The judgment established the principle that recovery from a retired employee, for a period exceeding five years, may be unsustainable in law if it places the employee in financial hardship, as per the principles of law enunciated by the Supreme Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others (Supra).

Abhilasha Kumari, J.

1. By preferring this petition under Article-226 of the Constitution of India, the petitioner has prayed that the order dated 15.11.2002 and letter dated 17.02.2003, issued by respondent No. 2, insofar as they direct recovery of Rs. 45,819/- to be made from the pension and Gratuity of the petitioner, be quashed and set aside.

2. Briefly stated, the facts of the case are that the petitioner was working as Senior Clerk under respondent No. 2, Joint Director of Agriculture, Mehsana Division. He retired on superannuation on 31.03.2002, on the same post. By an order dated 15.11.2002, passed by respondent No. 2, a fresh pay-fixation has been done and, consequently, recovery of excess amount has also been ordered by a letter dated 17.02.2003. The amount proposed to be recovered by the respondents is Rs. 45,819/-. Consequently, the pension amount of the petitioner would also be refixed to his detriment. Aggrieved by the above action, the petitioner has approached this Court by way of the present petition.

3.1 Mr. A.S. Supehia, learned advocate for the petitioner has submitted that no opportunity of hearing has been granted to the petitioner before passing the impugned order dated 15.11.2002 and issuing the letter dated 17.02.2003, directing recovery to be made from the petitioner.

3.2 it is further submitted that by the impugned order dated 15.11.2002, the higher pay-scale, which was granted to the petitioner with effect from 01.06.1987, is sought to be withdrawn and the pay of the petitioner is sought to be fixed on the basis of Selection Grade, from 05.01.1981. This action has been taken by the respondents after the retirement of the petitioner and relates back to a period of about twenty years. Hence, the passing of the impugned order and the consequential recovery, at this stage, is unjustified and against the principles of law enunciated by the Supreme Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334.

3.3 It is next submitted that it is not the case of the respondents that a wrong pay-fixation has been due to fraud or misrepresentation by the petitioner. Hence, as the petitioner is not responsible for the actions of the respondents, the impugned orders, which will have a detrimental effect upon the petitioner after his retirement, are illegal and unsustainable in law.

4.1 Mr. Swapneshvar Goutam, learned Assistant Government Pleader for the respondents has submitted that the petitioner was granted a higher pay-scale erroneously and when it came to the notice of the respondents the error was sought to be corrected, for which purpose the impugned orders have been passed.

4.2 That, the petitioner has received both the Selection Grade and Higher Pay-Scale during the course of his service, which he has accepted without raising any objection. The petitioner gave an option for Selection Grade and then withdrew it and opted for Higher Pay-Scale. The petitioner further withdrew this option and again opted for Selection Grade. It is because of this confusion that an error was committed and the respondents mistakenly granted the petitioner the benefits of both Selection Grade and Higher Pay-Scale, which mistake was sought to be corrected by passing the impugned orders. Hence, there is no illegality in the action taken by the respondents.

4.3 it is further submitted that the correction of the error is an administrative procedure, therefore, it was not necessary to grant an opportunity of hearing to the petitioner.

5. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record.

6. The issue involved in the petition, that is, the withdrawal of the higher pay-scale after several years, and that too after the superannuation of the petitioner and the consequential recovery, is now covered by a judgment of the Supreme Court in State of Punjab and others Vs. Rafiq