Arvind Singh Chandel, J.—The challenge in the present writ petition is to the order (Annexure P3) dated 04.08.2023 issued by the District Programme Officer (Establishment), Nalanda whereby and whereunder the money worth Rs 2,17,738/- has been adjusted from the retiral benefits of the petitioner.

2. The facts of the case are that the petitioner was appointed as Clerk on compassionate ground in the office of the District Superintendent of Education, Nalanda on 28.12.1990. After completion of stipulated period, he received the benefit of first, second and third MACP in the year 2002, 2014 and 2021 respectively. He retired from the post of Clerk on 30.06.2023 from the office of the District Education Officer, Nalanda and, accordingly, his pension was verified from the office of the Accountant General (A & E), Bihar, Patna. Thereafter, the District Programme Officer (Establishment), Nalanda issued Letter No 2879 dated 04.08.2023 (Annexure P3) and instructed the Treasury Officer, Nalanda to adjust the amount of Rs 2,17,738/- from the retiral dues of the petitioner as it was given due to wrong pay fixation in favour of the petitioner. Hence, this petition has been filed.

3. The learned counsel for the petitioner would submit that the said excess amount has been paid because of the alleged wrong fixation of pay done by the respondents. According to him, it is not the case of the respondents that the said excess payment has been made on account of any fraud or misrepresentation for which the petitioner has been instrumental. He further submits that the said recovery is also bad in the light of the judgment of the Hon’ble Supreme Court in the case of State of Punjab & Others vs. Rafiq Masih (White Washer), reported in 2015 AIR SCW 501. He further submits that before issuance of such order of recovery (adjustment), the respondents have not given any opportunity of hearing to the petitioner.

4. The learned counsel for the respondents opposes the argument raised by the petitioner and submitted that, admittedly, the petitioner has been paid something extra which otherwise he was not entitled for. Immediately, on the respondents detecting excess payment to the petitioner, they have issued the impugned order of recovery/adjustment.

5. Having heard the contention put forth by either side and on perusal of the record, it appears that, admittedly, the petitioner retired from the post of Clerk, which is a Class III post, on 30.06.2023. The alleged excess payment has been made to the petitioner since 01.07.2007 which is more than 16 years prior to the order of recovery. It is not the case of the respondents that there has been any misrepresentation made by the petitioner for getting the said erroneous pay scale.

6. Under the aforesaid facts, it would be useful at this juncture to refer to the judgment in the case of Rafiq Masih (supra) wherein it has been very emphatically held by the Supreme Court that in the given situation, the recovery would be impermissible under the law. Relevant parts of Paragraph 11 is reproduced hereunder:—

“11 … … ...recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted