ORDER:

The present Writ Petition(TR) has been filed seeking to direct the respondents to release and pay the withhold amounts of retirement benefits of DCRG amount of Rs.2,00,000/- to the petitioner and pay the petitioner due pension as per the last pay drawn by the petitioner at the time of the retirement without any recovery/reduction in the upgrade scale of Grade Pandit post with all consequential benefits by holding the action of the respondents in withholding the petitioner retirement benefits of DCRG and paying the less pension to the petitioner by reducing the last pay drawn by him in the guise of Act-I of 2005 without notice and opportunity as illegal arbitrary discriminatory and subversive of Articles 14, 16 of the Constitution of India.

2. Today, when the matter have been taken up for hearing, learned counsel for the petitioner submits that the present writ petition(TR) is squarely covered by order dated 24.02.2022 passed by this Court in WP Nos.32896 & 33790 of 2013, the relevant paragraphs in the order reads under:

“6. The respondent-employees filed O.A.No.2526 of 2012 and 2527 of 2012 respectively praying to declare that they are entitled to get pension fixed on the basic of Rs.37,600/-, to declare that pension payment made on the basis of revised last pay certificate showing the basic pay as Rs.34,450/- as arbitrary and violative of Articles 14, 16, 21 and 300-A of the Constitution of India and to further declare the recovery of amount from the gratuity as illegal.

7. The Tribunal disposed of both O.As, acceding to the request of the respondent-employees, directed the petitioners herein to send fresh pension proposals to the Accountant General based on the last pay drawn by the employee and also directed to refund the amount recovered from the employee.

8. There are two limbs to the directions issued by the Tribunal. The first limb deals with determination of monthly pension and second limb deals with recovery of excess amount paid on account of wrong pay fixation earlier made.

9. In view of the judgment of Full Bench upholding the constitutional validity of Act 1 of 2005, it is no more permissible for the employees to contend that they are entitled to retain wrong pay fixation extended to them based on the earlier Government orders. Therefore, the revision of last pay drawn to lower stage and consequential revision of pension to lower stage cannot be faulted and both employees are entitled to a lower monthly pension of Rs.17,025/- as on the date of their retirement.

10. With reference to recovery, it is seen from the record that the excess amount was paid to the employee from 01.02.2005 till their retirement from service. By the time, steps were taken to recover the amount, employees have already retired from service.

11. Issue of wrong pay fixation on higher side, payment of higher amounts than entitlement of an employee and on revision of such wrong pay fixation, recovery of amount was considered by the Hon’ble Supreme Court in State of Punjab & others Vs Rafiq Masih (White Washer) & others. 11.1. On review of precedent decisions, the Hon’ble Supreme Court laid down broad parameters to deal with the case of recovery. Paragraph No.18 reads 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 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 been made for a period in excess of five years, before the order of recovery