Recovery of excess salary from retired employees, particularly Class III and IV, is impermissible post-retirement, especially without notice, as held in established case law.

JUDGMENT :

Ajit Kumar, J.

1. Heard Sri Virendra Singh, learned counsel for the petitioner and learned Additional Chief Standing Counsel representing State respondents.

2. By means of present petition filed under Article 226 of the Constitution, petitioner has challenged the order dated 13th July, 2005 providing for refixation of pay of the petitioner w.e.f. 1.7.1985 as the pay fixation in the payscale of Rs. 450-720 w.e.f. 1.7.1985 has been cancelled. The consequential order passed in that behalf on 27th September, 2005 providing for recovery of excess amount paid to the petitioner by way of salary passed by Superintendent Engineer has also been challenged and so also final consequential order passed by Executive Engineer dated 30th September, 2005 directing for recovery has been challenged.

3. The basic argument advanced to assail the orders is that petitioner having retired on 30th June, 2005 from post of junior clerk, no such pay refixation could have been order w.e.f on 1st July, 1985 and that too without any notice and opportunity of hearing to him. Yet another argument advanced is that subsequently the State Government itself has released a Government Order that such correction in pay fixation beyond period of 34 weeks prior to the date of retirement, to be bad. It is, therefore, argued that this being beneficial peace of subordinate legislation, its scope and ambit can be made effective in so far as its applicability is concerned, though on principles. It is also submitted that at no point of time petitioner had made any misrepresentation for particular pay fixation and hence petitioner cannot be saddled with liability for recovery on the principle of Suggestio falsi" or "suppressio veri"

4. It is also submitted on behalf of the petitioner that case of the petitioner stands squarely covered with the judgment in the case of State of Panjab and Others v. Rafiq Masih (White Washer) (2015) 4 SCC 334 . Vide paragraph 12, the Court has held thus:

"12. 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 employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from 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 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."

5. Learned counsel for the petitioner states that respondents in the counter affidavit having failed to demonstrate that petitioner at any point of time had given any undertaking for recovery of such pay fixation, for any wrongful pay fixation, corrections cannot be enforced by way of recovery of the excess payment .

6. Meeting the submissions so advanced by learned counsel for the petitioner, Learned Additional Chief Standing Coun