Neutral Citation No. - 2025:AHC-LKO:9523 Court No. - 6 Case :- WRIT - A No. - 1799 of 2025 Petitioner :- Lalji Gupta Respondent :- State Of U.P. Thru. Prin. Secy. Ayush Anubhag Lko. And 2 Others Counsel for Petitioner :- Mohammad Tauseef Siddiqui,Shiv Pratap Singh Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J. 1. Heard Mohd. Tauseef Siddiqui, learned counsel for the petitioner and learned Additional Chief Standing Counsel. 2. By means of this petition, the petitioner has prayed following main relief(s):- "(i) Issue a writ order or direction in the nature of Certiorari for quashing the impugned order dated 09.11.2022 passed by Opposite Party No. 3 (contained as Annexure No.1) with all consequential benefits. (ii) Issue a writ order or direction in the nature of Certiorari for quashing the Order No.556/20-Audit dated 20.07.2020 and Order No.367/406/07.Audit dated 31.03.2022 after summoning the same from the office of Opposite Party No.2. (iii) Issue a writ order or direction in the nature of Mandamus commanding the opposite parties to refund the amount of Rs.5,14,196/- which is recovered from the Petitioner at the time of payment of his post retiral dues to the petitioner along with interest @ 12 % per annum within the time stipulated by this Hon'ble Court with all consequential benefits." 3. Learned counsel for the petitioner has stated that the benefit of pay fixation, which was admittedly done in the year 2006, has been deducted after the retirement of the petitioner by means of impugned orders dated 9.11.2022 to 20.07.2020 and 31.03.2022. The petitioner retired from the post of Pharmacist. The said post comes within the purview of Class-III and in terms of judgement and order of the Apex Court in re: State of Punjab vs. Rafiq Masih (White Washer) reported in 2015 (4) SCC 334, such recovery may not be executed from the Class-III employees. The aforesaid recovery has been executed without affording an opportunity of hearing to the petitioner. 4. The learned counsel for the petitioner has stated that the consent letter, if any, would not suffice the purpose in the present case inasmuch as the law is trite on the point that if at the time of making excess payment, the employee has not given any consent or undertaking to the effect that the excess amount may be withdrawn at the time of retirement, such recovery may not be executed. In the present case, the excess amount was paid to the petitioner in the year 2006 and any subsequent undertaking or the consent/undertaking so taken at the verge of retirement would be meaningless. The petitioner retired from Class-III post on 31.10.2021 and before his retirement on the basis of the impugned orders which have been passed on 9.4.2022, 20.7.2020 and 31.3.2022, the recovery has been directed which is patently illegal, arbitrary and uncalled for and accordingly, the same is liable to be set aside/quashed. 5. Learned counsel for the petitioner has drawn attention of this Court towards the judgement and order of the Apex Court in re: High Court of Punjab and Haryana and others vs. Jagdev Singh reported in (2016) 14 SCC 267 referring para nos. 9 and 10, whereby the Apex Court has clarified its own judgement in re: Rafiq Masih (supra) to the effect that if any employee has given undertaking at the time of receiving any monetary benefit, such recovery may be executed therefrom. 6.In the present case, the benefit of the revised pay scale etc. has been given to the petitioner in the year 2006 and undertaking has been taken from the petitioner at the fag end of his retirement, therefore, on account of such undertaking, the amount recovered may not be executed from the petitioner. 7. Since no such undertaking has been given by the petitioner in the year 2006 when he has been given the benefit of grade pay, therefore, no amount can be recovered from the petitioner after his retirement. Undisputedly, the petitioner retired from Class- III post, therefore, he is entitled to get the benefit of the judgement of the Apex Court in re: Rafiq Masih (supra). Further, such recovery may not be executed from the petitioner in the light of dictum of the Apex Court in re: Jagdev Singh (supra). 8. In view of the above, the writ petition is allowed. Consequently, the impugned order dated 9.11.2022 passed by respondent No.3 i.e. Regional Ayurvedic and Unani Officer, District Gautam Buddha Nagar is hereby set aside/quashed. 9. Therefore, the writ in the nature of mandamus is issued commanding the opposite parties to refund the amount of Rs. 5,14,196/- which has been recovered from the petitioner while making the payment of post retiral dues, with expedition, preferably, within a period of eight weeks from the date of receipt of certified copy of this order, failing which the petitioner would be entitled for interest on the delayed payment. 10. Considering the fact that the impugned order has been passed without giving opportunity to the petitioner, liberty is granted to the respondents to pass a fresh order after giving opportunity to the petitioner. It is made clear that the said order can be utilized only for the purpose of re-fixation of pension and not for recovery of any amount paid to the petitioner in light of the judgment of Rafiq Masih (White Washer) (Supra). 11. Liberty is given to the petitioner to move appropriate application with regard to non payment of benefit of ACP to the competent authority, who in turn, is directed to consider and decide the same, expeditiously. 12. There will be no order as to costs. (Alok Mathur, J.) Order Date :- 13.2.2025 RKM. Digitally signed by :- RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench