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HIGH COURT OF JUDICATURE AT ALLAHABAD

WRIT - A No. - 26020 of 2016

Prabhakar Pandit

.....Petitioner(s)

Versus

State Of U.P. And 5 Others

.....Respondent(s)

Counsel for Petitioner(s) : Anoop Kumar Pandey, Radhey Krishna

Pandey

Counsel for Respondent(s) : C.S.C.

Court No. - 34

(Sl.No.75)

HON'BLE ANISH KUMAR GUPTA, J.

1. Heard Sri Radhey Krishna Pandey, learned counsel for the petitioner

and Sri Dileep Kesarwani, learned Additional Chief Standing Counsel for

the State.

2. The instant petition has been filed by the petitioner seeking quashing of

the order dated 11.02.20216 whereby the representation of the petitioner

was rejected and the orders dated 08.03.2011 and 24.08.2011, which were

passed after the retirement of the petitioner for recovery of the excess

amount paid to the petitioner due to wrong fixation of pay scale.

3. The briefly stated facts of the case are that the petitioner herein was

appointed as Assistant Prosecution Officer in the office of Senior

Prosecution Officer, District Allahabad on 02.08.1976 and thereafter he

retired on 28.02.2011 from the post of Senior Prosecution Officer, Deoria.

After his retirement, before releasing the retiral dues to the petitioner, the

respondents have stated that the petitioner was wrongly paid the excess

amount due to grant of one additional increment in terms of the

Government Orders dated 02.12.2000, 20.10.2001 and 13.08.2002 and

taken a written consent from the petitioner for deduction of the said

excess amount paid to him due to said increment granted to the petitioner

erroneously. Under the compelling circumstances as his retiral dues were

at stake, the petitioner had to give the written consent and pursuant

thereof an amount of Rs. 68,619/- was recovered from the retiral dues of

the petitioner. Being aggrieved, the petitioner had earlier approached this

WRIA No. 26020 of 2016

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Court by filing the Writ Petition No. 29369 of 2013, which was disposed

of vide order dated 11.12.2015 with a direction to the respondents to take

a fresh decision on the representation submitted by the petitioner.

However, vide impugned order dated 11.2.2016, the said representation

was rejected by the respondents.

4. Learned counsel for the petitioner relying upon the judgment of Apex

Court in Punjab and Others vs. Rafiq Masih (White Washer), 2015 4

SCC 334 , submits that after his retirement no amount could be recovered

from him, which is claimed to be an excess amount paid to the petitioner

due to wrong fixation of pay scale or the increments granted to him

during his service period. The relevant portion of the relevant directions

of the Apex Court in Rafiq Masih (supra) are as under:

"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, summarize 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 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. In the considered opinion of this Court, the case of the petitioner is

fully covered in clause-II, of the afores