Neutral Citation No. - 2025:AHC:45802 Court No. - 4 Case :- WRIT - A No. - 12131 of 2022 Petitioner :- Shri Krishna Yadav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Satya Prakash Pandey Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J. 1. Heard Mr. S.P. Pandey, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State. 2. By means of this petition filed under Article 226 of the Constitution, petitioner who has retired from the post of Sub Inspector, U.P. Police, has challenged the order dated 24.01.2022 and 15.04.2022, whereby recovery has been directed from the post-retirement dues of the petitioner to the tune of Rs. 7,54,194/- in terms of Government Order dated 21.11.2016 for approval so granted as a consequence to the wrong pay fixation done by the Office of the respondents which resulted in excess payment of salary to the petitioner. 3. Learned counsel for the petitioner submits that recovery has already been made from the post-retirement dues of the petitioner as the amount so directed to be recovered as mentioned above has already stood recovered in the Government treasury. He submits that such recovery from the post retirement dues of Class-III is bad in law in view of the judgment of Apex Court in the case of State of Punjab and others vs. Rafiq Masih; 2015 4 SCC 334. It is submitted that the above authority has been subsequently followed in the case of Thomas Daniel vs. State of Kerala and others; 2022 3 KLT 307. It is submitted that the petitioner has never misrepresented the authority, nor made any representation at any point of time for pressing for a particular pay fixation, nor at any point of time gave any undertaking at the time of pay fixation so as to entitle the respondents to recover the excess amount, if paid for such alleged wrong pay fixation. It is further submitted that no notice much less a show cause notice was given at any point of time to the petitioner prior to passing of the order of re-fixation and consequential recovery. Sufficient pleadings to this effect have been taken in the writ petition. 4. A Counter affidavit has been filed in the matter in which the only plea taken is that at the time of signing pension papers, the petitioner had given an undertaking that for any wrongful grant of pension he would be ready to refund the amount and except that there is no such mention in the counter affidavit that petitioner at any point of time misrepresented the authority for a particular pay fixation which may have resulted in excess payment of salary. In the counter affidavit, I do not find there to be any paragraph in which pleadings raised in writ petition regarding non compliance of principles of natural justice have come to be denied. All that has been stated is that the petitioner since has been benefited due to wrong pay fixation, he would not be entitled to the excess payment of salary and, therefore, recovery was absolutely justified. 5. Having heard learned counsel for the respective parties and having perused the record, I find that the order of refixation of salary of the petitioner rectifying the previous error of pay fixation is absolutely silent about any notice being ever given to the petitioner requiring his explanation, inasmuch as the order of recovery simply directs for deduction of the amount to be deposited in the Government treasury. Thus the stand taken in the writ petition that no notice or opportunity of hearing was given to the petitioner stands admitted and hence the recovery itself becomes bad for non compliance of principles of natural justice. However, learned counsel of the petitioner could not demonstrate any flaw in the rectification of pay fixation done in the order impugned. Insofar the recovery part is concerned, it is well settled that no such recovery can be made from post retirement dues of a Class-III or IV employee vide paragraph-12 in the case of Rafiq Masih (Supra), it has been held thus:- ""12. 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." " 6. In view of the above, the order of recovery dated 24.01.2022 and 15.04.2022 are hereby quashed. The entire amount deducted from the post retirement dues of the petitioner is directed to be refunded to the petitioner along with interest @ 8%. The refund shall be made within a maximum period of two months from the date of presentation of a certified copy of this order. 7. With the aforesaid observations and directions, the writ petition stands allowed. Order Date :- 2.4.2025 Shiraz Digitally signed by :- SHIRAZ ALI High Court of Judicature at Allahabad