Neutral Citation No. - 2025:AHC-LKO:7778 Court No. - 18 Case :- WRIT - A No. - 3505 of 2012 Petitioner :- Hareram Rai Respondent :- State Of U.P. Thru Prin. Secy. Deptt. Of Irrigation And 3 Ors Counsel for Petitioner :- Shyam Bihari Lal,Jay Prakash Singh Counsel for Respondent :- C.S.C. Hon'ble Manish Kumar Nigam,J. 1. Heard learned counsel for the petitioner, learned Standing Counsel and perused the record. 2. This petition has been filed for the following relief: "1) Issue a writ, order or direction in the nature of mandamus directing respondents opposite party No. 1, 2 & 3 to direct respondent no. 4 to not to recover any amount already paid to the petitioner in pursuation of the fixation made by the respondents at their own and also refund the amount already deducted in this regard. 2) Issue a writ, order or direction in the nature of certiorari quashing the impugned order No. 499/ नननखमम /चशश०/ नदनननक 23-04-2012 Annexure No. 1 to the writ petition." 3. Brief facts of the case are that the petitioner was appointed as work charged employee and was inducted in regular establishment since 09.05.1997. At that time, the salary of the petitioner was fixed by the respondents which was regularly being paid to the petitioner. By the order impugned i.e. dated 23.04.2012, passed by respondent no. 4, direction was issued for recovery of Rs. 66,990/- from the salary of the petitioner in 32 equal installments, on the ground that the salary of the petitioner was wrongly fixed and excess payment has been made to the petitioner because of wrong fixation. 4. It has been submitted by learned counsel for the petitioner that the salary was fixed by the respondents on their own and there was no role of the petitioner in the aforesaid fixation. In the order impugned, there is no allegation that the salary was wrongly fixed because of any fraud or misrepresentation made by the petitioner. It is further contended by learned counsel for the petitioner that before passing the order dated 23.04.2012, no opportunity was given to the petitioner. 5. According to the petitioner, such recovery cannot be made as per the law laid down by the Hon'ble Supreme Court in the case of 'State of Punjab and others Vs. Rafiq Masih (White Washer) and others, 2015 (4) SCC 334', paragraph-18 of which provides:- "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." 6. In the counter affidavit, there is no denial by the respondents that the petitioner was in any way responsible in wrong fixation of his salary nor there is any allegation that due to fraud or misrepresentation committed by the petitioner, the salary was wrongly fixed. 7. The case of the petitioner is squarely covered by the decision/law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra), particularly by condition no. (i) of the Hon'ble Supreme Court quoted in the earlier paragraph, which the learned State Counsel has been unable to distinguish. 8. Accordingly, the writ petition is allowed. 9. In view of the facts and circumstances discussed above, the impugned order dated 23.04.2012 passed by the opposite party no. 4, is hereby quashed. 10. It is further provided that in case, any recovery has been made from the petitioner, in pursuance of order dated 23.04.2012 passed by respondent no. 4, the same shall be refunded to the petitioner within a period of two moths along with interest at the rate of 6%. Order Date :- 6.2.2025 Ved Prakash (Manish Kumar Nigam,J.) Digitally signed by :- VED PRAKASH SHARMA High Court of Judicature at Allahabad, Lucknow Bench