Jayanti Rai vs State Of U.P. Thru. Addl. Chief Secy. Deptt. Home

memo of the writ petition during course of the day. (Order in Writ Petition.)

1. Heard Sri Himanshu Singh, learned counsel for petitioner and learned Standing Counsel on behalf of the respondents.

2. The petitioner is approached this Court being aggrieved by the order dated 27.01.2021 passed by the opp. party No. 3/Commandent, 35th Vahini P.A.C., Lucknow, whereby an amount of Rs. 4,16,313/- has been deducted/recovered from the pension/gratuity of deceased husband of the petitioner.

3. It has been submitted by learned counsel for petitioner that husband of the petitioner was working on the post of Head Constable and had died on duty due to Covid-19 on 12.09.2020. After his death, while paying his dues to the petitioner Rs. 4,16,313/- has been deducted from the gratuity amount.

4. It has been submitted by learned counsel for the petitioner that there is serious error in the fixation of gratuity. 2 WRIA No. 12918 of 2025

5. Apart from the above, he submits that his case is squarely covered in the case of State of Punjab and others versus Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 334. It is stated that the petitioner being a Class-III employee, excess payment of his salary/gratuity could not have been recovered after his death. In paragraph no. 18 of the said judgment, the Court has observed 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 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."

6. He further submits that the petitioner falls in Class-III post and the recovery has been made from the payment made to him after his death, 3 WRIA No. 12918 of 2025 which is nearly 15 years prior to the date of his retirement.

7. He has further submitted that the there is no provision for participation of an employee in fixation of his pay and it cannot be said that the husband of the petitioner in any case was responsible for any fraud or collusion with regard to the fixation of his pay. He submits that in the light of the aforesaid judgment, no recovery can be made from the post- death dues of husband of the petitioner and accordingly the impugned order is illegal and arbitrary.

8. Learned Standing Counsel on the other hand has opposed the writ petition but could not dispute the facts of the present case.

9. Considering the argument raised by the petitioner that the ratio in the case of State of Punjab and others Vs. Rafiq Masih (supra) would not bind this Court. This Court is of the considered view that any direction under Article 142 of the Constitution of India has to pertain to the fact of the very case and as discussed by the Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others (supra), the extraordinary powers under Article 142 of the Constitution of India are vested with the Supreme Court to pass equitable orders for meeting the "ends of complete justice". It gives effect to the realist approach of jurisprudence and gives preference to the justice oriented approach of equity over strict rigors of law. While exercising the said power, the Supreme Court can mould the relief in a particular case as per the circumstances of the case. However, Article 136 is more of a corrective provision that provides the highest court of the land with an amplitude of jurisdiction to settle the law of the land and build a Precedent for the future. The same is considered as a "Declaration of law" as per Article 141 of the Constitution of India.

10. The paragraph no. 12 of the aforesaid judgment is quoted below for ready reference:- "12. Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute. It is a power that gives preference to equity over law. It 4 WRIA No. 12918 of 2025 is a justice-oriented approach as against the strict rigours of the law. The directions issued by the Court can normally be categorised into one, in the nature of moulding of relief and the other, as the declaration of law. "Declaration of law" as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the highest court of the land. This Court in India Vank v. ABS Marine Products (P) Ltd., Ram Pravesh Singh v. State of Bihar and in State of U.P. v. Neeraj Awasthi has expounded the principle and extolled the power of Article 142 of the Constitution of India to new heights by laying down that the directions issued under Article 142 do not constitute a bindin precedent unlike Article 141 of the Constitution of India. they are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Court has compartmentalised and differentiated the relief in the operative portion of the judgment by exercise of powers under Article 142 of the Constitution as against the law declared. The directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore, lose its basic premise of making it a binding precedent. This Court on the quivive has expended the horzons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the case."

11. In light of the aforesaid decision of the Supreme Court once we see the direction issued in paragraph no. 18 in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others (supra) we find that the directions are general in nature and are not restricted to the facts of the case which are being decided by the Supreme Court.

12. In light of the above, this Court is of the considered view that the said 5 WRIA No. 12918 of 2025 direction of the Supreme Court have been passed in exercise of power under Article 136 of the Constitution of India rather than under Article 142 of the Constitution of India and consequently, are binding precedent.

13. Apart from the above, this Court further notices that Supreme Court itself has been following a verdict in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others (supra), inasmuch as where judgment has been followed by the Supreme Court in the case of Thomas Daniel Vs. State of Kerala and others in Civil Appeal No. 7115 of 2010 decided on 02.05.2022 and also in the case of Jagdish Prasad Singh Vs. State of Bihar and others passed in Civil Appeal No(s) 1635 of 2013 decided on 08.08.2023 where the Supreme Court has relied upon the judgment of State of Punjab and others Vs. Rafiq Masih (White Washer) and others (supra) with approval. Accordingly, the said judgment has laid down binding precedent. Accordingly, it also applicable in the case of the petitioner.

14. In light of the above, this Court after examining the matter is of the considered view that issue raised in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others (supra) squarely applies to the facts of the present case, and accordingly the salary of a government employee is vested right cannot be recovered by the respondents in the manner as has been done, even with regard to the re- fixation of the salary, the same cannot be done without affording any adequate opportunity to the government servant.

15. In light of the above, the writ petition is allowed. Accordingly, the impugned order dated 27.01.2021 passed by the Commandent, 35th Vahini P.A.C., Lucknow is set aside.

16. The recovery so already made shall be paid back to the petitioner expeditiously say within a period of six weeks from the date a certified copy of this order is produced before the authority concerned.

17. We do not interfere with the order of fixation of salary inasmuch as the same has been passed after affording due opportunity of hearing to the petitioner. Liberty is given the to the petitioner to approach the appellate authority in case she is aggrieved by the order of re-fixation of salary, in 6 WRIA No. 12918 of 2025 case the appeal is filed within next four weeks, the same shall be considered and decided expeditiously. November 14, 2025 A.Nigam (Alok Mathur,J.) ANUJ NIGAM High Court of Judicature at Allahabad, Lucknow Bench

memo of the writ petition during course of the day. (Order in Writ Petition.)

1. Heard Sri Himanshu Singh, learned counsel for petitioner and learned Standing Counsel on behalf of the respondents.

2. The petitioner is approached this Court being aggrieved by the order dated 27.01.2021 passed by the opp. party No. 3/Commandent, 35th Vahini P.A.C., Lucknow, whereby an amount of Rs. 4,16,313/- has been deducted/recovered from the pension/gratuity of deceased husband of the petitioner.

3. It has been submitted by learned counsel for petitioner that husband of the petitioner was working on the post of Head Constable and had died on duty due to Covid-19 on 12.09.2020. After his death, while paying his dues to the petitioner Rs. 4,16,313/- has been deducted from the gratuity amount.

4. It has been submitted by learned counsel for the petitioner that there is serious error in the fixation of gratuity. 2 WRIA No. 12918 of 2025

5. Apart from the above, he submits that his case is squarely covered in the case of State of Punjab and others versus Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 334. It is stated that the petitioner being a Class-III employee, excess payment of his salary/gratuity could not have been recovered after his death. In paragraph no. 18 of the said judgment, the Court has observed 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 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."

6. He further submits that the petitioner falls in Class-III post and the recovery has been made from the payment made to him after his death, 3 WRIA No. 12918 of 2025 which is nearly 15 years prior to the date of his retirement.

7. He has further submitted that the there is no provision for participation of an employee in fixation of his pay and it cannot be said that the husband of the petitioner in any case was responsible for any fraud or collusion with regard to the fixation of his pay. He submits that in the light of the aforesaid judgment, no recovery can be made from the post- death dues of husband of the petitioner and accordingly the impugned order is illegal and arbitrary.

8. Learned Standing Counsel on the other hand has opposed the writ petition but could not dispute the facts of the present case.

9. Considering the argument raised by the petitioner that the ratio in the case of State of Punjab and others Vs. Rafiq Masih (supra) would not bind this Court. This Court is of the considered view that any direction under Article 142 of the Constitution of India has to pertain to the fact of the very case and as discussed by the Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others (supra), the extraordinary powers under Article 142 of the Constitution of India are vested with the Supreme Court to pass equitable orders for meeting the "ends of complete justice". It gives effect to the realist approach of jurisprudence and gives preference to the justice oriented approach of equity over strict rigors of law. While exercising the said power, the Supreme Court can mould the relief in a particular case as per the circumstances of the case. However, Article 136 is more of a corrective provision that provides the highest court of the land with an amplitude of jurisdiction to settle the law of the land and build a Precedent for the future. The same is considered as a "Declaration of law" as per Article 141 of the Constitution of India.

10. The paragraph no. 12 of the aforesaid judgment is quoted below for ready reference:- "12. Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute. It is a power that gives preference to equity over law. It 4 WRIA No. 12918 of 2025 is a justice-oriented approach as against the strict rigours of the law. The directions issued by the Court can normally be categorised into one, in the nature of moulding of relief and the other, as the declaration of law. "Declaration of law" as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the highest court of the land. This Court in India Vank v. ABS Marine Products (P) Ltd., Ram Pravesh Singh v. State of Bihar and in State of U.P. v. Neeraj Awasthi has expounded the principle and extolled the power of Article 142 of the Constitution of India to new heights by laying down that the directions issued under Article 142 do not constitute a bindin precedent unlike Article 141 of the Constitution of India. they are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Court has compartmentalised and differentiated the relief in the operative portion of the judgment by exercise of powers under Article 142 of the Constitution as against the law declared. The directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore, lose its basic premise of making it a binding precedent. This Court on the quivive has expended the horzons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the case."

11. In light of the aforesaid decision of the Supreme Court once we see the direction issued in paragraph no. 18 in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others (supra) we find that the directions are general in nature and are not restricted to the facts of the case which are being decided by the Supreme Court.

12. In light of the above, this Court is of the considered view that the said 5 WRIA No. 12918 of 2025 direction of the Supreme Court have been passed in exercise of power under Article 136 of the Constitution of India rather than under Article 142 of the Constitution of India and consequently, are binding precedent.

13. Apart from the above, this Court further notices that Supreme Court itself has been following a verdict in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others (supra), inasmuch as where judgment has been followed by the Supreme Court in the case of Thomas Daniel Vs. State of Kerala and others in Civil Appeal No. 7115 of 2010 decided on 02.05.2022 and also in the case of Jagdish Prasad Singh Vs. State of Bihar and others passed in Civil Appeal No(s) 1635 of 2013 decided on 08.08.2023 where the Supreme Court has relied upon the judgment of State of Punjab and others Vs. Rafiq Masih (White Washer) and others (supra) with approval. Accordingly, the said judgment has laid down binding precedent. Accordingly, it also applicable in the case of the petitioner.

14. In light of the above, this Court after examining the matter is of the considered view that issue raised in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others (supra) squarely applies to the facts of the present case, and accordingly the salary of a government employee is vested right cannot be recovered by the respondents in the manner as has been done, even with regard to the re- fixation of the salary, the same cannot be done without affording any adequate opportunity to the government servant.

15. In light of the above, the writ petition is allowed. Accordingly, the impugned order dated 27.01.2021 passed by the Commandent, 35th Vahini P.A.C., Lucknow is set aside.

16. The recovery so already made shall be paid back to the petitioner expeditiously say within a period of six weeks from the date a certified copy of this order is produced before the authority concerned.

17. We do not interfere with the order of fixation of salary inasmuch as the same has been passed after affording due opportunity of hearing to the petitioner. Liberty is given the to the petitioner to approach the appellate authority in case she is aggrieved by the order of re-fixation of salary, in 6 WRIA No. 12918 of 2025 case the appeal is filed within next four weeks, the same shall be considered and decided expeditiously. November 14, 2025 A.Nigam (Alok Mathur,J.) ANUJ NIGAM High Court of Judicature at Allahabad, Lucknow Bench