Neutral Citation No. - 2025:AHC-LKO:37213 Court No. - 5 Case :- WRIT - A No. - 8133 of 2024 Petitioner :- Shyam Sundar And Another Respondent :- State Of U.P. Thru. Addl. Chief Secy./ Prin. Secy., Pichharavarg Kalyan Vibhag Lko. And 2 Others Counsel for Petitioner :- Dinesh Kumar Verma Counsel for Respondent :- C.S.C.,Nirankar Singh Hon'ble Abdul Moin,J. 1. Counter affidavit filed today is taken on record. Cost of Rs.1,000/- has been paid by Shri Nirankar Singh, learned counsel appearing for the respondents-Corporation, which has been received by the learned counsel for the petitioner on behalf of the petitioner. 2. Considering the short question of law involved in the writ petition, learned counsel for the petitioner states that he does not intend to file rejoinder affidavit. As such the Court proceeds to hear and decide the matter. 3. Under challenge are the note sheets dated 19.06.2023 and 27.06.2023, copies of which are annexures-1 & 2 to the writ petition, whereby the respondents have adjusted an amount of Rs.1,82,205/- from each of the petitioners while making payment of arrears of the 6th Pay Commission. 4. Contention of the learned counsel for the petitioners is that both the petitioners are Class III employees working on the post of Driver. 5. While making payment towards arrears of 6th Pay Commission, aforesaid amount has been adjusted as is apparent from a perusal of the note sheets which have been filed as annexure-1 & 2 to the petition. 6. The argument of the learned counsel for the petitioners is that prior to adjustment of the aforesaid amount neither any opportunity of hearing had been given nor the said adjustment can be said to be in accordance with law as laid down by the Hon'ble Supreme Court in the case of State of Punjab v. Rafiq Masih : (2015) 4 SCC 334. 7. On the other hand, learned counsel appearing for the respondents- Corporation has argued that certain amount had been given erroneously to the petitioners as arrears of incentives, which upon being discovered has been adjusted from the arrears of 6th Pay Commission, which has been paid to the petitioners. Once the petitioners are not entitled to the aforesaid amount that has been paid in excess to them consequently no error has been committed by the respondents-Corporation while passing the orders for recovering the aforesaid amount towards arrears that had been given to them. 8. Further argument of Shri Nirankar Singh, learned counsel appearing for the Corporation is that the petitioners were neither entitled to the aforesaid amount which has been paid in excess to them nor the post against which the aforesaid amount had been paid to the petitioners was ever created in the Corporation. Thus, no error has been committed by the respondents-Corporation while adjusting the aforesaid amount. 9. Aforesaid argument of Shri Nirankar Singh, learned counsel appearing for the Corporation is found to be patently fallacious considering the fact that admittedly no opportunity of hearing has been accorded to the petitioners while adjusting the aforesaid amount from arrears of 6th Pay Commission as has been paid to them. 10. Apart from the above, another aspect of the matter is that the Hon'ble Supreme Court in the case of Rafiq Masih (supra) has categorically held that though 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 but recovery from the employees belonging to Class III and Class IV service or Group C and Group D service as well as recovery from such employees who are due to retire within one year of the order of recovery would be impermissible. 11. For the sake of convenience, relevant observations of the Hon'ble Supreme Court in the case of Rafiq Masih (supra) are reproduced hereunder:- "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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. ...." 12. Accordingly, considering the law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) and the petitioners being admittedly Class III employees and being on the verge of the retirement which is due on 31.08.2025 as specifically stated by the learned counsel for the petitioners consequently the amount of Rs.1,82,205/- respectively as adjusted from the petitioners cannot be said to be in accordance with law. 13. Accordingly, the writ petition is allowed. A writ of mandamus is issued commanding the respondents to refund the amount of Rs.1,82,205/- respectively to the petitioners. Let such an amount be paid within a period of 8 weeks from the date of receipt of a certified copy of this order. Order Date :- 2.7.2025 prateek Digitally signed by :- PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench