JUDGMENT :

1. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

2. It is submitted by learned counsel for the petitioner that the petitioner was working on the post of Junior Engineer under the respondents and has since retired on 30.06.2014 from the office of Executive Engineer, Rural Engineering Services, Gorakhpur. It is further submitted by learned counsel for the petitioner that a liability was fixed against the petitioner on the ground of excess payment of Rs. 99,856/-. The aforesaid liability is in respect of the year 2011-12 for construction of drain and road under Dr. Ambedkar project scheme for an estimate of Rs. 80.75 lakhs. Against the aforesaid estimated value, the financial and administrative approval was accorded to the tune of Rs. 56.15 lakhs and in pursuance thereof, a contract was executed on 12.09.2011. After completion of the contract, the total payment made was Rs. 55,49,856/-. The respondents have disputed the difference of amount of Rs. 99,856/- after taking measurement. The petitioner came to know about the aforesaid liability been fixed after his retirement thereafter the petitioner has moved an application before the Executive Engineer on 12.03.2016 giving details of circumstances in which the difference arisen and the amount should not be realised. It is further submitted that the petitioner has regularly represented the respondent authorities however the grievance of the petitioner was not decided and retirement dues after retirement of petitioner was not paid. After the retirement of the petitioner on 08.09.2016 another order was passed by the respondent No. 4 claming wrong fixation of promotional pay scale since 01.12.2008 and as such, the difference of amount of Rs. 3,10,022.00 was sought to be recovered. It is further submitted that thereafter on 02.05.2017, an order has been passed by the Additional Director, Treasury and pension, Varanasi Region, Varanasi directing adjustment of Rs.4,09,878/- from the retirement dues of the petitioner. By means of impugned order, adjustment of Rs. 4,09,878/- is being made from the retrial dues of the petitioner. It is further submitted that the petitioner submitted representation dated 13.04.2017 before the respondent authorities against the order dated 08.09.2016. Petitioner further filed a representation dated 01.04.2017 before the respondent authorities against the recover of Rs. 99,856.00

3. It is further submitted by learned counsel for the petitioner that payment of excess salary was made in the year 2008 and aforesaid wrong fixation was not detected by the respondent and they have proceeded to initiate the recovery proceeding after retirement of the petitioner on 30.6.2014. It is further submitted that the retiral dues have been released, however now the amount is being adjusted from the pension. It is further submitted by learned counsel for the petitioner that neither the petitioner was in any manner involved in the fixation of third ACP nor any fraud or misrepresentation has been attributed to the petitioner in respect of wrong fixation. He has further submitted that the petitioner is entitled to protection in view of the law laid down by the Apex Court in State of Punjab and others Vs. Rafiq Masih (White Washer) (2015) 4 SCC 334.

4. Learned Standing Counsel appearing on behalf of the State submits that financial and administrative approval was given for work to the tune of Rs. 60 lakhs by the Government. The Executive Engineer sanctioned Rs. 54.50 lakh for the work in question and as such, petitioner was authorised to make payment to the extent of Rs. 54.50 lakh, however, petitioner has made payment of Rs. 55,49,856.00/- and as such, a payment Rs. 99,856.00 has been excessively paid by the petitioner and the aforesaid amount is also sought to be recovered from the petitioner by impugned order. It is further submitted by learned Standing Counsel that the excess of salary paid and excess of payment made to th