HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW WRIT - A No. - 4266 of 2024 Court No. - 8 HON'BLE MANISH MATHUR, J. 1. Heard learned counsel for petitioner and learned state counsel for opposite parties. 2. Petition has been filed seeking challenging order dated 22.4.2024 whereby pensionery benefits of petitioner has been effected due to re-fixation of pay scale of petitioner thereby withdrawing benefits granted to him since 1.6.2005. 3. It has been submitted by learned counsel for petitioner that impugned order has been passed without issuing any show cause notice or affording any opportunity of hearing to petitioner and that too after 20 years of such benefit already having been granted. It is also submitted that it is not the case of opposite parties that the alleged incorrect fixation of pay scale was due to any fraud or misrepresentation on the part of petitioner whose case was squarely covered by the judgement rendered by Supreme Court in the case of State of Punjab & others v. Rafiq Masih (White Washer) & others reported in (2015) 4 SCC 334. 4. Learned State counsel on the basis of short counter affidavit however submits that re-fixation has been done and recovery effected in view of consent issued by petitioner himself which has been brought on record along with short counter affidavit. 5. However, a perusal of the documents appended to short counter affidavit does not indicate any date of any such consent granted by petitioner for recovery being effected. Versus Counsel for Petitioner(s) : Praveen Kumar, Sudhanshu Srivastava Counsel for Respondent(s) : C.S.C. Ashok Kumar Srivastava .....Petitioner(s) State Of U.P. Thru. The Commissioner , Commercial Tax Lko. And 2 Others .....Respondent(s) 6. Hon'ble the Supreme Court in the case of State of Punjab & others v. Rafiq Masih (White Washer) & others reported in (2015) 4 SCC 334 has clearly enunciated that recovery cannot be effected from salary of Class III and Class IV employees particularly when there is no allegation of any fraud or misrepresentation on part of the employee. 7. In view thereof, this Court finds the present dispute squarely covered by judgment in State of Punjab & others v. Rafiq Masih (supra), which is in the following terms:- "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, 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." 8. In view of aforesaid facts and circumstances, impugned order dated 22.4.2024 is hereby quashed by issuance of a writ in the nature of Certiorari granting liberty to authority concerned to pass orders afresh regarding pay- fixation but only after affording opportunity of hearing to petitioner and considering his reply. Aforesaid exercise shall keep in mind directions issued by Hon'ble the Supreme Court in State of Punjab & others v. Rafiq WRIA No. 4266 of 2024 2 Masih(supra). Such a decision shall be taken within a period of eight weeks. Refund of recovery made from petitioner's salary shall be made by the authority within a period of eight weeks thereafter in light of State of Punjab & others v. Rafiq Masih (supra) . 7. Resultantly, writ petition succeeds and is allowed. (Manish Mathur,J.) September 16, 2025 AKK WRIA No. 4266 of 2024 3 Digitally signed by :- AMIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench