Neutral Citation No. - 2025:AHC-LKO:10635 Court No. - 6 Case :- WRIT - A No. - 1810 of 2025 Petitioner :- Krishn Kumar Gupta Respondent :- State Of U.P. Thru. Prin. Secy. (Medical Health Family Welfare ) U.P. Lko. And 3 Others Counsel for Petitioner :- Manoj Kumar Gupta Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J. 1. Heard Sri Manoj Kumar Gupta, learned counsel for petitioner as well as learned Standing Counsel for the respondents. 2. By means of the present writ petition the petitioner has challenged the order dated 23.01.2025 passed by the District Malaria Officer, Unnao by which the recovery of Rs. 3,69,952/- in the denominations of Rs. 8824/- monthly from the salary of the petitioner in the 42 EMIs has been order in pursuance of the letter dated 13.12.2024 depicting pay Fixation along with a Recovery Chart. 3. It has been submitted by learned counsel for petitioner that petitioner was appointed as a Filaria Inspector under the compassion appointment under Dying in Harness Rules. Thereafter be was recommended ACP from time to time and at present petitioner is working on the post of Biologist, at Filaria Control Unit, Office at District Malaria Officer, Unnao. 4. It is submitted that without being given any opportunity or any show cause notice, the Executive Engineer, Nalkoop Khand, Ayodhya has passed the order dated 23.01.2025 thereby seeking to recovery of Rs. 3,69,952/- from the salary of the petitioner. 5. It is further submitted by learned counsel for the petitioner that said recovery has been issued only before without affording any opportunity of hearing to the petitioner and the amount has been sought to be deducted from the salary of the petitioner. He further submits that without granting any opportunity to the petitioner by means of the impugned order, his salary from 2008 onward have been re-fixed and recovery has been sought to be made from the salary of the petitioner. It is further submitted by learned counsel for petitioner that this aspect of the matter has been considered by the Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 334 where it has been observeed that due to wrong fixation of pay scale, if excess payment is made the same cannot be recovered f from III and Class IV service employees and guidelines with regard to the recovery was laid down by the Supreme Court in paragraph no. 18 of the judgment, which reads 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." 6. Heard learned counsel for the parties and perused the record. 7. This Court is of the considered view that the recovery made by the respondents from the petitioner on the ground of wrong fixation of salary, is clearly illegal and arbitrary and the amount is being sought to be recovered from the salary of the petitioner is squarely covered by the judgment of the Apex Court in the case of State of Punjab Vs. Rafiq Masih (whitewasher) (supra). There is no fault of the petitioner in the said pay fixation nor such allegation has been made by the respondents. 8. In view of above, the impugned order dated 23.01.2025 is hereby set aside. The writ petition stands allowed. 9. It is made clear that no recovery shall be made from the salary of the petitioner but liberty is granted to the respondents to refix the salary of the petitioner after giving due opportunity of hearing to him. 9. The respondents are directed to refund the recovered amount expeditiously, say, within a period of six weeks from the date a certified copy of this order is produced before him. (Alok Mathur, J.) Order Date :- 18.2.2025 Ravi/ Digitally signed by :- RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, Lucknow Bench