Court No. - 30

Case :- WRIT - A No. - 12516 of 2022

Petitioner :- Dharmnath Mishra

Respondent :- Assistant Director Of Education 4 Others

Counsel for Petitioner :- Adarsh Singh,Indra Raj Singh

Counsel for Respondent :- C.S.C.

Hon'ble Ashutosh Srivastava,J.

Heard Sri Adarsh Singh, learned counsel for the petitioner and Sri Shailendra

Singh, learned Standing Counsel for the State-Respondent Nos.1, 3 & 5.

The challenge made in this writ petition is to an order dated 08.10.2021 passed

by the Respondent No.3, Finance and Account Officer, Basic Education,

Gorakhpur, whereby the grade pay of the petitioner has been amended with

retrospective effect.

Record reveals that the petitioner was appointed on the post of Assistant Teacher

in C.T. Grade in Ram Prasad Bismil Inter College Pandepar, Kaudiram,

Gorakhpur on 21.11.1984. After completion of 10 years satisfactory service the

petitioner was granted benefit of selection grade w.e.f. 01.01.1995 in the pay

band of 9300-34800 with grade pay of Rs.4800. After completion of 12 years of

satisfactory service, the petitioner was again granted benefit of promotional pay

band 9300-34800 with grade pay of Rs.5400 w.e.f. 21.11.2006. On a complaint

being made by the Manager of the Institution with regard to wrong fixation of

promotional grade pay to the petitioner, the Assistant Director of Education

(Basic) 7th Region, Gorakhpur, vide order dated 08.10.2021 reduced the grade

pay of Rs.5400/- into Rs.4800/-. On 31.03.2022 the petitioner superannuated

from service from the post of Assistant Teacher after attaining the age of 60

years.

Learned Counsel for the petitioner submits that the grade pay of the petitioner

has been reduced without affording any opportunity of hearing and without any

lawful exercise. He further submits that the grade pay of the petitioner has been

reduced or amended after 15 years of pay fixation, which cannot be sustained in

the eyes of law. Learned Counsel for the petitioner further submits that the

amount is being sought to be recovered after a gap of about 15 years of pay

fixation on the ground that his pay scale was wrongly fixed. It was further

submitted that there was no misrepresentation or fraud on the part of the

petitioner and in view of the latest pronouncement of Hon'ble Apex Court in the

case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others

2015 (4) SCC 334 no such recovery can be made from the petitioner. Relevant

paragraph 18 of the aforesaid judgment is quoted as under:-

"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."

Recently, this Court in the case of Brijendra Kumar Tripathi & Others Vs.

State of U.P. & Others reported in 2019 (4) ADJ 690 (LB) has held as under:-

"....... that the opposite parties have