Point of Law : Service - Post retiral dues - Neither the excess amount, which has been paid w.e.f. 12.7.2002 when the petitioner completed 24 years of service, may be recovered from the petitioner nor his pension can be reduced.

JUDGMENT :

1. Heard Sri Prahlad Maurya, learned counsel for the petitioner and Sri Virendra Kumar Srivastava, learned Standing Counsel for the State respondents.

2. By means of this petition the petitioner has prayed following relief:

(i) issue a writ of certiorari by quashing the order impugned dated 21.09.2020 and 19.11.2020 passed by the opposite party no. 2 contained in Annexure No. 1 & 2 respectively.

(ii) writ order or direction in the nature of mandamus commanding the opposite parties by directing them to release the amount Rs. 7,61,124/-which was stopped illegally, with compound interest to the petitioner, in the interest of justice."

3. The learned counsel for the petitioner has contended that the petitioner retired on 30.6.2019 from the post of Health Educator, Class III post in the Leprosy Department from the office of District Leprosy Officer, Azamgarh. After his retirement he completed all requisite formalities of getting post retiral dues but the dues have not been paid to him till the month of July, 2020, therefore, he filed a writ bearing Service Single No. 10724 of 2020 ( Lalta Ram vs. State of U.P. Thru Addl. Chief Secy. Medical & Health & Ors.) and the said writ petition was decided finally on 10.7.2020 whereby this Court directed the opposite parties to dispose of the writ petition of the petitioner dated 20.6.2020 whereby he has requested for payment of post retiral dues. Such order has been enclosed with the writ petition as Annexure no. 15. After getting certified copy of the order dated 10.7.2020 the petitioner preferred a representation dated 14.7.2020 to all opposite parties requesting that his port retiral dues be paid.

4. In compliance of the order dated 10.7.2020 passed by this Court the Finance Controller of the office of Director General, Medical, Health & Family Welfare disposed of the representation of the petitioner by passing order dated 21.9.2020. By means of order dated 21.9.2020 the pay scale of the petitioner has been revised with effect from 12.7.2002 when the petitioner had completed 24 years of his service. Not only the above consequent to the order dated 21.9.2000 the amount to the tune of Rs. 7,61,124/-has been deducted from the retiral dues of the petitioner on the ground that such amount has been paid excess to the petitioner by wrong fixation of his salary in the year 2002. Both the orders dated 21.9.2020 and 19.11.2020 have been impugned in the writ petition enclosing Annexure nos. 1 & 2 respectively.

5. The learned counsel for the petitioner has submitted that in view of the para 18 of the judgment of Hon'ble Apex Court in re State Of Punjab & Ors vs Rafiq Masih (White Washer) (2015) 4 SCC 334 no such recovery can be made from the post retiral dues of the petitioner, after his retirement as he retired from the post of Class-III. For convenience para 18 of the judgment is being reproduced herein below:

"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 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, that recovery if ma