Neutral Citation No. - 2025:AHC-LKO:39164 Court No. - 18 Case :- WRIT - A No. - 6047 of 2025 Petitioner :- Jagat Singh Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation Deptt. Lko And 3 Others Counsel for Petitioner :- Prashant Chaurasia Counsel for Respondent :- C.S.C. Hon'ble Manish Mathur,J. 1. Heard learned counsel for petitioner and learned State Counsel for opposite parties. 2. Petition has been filed challenging order dated 28th October,2024 whereby an amount of Rs. 65431/- has been recovered from pensioanary benefits of petitioner on account of wrong fixation of pay scale in the year 2013. 3. It has been submitted that petitioner has not been afforded any opportunity of hearing prior to passing of impugned order and the pay fixation made earlier has been interfered with by means of impugned order subsequent to his retirement and is therefore covered by judgment rendered by Supreme Court in the case of State of Punjab and others versus Rafiq Masih (White Washer) and otheres 2015 (4) SCC 334. 4. Learned State Counsel has been provided written instructions dated Ist July, 2025, which are taken on record and as per which petitioner was incorrectly granted higher pay scale in the year 2013 due to which said aspect was revisited by means of impugned order with correct fixation of pay scale. 5. From a perusal of the impugned order as well as written instruction, it is thus evident that revised pay scale has been made admissible to petitioner subsequent to his superannuation by means of impugned order dated 28th March, 2024 and his post retiral benefits have been paid in accordance with impugned order which automatically indicates recovery/adjustment having been made from his pensionary benefits with regard to enhanced pay scale made admissible to petitioner in the year 2013. Hon'ble Supreme Court in the case of Rafiq Masih (supra) has held 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 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. Upon applicability of aforesaid judgment in the present facts and circumstances, it is thus evident that there is no allegation of any fraud or misrepresentation at the end of petitioner for grant of enhanced pay scale in the year 2013. 7. It is also evident that despite specific directions issued by this Court on 28th May, 2025 as to whether petitioner had given any undertaking for such recovery to be made, the written instructions are silent on the said aspect. 8. In view thereof, the impugned order dated 28th March, 2024 so far as it pertains to recovery/adjustment made from pensionary benefits of petitioner being unsustainable is hereby quashed by issuance of writ in the nature of Certiorari. 9. With regard to second prayer made in the writ petition seeking a direction to opposite parties to correctly fixed and pay second A.C.P. to petitioner falling due on 22nd December, 2019 in terms of government order dated 5th November, 2014, liberty is granted to petitioner to make a fresh representation to the authority concerned which shall be considered and decided by opposite party No.3 i.e. Executive Engineer, Minor Irrigation, Meerut or any other competent authority within a period of eight weeks from the date a certified copy of this order is produced before the said authority. In terms thereof, the opposite parties are directed to refix the pay scale of petitioner and to issue pension payment order accordingly. 10. In pursuance of quashing of impugned order, the opposite parties are directed to ensure payment of amount which has been recovered /adjusted from retrial benefits of petitioner on account of alleged wrong fixation of pay scale in the year 2013. 11. Consequently the petition succeeds and is allowed. Parties to bear their own costs. 12. Compliance of the directions with regard to refund shall made by the concerned authority within a period of six weeks from the date a certified copy of this order is produced before the said authority. Order Date :- 9.7.2025 prabhat Digitally signed by :- PRABHAT KUMAR High Court of Judicature at Allahabad, Lucknow Bench Digitally signed by :- PRABHAT KUMAR High Court of Judicature at Allahabad, Lucknow Bench