Sanjay Kumar Saxena vs State Of U.P. Thru. Addl. Chief Secy. /Prin. Secy.

1. Heard Sri Vijay Shankar Tripathi, learned counsel for petitioner and learned State counsel for all opposite parties.

2. Counter affidavit filed by learned State counsel today is taken on record.

3. This writ petition has been filed challenging orders dated 23.3.2023 and

30.8.2024 whereby petitioner's pay scale has been re-fixed indicating that it was granted incorrectly. Recovery has also been directed to be initiated in pursuance thereof.

4. It has been submitted by learned counsel for petitioner that petitioner superannuated on 31.3.2020 whereafter orders were passed regarding alleged correction in pay fixation and deducting the alleged excess payment made therein. The said order was challenged by petitioner in Writ-A No. 8146 of 2022, which was allowed by means of judgement and order dated 5.12.2022 quashing the orders impugned therein and granting liberty to opposite parties to pass fresh orders after affording opportunity of hearing to petitioner.

5. It has further been submitted that in pursuance thereof, the impugned order has been passed again indicating incorrect fixation of pay scale of petitioner w.e.f. 1.1.1998 and 3.5.2007. It is submitted that opposite parties by means of impugned orders have sought to withdraw benefits, 2 WRIA No. 8903 of 2024 which were made available to petitioner almost 27 years ago and that too after his superannuation. It is also submitted that although a deduction of approximately rupees eleven lacs was made from pensionary benefit of petitioner, the same has subsequently been refunded.

6. The aspect remaining for determination is whether opposite parties could have passed impugned order refixing pay scale of petitioner after having granted the same 27 years ago.

7. With regard to said aspect, the State Government itself has issued order dated 16.1.2007 clearly indicating the aspect that no such refixation of pay scale or recovery thereof can be made after more than 34 months prior to the date of superannuation of an employee.

8. The said aspect has also been considered by Hon'ble Supreme Court in the case of Jagdish Prasad Singh Vs. State of Bihar and others (2024) 8 SCR 377 in the following manner: "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 others1, 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 of excess payment of 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 3 WRIA No. 8903 of 2024 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 Others2, held as under: - “108. We may give an example from service jurisprudence, where a principle of equity is frequently invoked to give relief 4 WRIA No. 8903 of 2024 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. Rafix Masih (White Washer) and others3, 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, 5 WRIA No. 8903 of 2024 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 Others4, 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.

26. The learned Single Judge as well as the Division Bench of the High Court of Patna also seem to have fallen in the same error. In addition thereto, we are of the view that any step of reduction in the pay scale and recovery from a Government employee would tantamount to a punitive action because the same has drastic civil as well as evil consequences. Thus, no such action could have been taken against the appellant, more particularly, because he 4 2022 SCC OnLine SC 536 had been promoted as an ADSO, while drawing the pay scale of Rs.6500-10500 applicable to the post, way back on 10th March, 1991 and had also superannuated eight years ago before the recovery notice dated 15th April, 2009 was issued. The impugned action directing reduction of pay scale and recovery of the excess amount is grossly arbitrary and illegal and also suffers from the vice of non-adherence to the principles of natural justice and hence, the same cannot be sustained."

9. Upon applicability of the aforesaid judgement in the present case and considering the facts and circumstances of this case, it is quite evident that re-fixation of pay scale, therefore, is clearly against verdict of Hon'ble Supreme Court in the case of Jagdish Prasad Singh (supra) not to mention the Government order dated 16.1.2007. 6 WRIA No. 8903 of 2024

10. In view thereof, the impugned orders dated 23.3.2023 and 30.8.2024 are hereby quashed by issuance of a writ in the nature of certiorari. A further writ in the nature of mandamus is issued commanding opposite parties to make payment of pensionary benefits of petitioner taking into account the earlier pay scale, which was made admissible to petitioner vide orders dated 1.1.1998 and 3.5.2007.

11. Liberty is granted to petitioner to file a fresh representation before the concerned authority seeking interest on the amount, which was deducted and subsequently refunded. Decision with regard to the same shall be taken within a period of six weeks from the date of production of a certified copy of the judgement is served upon the concerned authority.

12. Resultantly, writ petition succeeds and is allowed. Parties to bear their own costs. September 8, 2025 AKK (Manish Mathur,J.) AMIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Sri Vijay Shankar Tripathi, learned counsel for petitioner and learned State counsel for all opposite parties.

2. Counter affidavit filed by learned State counsel today is taken on record.

3. This writ petition has been filed challenging orders dated 23.3.2023 and

30.8.2024 whereby petitioner's pay scale has been re-fixed indicating that it was granted incorrectly. Recovery has also been directed to be initiated in pursuance thereof.

4. It has been submitted by learned counsel for petitioner that petitioner superannuated on 31.3.2020 whereafter orders were passed regarding alleged correction in pay fixation and deducting the alleged excess payment made therein. The said order was challenged by petitioner in Writ-A No. 8146 of 2022, which was allowed by means of judgement and order dated 5.12.2022 quashing the orders impugned therein and granting liberty to opposite parties to pass fresh orders after affording opportunity of hearing to petitioner.

5. It has further been submitted that in pursuance thereof, the impugned order has been passed again indicating incorrect fixation of pay scale of petitioner w.e.f. 1.1.1998 and 3.5.2007. It is submitted that opposite parties by means of impugned orders have sought to withdraw benefits, 2 WRIA No. 8903 of 2024 which were made available to petitioner almost 27 years ago and that too after his superannuation. It is also submitted that although a deduction of approximately rupees eleven lacs was made from pensionary benefit of petitioner, the same has subsequently been refunded.

6. The aspect remaining for determination is whether opposite parties could have passed impugned order refixing pay scale of petitioner after having granted the same 27 years ago.

7. With regard to said aspect, the State Government itself has issued order dated 16.1.2007 clearly indicating the aspect that no such refixation of pay scale or recovery thereof can be made after more than 34 months prior to the date of superannuation of an employee.

8. The said aspect has also been considered by Hon'ble Supreme Court in the case of Jagdish Prasad Singh Vs. State of Bihar and others (2024) 8 SCR 377 in the following manner: "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 others1, 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 of excess payment of 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 3 WRIA No. 8903 of 2024 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 Others2, held as under: - “108. We may give an example from service jurisprudence, where a principle of equity is frequently invoked to give relief 4 WRIA No. 8903 of 2024 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. Rafix Masih (White Washer) and others3, 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, 5 WRIA No. 8903 of 2024 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 Others4, 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.

26. The learned Single Judge as well as the Division Bench of the High Court of Patna also seem to have fallen in the same error. In addition thereto, we are of the view that any step of reduction in the pay scale and recovery from a Government employee would tantamount to a punitive action because the same has drastic civil as well as evil consequences. Thus, no such action could have been taken against the appellant, more particularly, because he 4 2022 SCC OnLine SC 536 had been promoted as an ADSO, while drawing the pay scale of Rs.6500-10500 applicable to the post, way back on 10th March, 1991 and had also superannuated eight years ago before the recovery notice dated 15th April, 2009 was issued. The impugned action directing reduction of pay scale and recovery of the excess amount is grossly arbitrary and illegal and also suffers from the vice of non-adherence to the principles of natural justice and hence, the same cannot be sustained."

9. Upon applicability of the aforesaid judgement in the present case and considering the facts and circumstances of this case, it is quite evident that re-fixation of pay scale, therefore, is clearly against verdict of Hon'ble Supreme Court in the case of Jagdish Prasad Singh (supra) not to mention the Government order dated 16.1.2007. 6 WRIA No. 8903 of 2024

10. In view thereof, the impugned orders dated 23.3.2023 and 30.8.2024 are hereby quashed by issuance of a writ in the nature of certiorari. A further writ in the nature of mandamus is issued commanding opposite parties to make payment of pensionary benefits of petitioner taking into account the earlier pay scale, which was made admissible to petitioner vide orders dated 1.1.1998 and 3.5.2007.

11. Liberty is granted to petitioner to file a fresh representation before the concerned authority seeking interest on the amount, which was deducted and subsequently refunded. Decision with regard to the same shall be taken within a period of six weeks from the date of production of a certified copy of the judgement is served upon the concerned authority.

12. Resultantly, writ petition succeeds and is allowed. Parties to bear their own costs. September 8, 2025 AKK (Manish Mathur,J.) AMIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench