Neutral Citation No. - 2025:AHC:45652 Court No. - 7 Case :- WRIT - A No. - 19991 of 2007 Petitioner :- Ramesh Babu Saxena Respondent :- State of U.P. and Others Counsel for Petitioner :- Prabhakar Awasthi Counsel for Respondent :- C.S.C. Hon'ble Vikram D. Chauhan,J. 1. Heard learned counsel for the petitioner and learned Standing Counsel for the respondent-State. 2. The present writ petition has been filed with the following prayers :- "i. Issue a suitable writ, order or direction in the nature of Certiorari calling for the records of the case and to quash the impugned recovery of Rs. 103425.00/- which is sought to be made against the petitioner in pursuance of entry in the pension book of the petitioner. ii. Issue a writ, order or direction in the nature of mandamus commanding the respondents to forthwith accord the retiral and pensionary benefits to the petitioner." 3. Learned counsel for the petitioner submits that petitioner was working on the post of Assistant Clerk in the respondent institution and since has retired on 31.12.2005. It is further submitted that after retirement of the petitioner an amount of Rs. 1,03,425/- is alleged to have been recovered and is being recovered as the excess amount paid to the petitioner by including the services of the petitioner during the period of suspension from 30.11.1987 to 21.12.1989. Learned counsel for the petitioner further submits that there was no role of the petitioner for fixation of the salary in the higher pay scale and if there is any fault of employer, the recovery cannot be made from the petitioner in view of the law laid down by the Apex Court in State of Punjab Vs. Rafiq Masih (White Washer) (2015) 4 SCC 334 and in Civil Appeal No. 7115 of 2010 (Thomas Daniel Vs. State of Kerala and others). 4. Learned Standing Counsel for the respondent-State has relied upon paragraph no. 6 of the counter affidavit which is quoted hereinbelow:- "6. That in reply to the contents of paragraph 6 of the writ petition, it is most respectfully submitted that the petitioner has completed 10 years service as Asstt. Clerk on 1.1.1986 and as such the petitioner was granted selection grade by giving one increment in his salary in revised pay scale 1.1.1986 and accordingly, the petitioner was also given an annual increment on 1.1.1987 and thereafter, the petitioner was remained under suspension from 30.11.1987 to 20.12.1989. It is relevant to mention here that by including suspended/punishment period of the petitioner as satisfactory services, the petitioner was granted other selection grade/time bound pay scale, regarding which an audit objection was raised by the Auditor concerned vide letter dated 31.3.2005 and in pursuance thereof, the principal of the institution wrot letter to the petitioner on 7.7.2005 asked the petitioner to get rectified aforesaid irregularity in fixation of his salary and also ensure excess payment made to him and in this respect, several reminder letters were sent to the petitioner on 3.8.2005, 5.12.2005, 22.12.2005, 27.1.2006, 18.2.2006 and 27.3.2006 but nothing has been done on the part of the petitioner and accordingly, in view of letter issued by the Auditor concerned dated 31.3.2005, the D.I.O.S. has passed an order dated 7.3.2006 for amending the pay fixation of the petitioner and for refunding excess payment made to the petitioner, against which the petitioner has filed a representation dated 15.5.2006 to the Joint Director of Education, Bareilly Region, which was rejected by him vide his order dated 26.5.2006, and now the petitioner has filed present writ petition against the recovery proceedings initiated against him. Copy of the Audit Report Dated 31.3.2005 and copy of the order passed by District Inspector of Schools Dated 26.5.2006, is filed herewith as Annexure-CA-1 and CA-2 to this affidavit." 5. Learned Standing Counsel for the respondent-State does not dispute the law laid down by the Apex Court in State of Punjab Vs. Rafiq Masih (White Washer) (2015) 4 SCC 334 and in Civil Appeal No. 7115 of 2010 (Thomas Daniel Vs. State of Kerala and others). 6. Accordingly, in view of the fact that recovery cannot be made from the employee in view of the judgment of the Apex Court in State of Punjab Vs. Rafiq Masih (White Washer) (2015) 4 SCC 334 and in Civil Appeal No. 7115 of 2010 (Thomas Daniel Vs. State of Kerala and others), the impugned recovery of Rs. 1,03,425/- is hereby quashed. However, the petitioner would be only entitled to the lessor amount of pensionary dues to be calculated in accordance with the determination made by the authorities. Since learned counsel for the petitioner has only restricted its argument to the recovery portion of the excess amount paid, the writ petition is partly allowed. The petitioner would be at liberty to approach the respondent authorities if retiral dues are not being made in accordance with the new determination of the salary. Order Date :- 2.4.2025 VMA Digitally signed by :- VISHWA MOHAN ARORA High Court of Judicature at Allahabad