Neutral Citation No. - 2025:AHC-LKO:9983-DB Reserved Chief Justice's Court Case :- SPECIAL APPEAL No. - 328 of 2023 Appellant :- Banda Development Authority, Banda Thru. Its Vice Chairman/District Magistrate, Banda Respondent :- State of U.P. Thru. Prin. Secy. Deptt. of Housing and Urban Planning U.P. Govt. Lko. and another Counsel for Appellant :- Ram Raj, Jyotinjay Verma Counsel for Respondent :- C.S.C., V.P. Nag (S.C.), Rajendra Pd. Dwivedi (In person) Hon'ble Arun Bhansali, Chief Justice Hon'ble Jaspreet Singh, J. (Per : Arun Bhansali, CJ) 1. This appeal is directed against the judgment dated 11.05.2023 passed in Writ-A No.715 of 2023 whereby the writ petition filed by the respondent no. 2 herein has been allowed and the respondents in the petition have been directed to pay an amount of Rs. 11,83,141/- along with interest at the rate of 8% per annum from the date when the respondent retired till the date of actual payment/realization. 2. The respondent no.2 was initially appointed on the Post of Junior Engineer, a Class-III post, on 24.02.1987 in Kanpur Development Authority, Kanpur and was governed by Uttar Pradesh Development Authorities Centralized Services Rules, 1985. He retired from his service from the post of Executive Engineer on 31.07.2022 from Banda Development Authority, Banda. 3. A note-sheet dated 01.08.2022 addressed to Chief Finance and Accounts Officer was issued indicating therein that petitioner has purportedly been paid excess salary to the tune of Rs. 11,83,141/- and, therefore, on his retirement, the said amount be adjusted and out of the balance of Rs.22,89,259/-, 10% amount be retained and rest of the amount, i.e. Rs.20,60,333/- be paid. Along with the said note-sheet, a purported due-drawn statement was annexed. The petitioner, aggrieved of the deduction to the tune of Rs.11,83,141/-, sent a 2 communication dated 23.09.2022 to the appellants, inter alia, indicating that the deduction was illegal and against the principles of natural justice. Further, qua the amount of 10% retained also, communications were sent by the petitioner. However, when the requisites were not paid to the petitioner, the present writ petition was filed. 4. A response to the writ petition was filed by the respondents, inter alia, indicating that the State Government had issued Government Order dated 12.04.2021 whereby an option was given to the employees of the State Government to opt for retirement at the age of 58 years instead of 60 years. The respondent had opted for retirement at the age of 58 years under the said Government Order, however, continued to discharge his duties in an illegal manner till the age of 60 years. It was claimed that pursuant to the respondent opting retirement at the age of 58 years, in furtherance to the Government Order dated 12.04.2021, he was paid legally due arrears against salary in the year 2020-21 itself, however, he was now seeking double benefit while working till the age of 60 years. Further submissions were made that the respondent had submitted a sworn affidavit dated 18.07.2022 whereby he requested to deduct 10% of the total payable post retiral benefits as well as excess payment made against his salary and, as such, the plea raised has no substance. 5. Learned Single Judge, after hearing the parties, came to the conclusion that in view of the law settled by Hon'ble Supreme Court in State of Punjab and others Vs. Rafiq Masih (White Washer) : (2015) 4 SCC 334, deduction on account of alleged payment of excess salary of 5 years before the order of recovery issued is bad in law, which view was reiterated in Thomas Deniel Vs. State of Kerala and others : 2022 SCC Online SC 536. The plea raised regarding recovery being made on account of respondent serving till 3 the age of 60 years instead of 58 years was also not accepted on the ground that no charge-sheet was issued to him and, accordingly, came to the conclusion that the amount of Rs. l1,83,141/- was arbitrarily withheld. On the aspect of filing of the affidavit, it was held that owing to the dominant position and making it a pre-condition for payment of retiral benefits, obtaining of the affidavit dehors the rules was of no value and, consequently, allowed the writ petition, while imposing cost of Rs.15,000/-. 6. Learned counsel for the appellant made vehement submissions that learned Single Judge was not justified in accepting the writ petition filed by the respondent. Submissions have been made that the judgment in the case of Rafiq Masih (supra) had no application to the facts of the present case wherein admittedly the respondent has misrepresented and committed fraud with the appellant inasmuch he had agreed to retire at the age of 58 years on account of which he was accorded selection grade at the end of 8 years, 14 years, 19 years and 24 years of service whereas admittedly he has served till the age of 60 years wherein the selection grade are given at the completion of 10 years, l6 years, 21 years and 26 years respectively and, therefore, on account of such misrepresentation and the fraud committed by the respondent, the excess amount paid to him was recoverable and falls within the exceptions as provided in the case of Rafiq Masih (supra) and Thomas Deniel (supra). Submissions were made that once the petitioner had given an affidavit, inter alia, agreeing to the recovery to be made by the appellant, the plea raised pertaining to the violation of the principles of natural justice cannot be accepted as the respondent was well aware that the excess payment has been made to him and on that count, the judgment impugned deserves to be set aside. 7. During the pendency of the present appeal, a co-ordinate Bench of this Court required learned counsel for the appellant to seek 4 instructions as to what event occasioned the development authority concerned or the State Government to call for option from the members of the development authorities centralized services for being retired at the age of 58 or 60 years when there is a clear stipulation in Rule 34 of the U.P Development Authorities Centralized Services Rules, 1985 that the members of the centralized services shall be retired at the age of 60 years. Further directions were given to seek instructions as to when and through which instrument/letter/circular, respondent was required to submit such an option and whether any option was furnished by him and accepted by the competent authority or not. Pursuant to the said directions, an affidavit sworn on 09.01.2023 was filed wherein it was specifically indicated that there was no material available to indicate that the respondent had opted for retirement at the age of 58 years. It was claimed that affidavit was produced by the respondent in compliance of part-V of Rule 13(4) of Uttar Pradesh Vikas Pradhikaran Kendriyit Sewanivrattí Labh Nivamawali, 2011. Further submissions were made that in a contempt petition filed by the respondent, in rejoinder affidavit, he has admitted having received benefit of increments after completion of 8 and 19 years of satisfactory services which necessarily means that he agreed to retire at the age of 58 years. Reliance was placed on judgment in High Court of Punjab and Haryana and others Vs. Jagdev Singh (2016) 14 SCC 267. 8. The respondent, appearing in person, made submissions that admittedly the Rules of 1985 provides for retirement at the age of 60- years. The reliance placed on the so-called Government Order dated 12.04.2021 is totally misplaced as the same is only minutes of the meeting. Further the G.O. in this regard has been issued on 14.07.2023, which is after the retirement of the respondent and, therefore, neither the minutes nor the G.O. had any application. 5 Submissions were made that no opportunity of hearing admittedly was provided before deducting the amount and the respondent was forced to submit the affidavit else even the balance amount would not have been paid to him. It was emphasized that judgments in the case of Rafiq Masih (supra) and Thomas Deniel (supra) apply with full force and the judgment in the case of Jagdev Singh (supra) has no application and, therefore, the appeal deserves to be dismissed. 9. We have considered the submissions made by counsel for the appellant and the respondent, who appears in person, and have perused the material available on record. 10. The facts, as noticed hereinbefore, are not in dispute, wherein the appellants were seeking to recover a sum of Rs. 11,83,141/- from the respondent post retirement. The reason indicated has been that as the respondent undertook to seek retirement at the age of 58 years, he was accorded selection grade at expedited intervals compared to in case he would have retired at the age of 60 years and as despite getting the expedited selection grade, he served till the age of 60 years, he was liable to refund the amount. The plea raised before the learned Single Judge was based on the judgments of Hon’ble Supreme Court in the case of Rafiq Masih (supra) and Thomas Deniel (supra), wherein several guidelines have been laid down in relation to the recovery of the amount paid in excess to the emoluments. The learned Single Judge, referring to the said judgments, came to the conclusion that deduction on account of alleged payment of excess salary of five years before the order of recovery was bad in law and that the allegations made against the respondent could not be countenanced in absence of any charge-sheet. The appellants relied on the filing of the undertaking authorizing deduction based on the judgment of Hon’ble Supreme Court in the case of Jagdev Singh (supra) and further submission was made that the learned Single 6 Judge has quashed the order as such instead of stopping the recovery of excess amount paid resulting in the respondent continuing to get the amount to which he was otherwise not entitled. 11. So far as the aspect pertaining to the recovery is concerned, this aspect stands well settled by judgment in the case of Rafiq Masih (supra) and reiterated in the case of Thomas Deniel (supra), wherein it was inter alia laid down that 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 was impermissible in law. The plea raised regarding the affidavit filed by the respondent also cannot be countenanced inasmuch in the case of Jagdev Singh (supra), the undertaking was given at the time when the salary was revised whereas in the present case, the affidavit was obtained from the respondent just before his retirement, i.e., on 18.07.2022 when he was due to retire on 31.07.2022 and as such, the judgment in the case of Jagdev Singh (supra) would have no application to the facts of the present case. 12. Coming to the aspect of the relief granted by learned Single Judge in quashing the order as such is concerned, a co-ordinate Bench of this Court in State of U.P. Vs. Suresh Kumar Tripathi : Writ-A No. 3194 of 2022, decided on 16.07.2024, after referring to judgment of Hon’ble Supreme Court in Sushil Kumar Singhal Vs. Pramukh Sachiv Irrigation Department and others : (2014) 16 SCC 444, came to the conclusion that a pension fixation authority is entitled to inquire into the emoluments of only last 10 months prior to the date of retirement and can examine the records of only 2 years prior thereto, i.e., only the record of 34 months can be examined for the purpose of grant of pension in terms of the Government Order dated 16.01.2007 and, as such, for grant of pension, on account of the purported wrong grant of selection grade prior to the said period of 34 months of the 7 date of retirement cannot be looked into. In view of what has been laid down by Hon’ble Supreme Court in Sushil Kumar Singhal (supra), as followed in the case of Suresh Kumar Tripathi (supra), the said plea raised by the respondent in view of the Government Order dated 16.01.2007, regarding whi6ch, it is not the case of the appellants that the same is not applicable/withdrawn/modified/superseded, also cannot be accepted. 13. In view of the above discussion, there is no substance in the appeal. The same is, therefore, dismissed. Order Date :- 17-02-2025 P.Sri. (Jaspreet Singh, J) (Arun Bhansali, CJ) Digitally signed by :- PUNEET SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench