HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW WRIT - A No. - 12765 of 2025 Court No. - 7 HON'BLE MANISH MATHUR, J. 1. Heard learned counsel for the petitioner and learned state counsel for opposite parties. 2. Petition has been filed challenging order dated 8th October, 2025, whereby recovery of Rs.18,45,780/- has been directed from family pension of petitioner. 3. It has been submitted that impugned order will make it evident that the same has been passed without affording any opportunity of hearing to petitioner while refixing the pay scale excluding benefits which were earlier made admissible to petitioner. It is submitted that it is not the case of opposite parties that the alleged incorrect fixation was due to any fraud or misrepresentation on the part of petitioner. 4. Learned State Counsel has not been provided written instructions in this matter but submits that impugned order has been passed in view of fact that due to some error, excess payment has been made to petitioner. 5. 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. 6. 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:- Versus Counsel for Petitioner(s) : Sachin Tiwari, Ajay Sharma, Manisha Devi Counsel for Respondent(s) : C.S.C. Shakuntala Devi .....Petitioner(s) State Of U.P. Thru. Addl. Chief Secy. Finance Deptt. Lko. And 3 Others .....Respondent(s) "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." 7. Learned counsel for petitioner has relied upon judgment rendered by Hon'ble the Supreme Court in Sushil Kumar Singhal v. Pramukh Sachiv Irrigation Department and others reported in 2014(2) ESC 271 (SC) in which Hon'ble the Supreme Court was seized of a similar dispute and placing reliance on Government Order dated 16.01.2007 has held that if any mistake had been committed in pay fixation prior to retirement then by virtue of Government Order dated 16.01.2007 neither any salary paid by mistake could have been recovered nor pension could have been reduced since records of 34 months prior to superannuation only could be examined for the purpose of grant of pension. 8. A perusal of judgment rendered by Hon'ble the Supreme Court in Sushil Kumar Singhal(supra) clearly establishes the fact that Government Order dated 16.01.2007 is required to be followed in such cases of dispute. The relevant portion of Government Order dated 16.01.2007 as indicated in the aforesaid judgment reads as follows:- "5. It had been submitted by the learned Counsel appearing for the Appellant employee that the impugned judgment delivered by the High Court is incorrect for the reason that the High Court did not consider the G.O. dated 16.1.2007 bearing No. S-3-35/10-07-101(6)/2005 which reads as under: [1]. Pension Fixation Authority shall inquire into emoluments of only last 10 months prior to retirement and for that examine the records of only two years prior thereto i.e. only the records of 34 months would be examined for the purpose of grant of pension, as has been provided in the aforesaid Government Order dated 13.12.1977. [2]. Pension Allowing Authority shall not be entitled to correct the mistake in determining the pay during service tenure beyond the period prescribed in para (1) WRIA No. 12765 of 2025 2 above. Mistakes in pay determination of an employee can be effectively removed through the process of general inquiry/audit only when the employee is still in service." 9. Hon'ble the Supreme Court in the aforesaid judgment placing reliance on Government Order dated 16.01.2007 has clearly held that in case of mistake committed in pay-fixation during a period of 34 months prior to superannuation is not to be interfered with. Even the submission that interfering in the revision of pay-scale would amount to an employee getting more amount than what he was entitled to was also not accepted by Hon'ble the Supreme Court. Relevant portions of judgment are as follows :- "7. Upon perusal of the aforestated G.O. and the submission made by the learned counsel appearing for the Appellant, it is not in dispute that the Appellant had retired on 31st December, 2003 and at the time of his retirement his salary was Rs. 11,625/- and on the basis of the said salary his pension had been fixed as Rs. 9000/-. Admittedly, if any mistake had been committed in pay fixation, the mistake had been committed in 1986, i.e. much prior to the retirement of the appellant and therefore, by virtue of the aforestated G.O. dated 16th January, 2007, neither any salary paid by mistake to the Appellant could have been recovered nor pension of the Appellant could have been reduced. " "11. The submission made on behalf of the learned Counsel appearing for the Respondent that the Appellant would be getting more amount than what he was entitled to cannot be accepted in view of the policy laid down by the Government in G.O. dated 16th January, 2007. If the Government feels that mistakes are committed very often, it would be open to the Government to change its policy but as far as the G.O. dated 16th January, 2007 is in force, the Respondent-employer could not have passed any order for recovery of the excess salary paid to the Appellant or for reducing pension of the Appellant. " 10. In view of the aforesaid facts, it is amply clear that pay-fixation of an employee such as petitioner prior to 34 months from the date of superannuation is not to be interfered with even if incorrectly fixed as laid down by Hon'ble the Supreme Court in Sushil Kumar Singhal (supra) in view of Government Order dated 16.01.2007. 11. Upon applicability of aforesaid judgment in the present facts and circumstances of the case, it is evident that petitioner's husband superannuated on 31st May, 2005 and has subsequently passed away on 10th May, 2022 whereafter the impugned order has been passed on the ground of incorrect fixation of pay. The aforesaid fact clearly indicates that recovery is now sought to be effected after more than 20 years from family pension. As WRIA No. 12765 of 2025 3 has already been held in the case of Sushil Kumar Singhal (supra) as well as government order dated 16th January, 2007, such recovery can not be effected after such a long time. 12. In view of aforesaid facts and circumstances, impugned order dated 8th October, 2025 is hereby quashed by issuance of a writ in the nature of Certiorari. Recovery made from family pension of petitioner is required to be refunded to her within a period of four weeks from the date a certified copy of this order is served upon authority concerned. 13. Resultantly, the petition succeeds and is allowed. November 3, 2025 prabhat WRIA No. 12765 of 2025 4 (Manish Mathur,J.) Digitally signed by :- PRABHAT KUMAR High Court of Judicature at Allahabad, Lucknow Bench