HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW WRIT - A No. - 9662 of 2025 Court No. - 7 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 23.07.2023 and consequential order dated 22.05.2024 for re-fixing of pay-scale of petitioner and consequent recovery from his retiral benefits on the allegation of excess salary having been paid to petitioner during his service period. 3. In pursuance of directions issued earlier, learned State Counsel has been provided instructions dated 16.04.2025, copy of which is taken on record. In para - 2 of instructions, it has been submitted that inadvertently in the impugned order, date of main order has been indicated as 23.07.2023, whereas the actual date is 26.07.2023. 4. In view thereof, liberty is granted to petitioner to amend prayer (i) to incorporate the date of '26.07.2023' in place of '23.07.2023' during the course of day. 5. From perusal of documents brought on record, by means of written instructions, it is evident that same has been passed without affording any opportunity of hearing to petitioner and without even issuing a show cause notice to him. It also appears from perusal of Order No. 772- 73/409(1)/07/Audit dated 26.07.2023 that the order merely indicates amount allegedly paid to petitioner in excess of his salary. The period commencing from the date when such excess payment has been made also does not find any mention in the impugned order. Versus Counsel for Petitioner(s) : Mohammad Tauseef Siddiqui, Shiv Pratap Singh Counsel for Respondent(s) : C.S.C. Dharmdev Yadav .....Petitioner(s) State Of U.P. Thru. Prin. Secy. Ayush Anubhag-I, Lko. And 2 Others .....Respondent(s) 6. It is therefore quite evident that impugned order has been passed only on the basis of audit objection without any independent application of mind by the authority concerned. 7. The aspect as to whether recovery can be effected on account of incorrect fixation of pay-scale has already been dealt with in judgment rendered by Hon'ble the Supreme Court in State of Punjab & others v. Rafiq Masih (White Washer) & others reported in (2015) 4 SCC 334. Relevant portions of the judgment reads 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." WRIA No. 9662 of 2025 2 8. Upon applicability of aforesaid decision of Hon'ble the Supreme Court in the present facts and circumstances, it is evident that petitioner is a Class III employee and deductions have been made from his post-retiral benefits. There is no assertion by opposite parties that alleged incorrect fixation of pay-scale was on account of any fraud or misrepresentation on part of petitioner. It is also evident that prior to making deduction, no opportunity of hearing whatsoever has been provided to petitioner. 9. In view thereof, impugned order dated 26.07.2023 and all other concomitant orders requiring recovery/adjustment to be made from retiral benefits of petitioner are hereby quashed by issuance of a writ in the nature of Certiorari granting liberty to opposite parties to pass orders afresh with regard to pay-fixation but only after affording opportunity of hearing to petitioner and considering his reply. It is also directed that the amount already recovered from petitioner shall be refunded to him within a period of six weeks from the date a certified copy of this order is served upon opposite parties concerned. 10. Consequently, the petition succeeds and is allowed at the admission stage itself. The parties to bear their own costs. October 27, 2025 lakshman WRIA No. 9662 of 2025 3 (Manish Mathur,J.) Digitally signed by :- LAKSHMANA KUMAR TAMMANA High Court of Judicature at Allahabad, Lucknow Bench