Recovery of excess salary payments from retired employees is impermissible unless specific conditions are met, as established in Rafiq Masih.

JUDGMENT

J.J. Munir, J.

Parties have exchanged affidavits.

2. Admit.

3. Heard forthwith.

4. Heard Mr. Brijesh Kumar Singh, learned Counsel for the petitioner and Mr. Sandeep Chandra, learned Standing Counsel appearing on behalf of the State.

5. This writ petition is directed against the orders dated 16.08.2023, 19.09.2023 and 20.10.2023 passed by respondent nos.4 & 5, determining the petitioner's salary, said to be mistakenly fixed and on that basis, ordering recovery of a sum of Rs. 6,53,470/-. The said sum of money has been deducted from the sum of money due to the petitioner on account of his commuted pension. The petitioner was a Leading Fireman (Class III) in the U.P. Fire Department. He was last posted in the Fire Department, District Hapur under the control of the Superintendent of Police, Hapur. The petitioner retired from services on 31.05.2023. He rendered a total of about 41 years of service and earned his third Assured Career Progression (A.C.P.). The petitioner's salary was fixed after the award of the third A.C.P. at a sum of Rs. 16,670/- per month, whereas according to the respondents, it should have been Rs. 16,180/- per month. This wrong fixation of the third A.C.P. Made, the respondents say that the petitioner has been paid excess emoluments, which they are now entitled to recover from the sum of money due to the petitioner on account of commuted pension.

6. Learned counsel for the petitioner submits that the petitioner is a retired Class III employee and he is in no way connected with the process of fixation of his salary, now said to be wrongly determined by the respondents. It is pointed out that it is not the respondent's case that the petitioner has contributed in any manner to the incorrect fixation of his salary. The respondents are, therefore, not entitled to recover. The argument is based on the authority of the Supreme Court in State of Punjab & Others v. Rafiq Masih (White Washer), (2015) 4 SCC 334. The petitioner is entitled to relief against recovery of the sum of money which has been paid irrespective of the fact that the determination was correct or erroneous. The attention of this Court has been drawn towards the following observation of the Supreme Court in Rafiq Masih (supra):-

"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 hereinabove, 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 a 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 made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

7. On the other hand, learned Standing Counsel submits that the petitioner's emoluments have been incorrectly determined and excess payment has been made at the time of fixation of third A.C.P. Learned Standing Counsel has endeavoured to say that the petitioner had consented to the recovery of emoluments paid in excess with entitlement of the respondents to recover. To buttress his contention, the Court's attention has been drawn by the learned Standing Counsel towards