the Government Servants especially belonging to the Class-3 and Class 4, cannot be recovered. One of the exception, which was carved by the Supreme Court in the said case was that in case, any undertaking has been taken by the Government Servants prior to grant of such financial benefit can be recovered by the government, in case, subsequently, it is found that he was not entitled to the Financial Upgradation or financial benefits extended to him. It is on this account, the Government Order was passed giving directions to all the concerned persons to obtain and undertaking from the Government Servants prior to extending any financial benefit. Clause 4 of the Government Order reads as under: " उपरर रककनरसकर पकप ववधधक परकमरर कक कम मम मरझक रह कहनक कक वनदकर हहआ हह वक ककवमरकक कक वकतन वनधकररण/ उनकक दकरक कक आगणन मम ववरकष सकवधकनन अपनकरन जकर तथक उनकक भरगतकन कक पपवर समबननधत ककवमरक सक इस आरर कक सहमवत/ अणडरटकवकक ग सकलग पकरप पर आवशरक रप सक पकप कर लन जकर वक रवद तरवटपपणर वकतन वनधकररण/ आगणन कक फलसवरप दकरतक सक अधधक भरगतकन हह जकतक हह तह व उसकक समकरहजन/ वसपलन करकरमगक।".

11. A perusal of the aforesaid provisions clearly indicates that when computation of the financial benefit is undertaken after carefully examining the various rules, regulations and eligibility of the government servants only then the same should be made payable to him and an undertaking should be also received to the effect that in case the pay fixation of financial benefit extended to him would subsequently be found to be faulty, the excess amount given to him would be recovered. The aforesaid government order clearly indicates that a duty has been caste upon all the authorities to personally carefully considered the eligibility of the government servant, who is to be extended any financial benefits in the form of increment/ACP etc. and only when he is duly found to be eligible then only undertaking should be received that in case the financial benefit has been given on basis of some erroneous interpretation, the same should be recovered. We have also taken into account the fact that the Class-3 and Class-4 employees are not drawing and Disbursing Authorities, it is only the competent authority which is tasked with fixing the salaries, considering their promotions and granting regular increments and other service benefits. It is their duty to take into account the various service rules and government orders at the time when they are considering the grant of such financial benefits to the government servants. Whenever an undertaken is obtained from a government servant, it is mandatory that it should be endorsed in the file or in the notice that the benefit has been granted to the government servant after considering the various government orders, rules and bye-laws which should be specifically endorsed prior to obtaining the undertaking. He shall undertaking to obtain without first complying the first part of the government order such undertaking would be useless and would not be liable to be utilized to recover the excess amount paid to the government servant. Accordingly, we have also considered the judgement of the Supreme Court in the case of Jagdish Prasad Singh versus State of Bihar and othersn [Civil Appeal No.1635 of 2013, decided on 08.08.2024]. According to para -21, a similar controversy was decided by the Hon'ble Supreme Court observing as under: "21. We firmly believe that any decision taken by the State Government to reduce an employee's pay scale and recover the excess amount cannot be applied retrospectively and that too after a long time gap. In the case of Syed Abdul Qadir and others v. State of Bihar and others reported in (2009) 3 SCC 475, this Court held that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. The relevant paras of the Syed Abdul Qadir (Supra) are extracted hereinbelow: - "57. This Court, in a catena of decisions, has granted relief against recovery excess payment emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.

58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess.

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." (emphasis supplied)

22. Similarly, this Court in ITC Limited v. State of Uttar Pradesh and others, reported in (2011) 7 SCC 493 held as under: - "108. We may give an example from service jurisprudence, where a principle of equity is frequently invoked to give relief to an employee in somewhat similar circumstances. Where the pay or other emoluments due to an employee is determined and paid by the employer, and subsequently the employer finds, (usually on audit verification) that on account of wrong understanding of the applicable rules by the officers implementing the rules, excess payment is made, courts have recognised the need to give limited relief in regard to recovery of past excess payments, to reduce hardship to the innocent employees, who benefited from such wrong interpretation." (emphasis supplied)

23. In the case of State of Punjab and others v. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334, this Court held as under: - "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 order 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." (emphasis supplied)

24. Recently, this Court in Thomas Daniel v. State of Kerala and others reported in 2022 SCC Online SC 536, held that the State cannot recover excess amount paid to the ex-employee after the delay of 10 years.

25. The Government Resolution dated 8th February, 1999 to be specific, the highlighted portion supra is amenable to the interpretation that it protects the status and pay of those employees who had received their time bound promotions prior to 31st December, 1995. As a consequence, the Secretary concerned, while rejecting the representation clearly misinterpreted and misapplied the said Resolution to the detriment of the appellant."

12. We have also considered the judgement of a coordinate bench of this Court in case of Kapil dev Chaturvedi vesus State of U.P. [Writ Petition No.24022 of 2018, decided on 24.07.2020] where we find that this Court had duly considered the fact that whenever such undertakings are received, they are received under compelling circumstances and the government servant does not have any option except to succumb to the such pressures to overcome the penury conditions of a retired government servant inasmuch as he is totally depended upon the pension and post retiral dues.

13. Accordingly, considering the aforesaid facts, we find that after the retirement, a sword on chemical keeps hanging over the head of the government servants as a threat that if undertakings are not made, the pensionary benefits will not be released to them. The government servants do not have equal bargaining power and such inequality in bargaining power is the result of disparity and being in much litter position, they are coerced to submit their undertakings. Accordingly, considering the aforesaid, we find that in impugned order, there is no mentioned that the respondents had taken due care and diligence at the time when disparity in his salary was discovered and removed even the undertaking was received not at the time of grant of financial benefits but only prior to his superannuation on 14.03.2022. In any case, the undertaking given by the petitioner on 14.03.2022, will not hold good or ensure the State from incorrect fixation of salary of the petitioner in 2011.

14. Accordingly, for the aforesaid reasons, we find that there is no justification with the respondents to cancel the orders dated

13.04.2009 and 01.07.2011 and recovered the excess amount paid to the petitioner. We further find that according to Government Order dated 16.01.2007, the state has exempted its officers from making recovery with regard to excess payment made prior to 34 months.

15. In light of the aforesaid, the writ petition is allowed. The impugned orders dated 03.02.2022 and 05.04.2022 are quashed. The respondents are required to refund the amount of Rs.2,34,768/- along with interest @ 8% per annum since the date of recovery till the date of payment.

16. Let the money be paid to the petitioner expeditiously, say within a period of two months from the date a certified copy of the order is produced, failing which the respondents shall pay an interest @ 10% on the recovered amount. They shall also pass consequential order for refixation of the pension expeditiously within the same period of time. [Alok Mathur,J.] Order Date :- 10.3.2025 KR RABINDRA KUMAR High Court of Judicature at Allahabad, Lucknow Bench

order dated 03.02.2022 has submitted that firstly, no opportunity of hearing was granted to the petitioner before passing of the said order. It was stated that once a financial benefit was granted to the petitioner, he was protected under Article 300-A of the Constitution of India and the said benefit sought to be withdrawn by the respondents, they should have followed the procedure of law and most specifically principle of nature justice and withdrawing the benefit granted to the petitioner before an affording an opportunity is clearly illegal and arbitrary and deserves to be set aside. He has further submitted that even if it is assumed that the benefit was wrongly granted to the petitioner, the petitioner is protected by the judgment of the Supreme Court in the case of State of Punjab and others versus Rafiq Masih (White Washer) and others reported in 2015 (4) SCC 334, where it has been held that recovery from the employees belonging to the Class -3 and Class-4 service of Group – C and D service would be impermissible even if in case it is found that the beneficiaries were receiving emoluments that they were due to him. Lastly, it has been stated that even though some undertaking was given by the petitioner under compulsion when the benefit of the same cannot be taken by the respondents especially considering the provisions of the Government Order dated 21.11.2016 where prior to receiving of the undertaking, the responsible officer, who has approved or sanctioned the emoluments paid to the government servant, should endorse that all the government orders and rules have been carefully examined and it has been found that such government servant is entitled for such emoluments and only thereafter any undertaking given by government servant would be valid and binding and he would be liable to refund the benefit received by him in terms of the undertaking granted by him. He submits that the government servants are coerced into granting of such undertakings and considering the fact that they are in no position to bargain with the state, they are forced to sign on adopted lines before financial benefits are made admissible to them. Such undertakings without complying the mandatory provisions of the government order dated 21.11.2016 and specifically any statement of the respondents that they have carefully examined all the government orders and found the government servants to be entitled to financial benefits and only after such a statement is made by the competent authority, can undertakings be taken from the government servant who would be the beneficiaries of the financial benefits, failing which such undertaking would be rendered non est in the eyes of law and cannot be implemented by the respondents.

5. Learned Standing Counsel, on the other hand, has opposed the writ petition. It has been submitted that prior to the attaining of the age of superannuation by the petitioner, his service book and all the other records were duly examined and thus found that the pay fixation of the petitioner has been wrongly done contrary to the provisions of the Government Order dated 29.09.2020 and the matter was also duly examined by the Finance Controller.

6. Learned Standing Counsel has further submitted that the petitioner has given a consent / undertaking on 14.03.2022 to the effect that if the payment made to the petitioner is found to be in excess either in the form of Time Scale/ACP or under any other Head, the same would be recoverable amount due to the petitioner after making adjustment from the dues payable to the petitioner. The said undertaking was given, was obtained by the respondents just prior to his superannuation where the question of sanction of his post retiral due was pending with the respondents. There is no dispute with regard to the fact that in 2009 when the benefit was granted to the petitioner, no undertaking was given to him and it is only on the strength of the undertaking given by the petitioner on 14.03.2022, the respondents have sought to recover the excess amount paid to him.

7. I have heard the rival contentions and perused the record.

8. When the petitioner was working on the post of Pharmacist, it was found that the persons, junior to the petitioner, are getting higher salary than the petitioner and make necessary corrections, the respondents refixed the salary of the petitioner making at par with his juniors and appropriate order in this regard was passed on 13.04.2009 and 01.07.2011. At the time when the said order was passed, the said benefit was extended in light of the Government Order dated

05.11.2014. It seems that subsequently, various clarifications to the Government Order dated 05.11.2014 was issued on 29.09.2020 where according to the clarification, such a benefit was not to be given in the peculiar circumstances of the petitioner and accordingly, at the time of his superannuation, the Government Order dated 29.09.2020 was noticed by the respondents which led to passing of the impugned order holding that the petitioner was not entitled for the benefit granted to him and accordingly, the excess amount paid to him was sought to be recovered.

9. We have also perused the copy of the Government Order dated

29.09.2020 and we find that the clarification clearly applies prospectively and peculiar circumstances, situations have been clarified where the benefit of higher pay scale would not be admissible to a senior even though he is getting lesser emoluments than what his junior is receiving. The benefit was extended to the petitioner interpreting and considering the case of the petitioner in light of the Government Order dated 05.11.2014 and the case of the petitioner would not be covered under the Government Order dated

29.09.2020 and accordingly such interpretation taken by the respondents for cancelling the previous orders dated 13.04.2009 and

01.07.2011.

10. Apart from the above, we have also gone through the contents of the Government Order dated 21.11.2016. The said Government Order was passed considering the directions of the Supreme Court in the case of State of Punjab and others versus Rafiq Masih (White Washer) and others reported in 2015 (4) SCC 334, where it became clear that any increments/ACP granted to the Government Servants especially belonging to the Class-3 and Class 4, cannot be recovered. One of the exception, which was carved by the Supreme Court in the said case was that in case, any undertaking has been taken by the Government Servants prior to grant of such financial benefit can be recovered by the government, in case, subsequently, it is found that he was not entitled to the Financial Upgradation or financial benefits extended to him. It is on this account, the Government Order was passed giving directions to all the concerned persons to obtain and undertaking from the Government Servants prior to extending any financial benefit. Clause 4 of the Government Order reads as under: " उपरर रककनरसकर पकप ववधधक परकमरर कक कम मम मरझक रह कहनक कक वनदकर हहआ हह वक ककवमरकक कक वकतन वनधकररण/ उनकक दकरक कक आगणन मम ववरकष सकवधकनन अपनकरन जकर तथक उनकक भरगतकन कक पपवर समबननधत ककवमरक सक इस आरर कक सहमवत/ अणडरटकवकक ग सकलग पकरप पर आवशरक रप सक पकप कर लन जकर वक रवद तरवटपपणर वकतन वनधकररण/ आगणन कक फलसवरप दकरतक सक अधधक भरगतकन हह जकतक हह तह व उसकक समकरहजन/ वसपलन करकरमगक।".

11. A perusal of the aforesaid provisions clearly indicates that when computation of the financial benefit is undertaken after carefully examining the various rules, regulations and eligibility of the government servants only then the same should be made payable to him and an undertaking should be also received to the effect that in case the pay fixation of financial benefit extended to him would subsequently be found to be faulty, the excess amount given to him would be recovered. The aforesaid government order clearly indicates that a duty has been caste upon all the authorities to personally carefully considered the eligibility of the government servant, who is to be extended any financial benefits in the form of increment/ACP etc. and only when he is duly found to be eligible then only undertaking should be received that in case the financial benefit has been given on basis of some erroneous interpretation, the same should be recovered. We have also taken into account the fact that the Class-3 and Class-4 employees are not drawing and Disbursing Authorities, it is only the competent authority which is tasked with fixing the salaries, considering their promotions and granting regular increments and other service benefits. It is their duty to take into account the various service rules and government orders at the time when they are considering the grant of such financial benefits to the government servants. Whenever an undertaken is obtained from a government servant, it is mandatory that it should be endorsed in the file or in the notice that the benefit has been granted to the government servant after considering the various government orders, rules and bye-laws which should be specifically endorsed prior to obtaining the undertaking. He shall undertaking to obtain without first complying the first part of the government order such undertaking would be useless and would not be liable to be utilized to recover the excess amount paid to the government servant. Accordingly, we have also considered the judgement of the Supreme Court in the case of Jagdish Prasad Singh versus State of Bihar and othersn [Civil Appeal No.1635 of 2013, decided on 08.08.2024]. According to para -21, a similar controversy was decided by the Hon'ble Supreme Court observing as under: "21. We firmly believe that any decision taken by the State Government to reduce an employee's pay scale and recover the excess amount cannot be applied retrospectively and that too after a long time gap. In the case of Syed Abdul Qadir and others v. State of Bihar and others reported in (2009) 3 SCC 475, this Court held that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. The relevant paras of the Syed Abdul Qadir (Supra) are extracted hereinbelow: - "57. This Court, in a catena of decisions, has granted relief against recovery excess payment emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.

58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess.

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." (emphasis supplied)

22. Similarly, this Court in ITC Limited v. State of Uttar Pradesh and others, reported in (2011) 7 SCC 493 held as under: - "108. We may give an example from service jurisprudence, where a principle of equity is frequently invoked to give relief to an employee in somewhat similar circumstances. Where the pay or other emoluments due to an employee is determined and paid by the employer, and subsequently the employer finds, (usually on audit verification) that on account of wrong understanding of the applicable rules by the officers implementing the rules, excess payment is made, courts have recognised the need to give limited relief in regard to recovery of past excess payments, to reduce hardship to the innocent employees, who benefited from such wrong interpretation." (emphasis supplied)

23. In the case of State of Punjab and others v. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334, this Court held as under: - "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 order 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." (emphasis supplied)

24. Recently, this Court in Thomas Daniel v. State of Kerala and others reported in 2022 SCC Online SC 536, held that the State cannot recover excess amount paid to the ex-employee after the delay of 10 years.

25. The Government Resolution dated 8th February, 1999 to be specific, the highlighted portion supra is amenable to the interpretation that it protects the status and pay of those employees who had received their time bound promotions prior to 31st December, 1995. As a consequence, the Secretary concerned, while rejecting the representation clearly misinterpreted and misapplied the said Resolution to the detriment of the appellant."

12. We have also considered the judgement of a coordinate bench of this Court in case of Kapil dev Chaturvedi vesus State of U.P. [Writ Petition No.24022 of 2018, decided on 24.07.2020] where we find that this Court had duly considered the fact that whenever such undertakings are received, they are received under compelling circumstances and the government servant does not have any option except to succumb to the such pressures to overcome the penury conditions of a retired government servant inasmuch as he is totally depended upon the pension and post retiral dues.

13. Accordingly, considering the aforesaid facts, we find that after the retirement, a sword on chemical keeps hanging over the head of the government servants as a threat that if undertakings are not made, the pensionary benefits will not be released to them. The government servants do not have equal bargaining power and such inequality in bargaining power is the result of disparity and being in much litter position, they are coerced to submit their undertakings. Accordingly, considering the aforesaid, we find that in impugned order, there is no mentioned that the respondents had taken due care and diligence at the time when disparity in his salary was discovered and removed even the undertaking was received not at the time of grant of financial benefits but only prior to his superannuation on 14.03.2022. In any case, the undertaking given by the petitioner on 14.03.2022, will not hold good or ensure the State from incorrect fixation of salary of the petitioner in 2011.

14. Accordingly, for the aforesaid reasons, we find that there is no justification with the respondents to cancel the orders dated

13.04.2009 and 01.07.2011 and recovered the excess amount paid to the petitioner. We further find that according to Government Order dated 16.01.2007, the state has exempted its officers from making recovery with regard to excess payment made prior to 34 months.

15. In light of the aforesaid, the writ petition is allowed. The impugned orders dated 03.02.2022 and 05.04.2022 are quashed. The respondents are required to refund the amount of Rs.2,34,768/- along with interest @ 8% per annum since the date of recovery till the date of payment.

16. Let the money be paid to the petitioner expeditiously, say within a period of two months from the date a certified copy of the order is produced, failing which the respondents shall pay an interest @ 10% on the recovered amount. They shall also pass consequential order for refixation of the pension expeditiously within the same period of time. [Alok Mathur,J.] Order Date :- 10.3.2025 KR RABINDRA KUMAR High Court of Judicature at Allahabad, Lucknow Bench