ORDER :

Order in the Delay Condonation Application

1. Heard learned counsel for the parties.

2. The explanation for the delay furnished in the affidavit accompanying the delay condonation application is found to be satisfactory.

3. Accordingly, the delay is condoned.

4. Office is directed to allocate a regular number to the instant appeal.

Order on the Memo of Appeal

5. Heard Shri Ramanand Pandey, learned Standing Counsel for the appellants and Shri Upendra Upadhyay for the respondent.

6. The State is in appeal against the judgement of learned Single Judge dated 02.11.2022 by which, the writ petition filed by the respondent (hereinafter referred to as the "Writ Petitioner") was allowed and the amount recovered from the writ petitioner in pursuance of orders impugned dated 08.09.2016 and 02.05.2017 was directed to be restituted within a period of three months.

7. The facts necessary for disposal of the instant appeal are that the petitioner had retired on 30.06.2014 from the post of Junior Engineer, Rural Engineering Services, Ghazipur. On 08.09.2016, the Executive Engineer, Rural Engineering Services, Division Ghazipur, issued an Office Order approving recovery of a sum of Rs. 3,10,022/- from the petitioner. The order records that by mistake the petitioner was given benefit of the 3rd Assured Career Progression Scheme from 12.08.2008, though he was entitled to it from 01.12.2008. The difference amount was consequently sought to be recovered thereby. The order dated 02.05.2017 is a communication sent by Additional Director, Treasury and Pension, Varanasi Mandal, Varanasi to Senior Treasurar, Treasury, Ghazipur by which approval had been granted for release of gratuity to the petitioner after deducting Rs. 4,09,878/-. It is common ground between the parties that it includes the amount of Rs. 3,10,022/-allegedly paid in excess to the petitioner because of the petitioner having been granted benefit of A.C.P. from an earlier date. It also includes another sum of Rs. 99,856/-. It represents the amount allegedly paid in excess by the petitioner to a contractor during his service-tenure in the year 2011-12. The learned Single Judge has held that both the recoveries were illegal and could not have been made in view of the law laid down by the Supreme Court in State of Punjab and Others v. Rafiq Masih (White Washer) (2015) 4 SCC 334 and Thomas Daniel v. State of Kerala & Others (Civil Appeal No. 7115 of 2010).

8. Shri R.N. Pandey, learned Standing Counsel submitted that learned Single Judge committed a manifest error of law in applying Rafiq Masih (supra) to the facts of the instant case inasmuch as recovery of Rs. 99,856/-was on account of excess payment made by the petitioner to the contractor. It is submitted that the judgement in case of Rafiq Masih (supra) would apply only to cases of wrong fixation of salary or payment of excess allowances but not where the employee was guilty of causing pecuniary loss to the State by making excess payment to the contractor.

9. On the other hand, learned counsel for the respondent submitted that the alleged payment of excess amount to the contractor is based on a unilateral opinion formed by the respondent-Department after his retirement. It is submitted that a contract for a sum of Rs. 56.15 lakhs was duly approved and after the work thereunder was satisfactorily executed, the payment was released. The State did not raise any objection in relation to the payment made to the contractor while the writ petitioner was in service. After his retirement, no such recovery can be directed. It is submitted that under Regulation 351-A of the Civil Service Regulations, such an action is not permissible as there was no sanction of the Governor and also because the event in respect of which, the recovery is sought to be made, took place more than four years before the institution of the proceedings.

10. It is clear from the rival contentions that the instant appeal is confined only to the alleged excess payment mad