The main legal point established in the judgment is that the recovery of an amount from a retired employee, in the absence of misrepresentation or fraud, and due to a misconception leading to the excess payment, is not sustainable in the eyes of law.

JUDGMENT :

Heard the parties.

2. Petitioner has approached this Court with a prayer for quashing the order of recovery dated 14.03.2019, as entered in the service book of the petitioner, by which the respondents have illegally ordered to recover an amount of Rs.1,62,332/- for the period from 1.4.97 to 31.12.2014 after retirement of the petitioner.

3. As per the factual matrix, the petitioner was initially appointed and joined to the post of Assistant Teacher on 03.05.1983, vide memo No. 144-46, dated 16.04.1983 and served the department with full devotion and satisfaction to the respondent-authorities. Subsequently, the petitioner was terminated on 15.01.1985 and thereafter, he was re-appointed vide memo No. 9396-9619 dated 26.12.1995 and joining was accepted on 03.01.1996 and since then, he has been discharging his duties to the utter satisfaction of the respondents and after rendering long period of service, he superannuated on 31.03.18. It is the specific case of the petitioner that after superannuation, he has received all the benefits from 03.01.96 though his initial date of appointment was 3.5.83. During the service period, pay-scale of the petitioner was revised and he also received the revised pay-scale duly approved by the District Account Officer. Thereafter, one fine morning, his pay-scale was revised, deducting one increment on 10.03.2018 and approval was also accorded by the District Account Officer. The difference of amount which the petitioner had received in excess was ordered to be recovered from the post-retiral benefits of the petitioner, since he superannuated on 31.03.2018.

The petitioner being aggrieved by the order of recovery, has knocked the door of this Court.

4. Mr. Din Dayal Saha, learned counsel appearing for the petitioner vociferously argues that the impugned order of recovery is not tenable in the eyes of law. Learned counsel assiduously submits that petitioner never misrepresented before the respondent-authorities nor any fraud was played by the petitioner. Since, he was entitled for the salary of the said period, hence, the same was paid to him. Learned counsel further argues that the Hon’ble Apex Court in SLP(C) No. 11699 of 1990, while disposing of the said Appeal, clearly observed that “those teachers who have served in the past but there has been break in the service on account of termination, shall have the credit of past service both in regard of payment of salary and also for seniority and other service benefits.” In view of the observation and direction of the Hon’ble Supreme Court, the petitioner was rightly paid the salary of the said period. Learned counsel further argues that the respondents could not have passed order of recovery of the said amount that too after his retirement. As such, a direction be given to the respondents not to recover the amount, if not recovered till date and if the same has already been recovered, refund the recovered amount to the petitioner.

5. Mr. Prashant Kumar, learned counsel appearing for the respondent-State, vehemently opposes the contention of learned counsel for the petitioner and submits that though nothing has been brought on record to show that petitioner misrepresented or any fraud was played, the petitioner never brought this fact to the knowledge of the respondents that similarly situated persons were paid the amount and no order of recovery was passed against them. Learned counsel very fairly submits that in view of the order passed by the Hon’ble Apex Court in case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors., reported in (2015) 4 SCC 334, the respondents cannot recover amount from a retired employee. Admittedly, the order of recovery has been passed after retirement of the petitioner, the same is not sustainable in the eyes of law.

6. Be that as it may, having gone through the rival submissions of the parties across the bar, this Court is of the considered opinion that the case of the petitioner needs consideration. Admitte