JUDGMENT : Ranjan Sharma, J. Petitioner-Dev Raj, a retired Yardmaster, from the service of Respondent-Corporation, has come up before this Court, seeking the following reliefs:- “i)  To quash the order of the authority where by some recoveries were done from the pensionary benefits, without giving opportunity of hearing to the petitioner vide Annexure P-5. ii)  That the respondent corporation may further be directed to grant the benefits of time bound promotional scale [3 ACP’s after completion of his 8, 16 and 24 service] as and when due to the petitioner in accordance with scheme the with all consequential benefits and pay be fixed accordingly. iii). To grant the petitioner interest on delayed  payments  and  also  refund the Rs. 9 thousand with interest, which has been recovered from the pensionary benefit without informing the petitioner. (iv). To re-regulate the pay of the petitioner after setting aside the penalties which were imposed upon the petitioner without giving show cause notice/without holding inquiries that to after retirement. That the  respondents  may  very kindly be directed to produce the entire record pertaining to the case of the petitioner for the kind perusal of this Hon’ble Court. (v). That the respondent No.1 may be directed  to  decide  the  representation of the petitioner dated 23.12.2012, Annexure P-7, in a time bound manner.” 2. At the very outset, Learned Senior Counsel, on Instructions of the petitioner, who is present in Court states that she does not intent to assail prayer (ii) whereby, the ACP benefits on completion of 8, 16 and 24 years of service were released to the petitioner in one go on 23.11.2007, [Annexure P-2] in view of the stand in reply-affidavit that these benefits were not released earlier due to pendency of disciplinary proceedings and the penalties imposed thereon and due to currency-operation of penalties and  after  the  culmination  of  these  penalties,  the ACP benefits were released to the petitioner on 23.11.2007, [Annexure P-2]. FACTUAL MATRIX: 3. Grievance  of  the  petitioner  is  that  he was  engaged  as  Driver,  on  daily  wage  basis,  in the Respondent-Corporation in the year 1977. He was regularized as a Driver on 01.06.1978. FACTUAL MATRIX: 3. Grievance  of  the  petitioner  is  that  he was  engaged  as  Driver,  on  daily  wage  basis,  in the Respondent-Corporation in the year 1977. He was regularized as a Driver on 01.06.1978. It is averred that though he completed 8 years of service as Driver on 01.06.1986 and had completed 16 years of service on 01.06.1996 and had completed 24  years  of  service  as  a  Driver  on  01.06.2004 and on completion of 8, 16 and 24 years of service the ACP benefits become due but these benefits were given belatedly to the petitioner, in one go, on  23.11.2007,  [Annexure  P-2]. However,  in  terms of the Statement made by Learned Senior Counsel, on  instructions  of  the  petitioner,  who  is  present in Court, the prayer of the petitioner for ACP from earlier due date(s) is not pressed, in these proceedings. 3(i). Another  grievance  is  that  the  petitioner was promoted from the post of Driver to the post of  Yard  Master  on  01.02.2008. Upon  promotion  as Yard Master, the petitioner joined on 14.02.2008 and in terms of pay fixation rules, the petitioner opted for pay fixation after receiving the annual increments  in lower post of Driver  and  thereafter to get the promotional increment as Yard Master. Based on such option, the Regional Manager of Corporation at Shimla fixed the pay of petitioner, on promotion, as Yard Master at Rs. 18,950/- w.e.f. 01.12.2008, in terms of the Order dated 31.12.2009, [Annexure  P-3]. Based  on  aforesaid  pay  fixation, the petitioner was granted annual increments due therefrom and the petitioner retired from service as Yard Master on 31.03.2011. After superannuation, the Regional Manager of Corporation issued an order on 11.07.2011, [Annexure P-4] reducing the basic pay of petitioner as Yard Master from Rs 18,950/- as on 01.12.2008 to Rs 18,550/-. It is averred that based on such reduced basic pay, Leave Encashment of Rs. 2,74,609/- and DCRG of Rs.4,71,075/- has been released in October, 2011. Even, the pension was reduced and an amount of Rs. 9000/-was recovered therefrom. The retiral benefits were released belatedly without any fault attributable to him. Order of reduction dated 11.07.2011, [Annexure P-4], reducing basic pay retrospectively w.e.f. 01.12.2008 has been assailed by the petitioner in the instant proceedings. 2,74,609/- and DCRG of Rs.4,71,075/- has been released in October, 2011. Even, the pension was reduced and an amount of Rs. 9000/-was recovered therefrom. The retiral benefits were released belatedly without any fault attributable to him. Order of reduction dated 11.07.2011, [Annexure P-4], reducing basic pay retrospectively w.e.f. 01.12.2008 has been assailed by the petitioner in the instant proceedings. Petitioner submitted a representation on 14.11.2011  for  re-fixing  his  pay  but,  the  same was turned down by Regional Manager, Rural Unit Dhalli, Shimla on 13.03.2012, [Annexure P-5], on the ground that the pay fixation order dated 11.07.2011 [Annexure P-4]  was issued reducing the basic pay in  view  of the  fact  that  the  Corporation  had issued any order of penalty on 05.02.1982, which was not given effect to by Regional Manager Hamirpur, at  the  relevant  time  and  in  order  to  give  effect to the aforesaid order passed in 1982, the basic pay of the petitioner was reduced. The petitioner has prayed for re-fixation of pay after setting aside of the order dated 11.07.2011 [Annexure P-4] reducing the basic pay retrospectively and in passing the rejection orders dated 13.03.2012 [Annexure P-5], in the instant proceedings. ERRONEOUS REPLY AFFIDAVIT -WITHDRAWN: 4. Pursuant to  issuance  of  notice, the Respondent-Corporation is stated to have filed  a reply, in the case of one Sh. Dev Raj S/o late Sh. Raghunandan, who is another incumbent. The aforesaid reply does not relate to the petitioner and in  view of  the  prayer  made  by  Learned  Counsel for Corporation, the aforesaid reply was permitted to be withdrawn, in terms of orders dated 27.11.2021, passed by this Court. STAND OF CORPORATION IN REPLY-AFFIDAVIT IN INSTANT CASE: 4(i). In the instant  case, Respondents No. 1 and 2 have filed Reply-Affidavit of Divisional Manager [Legal] of Corporation, Shimla dated 23.12.2021. 4(ii). Perusal of Para 3 of Reply-Affidavit indicates that  ACP  benefits  due  on  completion  of  8,  16 and 24 years of continuous service was allowed to the petitioner on recommendations of Departmental Promotion Committee meeting held on 23.11.2007. Reply-Affidavit indicates that prior to 23.11.2007, the  departmental  proceedings  and  penalties  were in  operation  against  the  petitioner. It  is  further averred that for the purposes of grant of ACP, the norms which are followable for promotion are to apply. Reply-Affidavit indicates that prior to 23.11.2007, the  departmental  proceedings  and  penalties  were in  operation  against  the  petitioner. It  is  further averred that for the purposes of grant of ACP, the norms which are followable for promotion are to apply. In these circumstances, Reply-Affidavit indicates that once departmental proceedings were pending and the penalty was in operation against the petitioner up to the year 2007, therefore, it is only after cessation of departmental proceedings and culmination of the earlier penalties, the ACP benefits due on completion of 8, 16 and 24 years of service were released to the petitioner on the recommendations of Departmental Promotion Committee 23.11.2007. Learned Senior Counsel for the petitioner further states that the penalties imposed against the petitioner including  the  last  penalty  of  reduction  of  pay scale for 2 years w.e.f. 09.02.2004 was over on 09.02.2006. Reply-Affidavit indicates that based on the Disciplinary Proceedings and the penalties which were operative earlier, the overall service records were adjudged to be not good and, therefore, the ACP benefits were not released to the petitioner earlier. However, after the effect of the penalties was  over,  the  DPC  was  convened  on  23.11.2007 and the ACP benefits were released to the petitioner in accordance with law. 4(iii). Para 6 of the Reply-Affidavit indicates that another penalty order was passed on 05.02.1982 but since the aforesaid penalty order was not given effect  to  earlier,  therefore,  the  same  was  decided to be given effect to by re-fixing the pay after superannuation of the petitioner on 31.03.2011. In this backdrop, a prayer has been made for dismissal of the writ petition. REBUTTAL BY PETITIONER: 5. Petitioner filed a rejoinder with a specific stand that even if a penalty was imposed against the petitioner on 05.02.1982 regarding stoppage of one increment for a period of six months vide order dated 05.02.1982, then, the aforesaid order of stoppage of increments for six months, could not have been given effect to by the respondents, after superannuation of the petitioner on 31.03.2011. It is further averred that the action of Respondent- Corporation in giving effect to the penalty order dated 05.02.1982 after his superannuation in 2011, cannot be the ground to refix and reduce the basic pay of the petitioner, on the promotional post of Yard Master, so as to reduce the basic pay from Rs.18,950/-  to  Rs.18,550/-  w.e.f.  01/14.02.2008  as in Annexure P-3 and Annexure P-4, retrospectively, when,  such  reduction  has  visited  the  petitioner with civil consequences. Moreover, once the petitioner has attained the status of a pensioner then, in such an event, the re-fixation of pay has resulted in reduction in pension and in giving less retiral benefits i.e. Leave Encashment and DCRG in the month of October 2011. 6. Heard, Ms. Sunita Sharma, Learned Senior Counsel assisted by Mr. Dhananjay Sharma, Advocate, for the petitioner and Mr. B.N. Sharma, Advocate, for Respondent-Corporation. ANALYSIS: 7. Taking into account the entirety of facts and circumstances, this Court is of the considered opinion that the Impugned Order dated 11.07.2011 [Annexure P-4] reducing the basic pay of petitioner as Yard Master from Rs. 18,950/- to Rs 18,550/- w.e.f. 01/14.02.2008 does not satisfy the test of judicial scrutiny, for the following reasons:- 7(i). Petitioner joined service as a Driver on daily wage basis in the year 1977 and his services were regularized on 01.06.1978. The petitioner was granted  the  ACP  benefits,  which  were  due  to him on completion of 8, 16 and 24 years of service after culmination of departmental proceedings and the effect of penalties imposed in terms of Order dated  26.12.2009  w.e.f.  23.11.2007. After  grant of ACP  benefits w.e.f. 23.11.2007, the petitioner was promoted as Yard Master on 01/14.2.2008. After  promotion  as  Yard  Master,  the  pay  was fixed, on promotion after availing annual increment in lower post and promotional increment thereafter as per Office Order on 31.12.2009, [Annexure P-3] whereby, the pay of the petitioner as a Yard Master was fixed on promotion at Rs 18950/- w.e.f. 01.12.2008. Based on this basic pay of Rs 18950/- as on 1/14.12.2008 in the Order dated 31.12.2009 [Annexure P-3], the Respondents granted the annual increments  and  he  superannuated  from  service on 31.3.2011. After superannuation on 31.03.2011, the  Respondents-Corporation  issued  another  order on 11.07.2011, [Annexure P-4] reducing the basic pay as Yard Master, on promotion from Rs 18,950/- to Rs 18550/- w.e.f. 01.12.2008 illegally. REDUCTION IN BASIC PAY: 7(ii). After superannuation on 31.03.2011, the  Respondents-Corporation  issued  another  order on 11.07.2011, [Annexure P-4] reducing the basic pay as Yard Master, on promotion from Rs 18,950/- to Rs 18550/- w.e.f. 01.12.2008 illegally. REDUCTION IN BASIC PAY: 7(ii). The order dated 11.07.2011, [Annexure P-4], reducing the basic pay of petitioner, on promotion as Yardmaster from Rs.18,950/- to Rs.18,550/- w.e.f. 01.12.1998 was admittedly issued without giving prior notice, without giving personal hearing, without seeking explanation from the petitioner  and such an order has certainly visited the petitioner with civil consequences. 7(ii-a). The Hon’ble Supreme Court quashed the reduction in basic pay without giving an opportunity of hearing to an employee, in AIR 1974 Supreme Court 1889, titled as Divisional Superintendent, Eastern Railway Dinapur and others, versus L.N. Kashri and others, in following terms:- “6. The respondents were confirmed the scale of Rs.110-180. The appellants having fixed the scale and confirmed the respondents could not reduce the scale without giving any opportunity to the respondents to be heard. Furthermore, the respondents on confirmation became entitled to rights to the post and to the scale of pay fixed by the Board.” 7(ii-b). While dealing with an identical issue in 2024 SCC Online SC 1909, titled as Jagdish Prasad Singh versus State of Bihar and Others, the Hon’ble Supreme Court has outlined that after superannuation, the basic pay could not be reduced and even recovery cannot be affected without complying with the principles of natural justice and the adversial order suffers from vice of non-adherence to the principle of natural justice, in the following terms: “5. The  appellant  superannuated  from the post of ADSO on 31st January, 2001. At the time of retirement, the last  pay  drawn by the  appellant was Rs.10500 in the pay scale of Rs. 6500-10500 with admissible emoluments. As per the Bihar Pension Rules of 1950, his pension was calculated at 50% of the average emoluments and was quantified at Rs.5247 per month. Accordingly, the pension as above was disbursed to the appellant from the date of his retirement. 6. 6500-10500 with admissible emoluments. As per the Bihar Pension Rules of 1950, his pension was calculated at 50% of the average emoluments and was quantified at Rs.5247 per month. Accordingly, the pension as above was disbursed to the appellant from the date of his retirement. 6. It seems that the Accountant General, State of Bihar, raised an objection dated 28th January, 2003, regarding the  promotion  accorded  to  the appellant on 10th March, 1991 with a further remark that the promotion given to the appellant on 10th March, 1991 would become ineffective after 1st January, 1996 in view of the Government Resolution dated 8th February, 1999 and, thus, the pay scale of the appellant would have to be revised and reduced to match that of the lower post, i.e., the Marketing Officer. 18. At the outset, we may note that the fact regarding the appellant having been accorded time bound promotion from the post of Marketing Officer in Junior Selection Grade to Senior Selection Grade, Marketing Officer-cum- Assistant District Supply Officer (ADSO) as per his entitlement on 10th March 1991 is not in dispute. It is not the case of the respondents that the said promotion suffered from any irregularity or was given against the rules and regulations. The Resolution dated 19th January, 1991 placed on record as Annexure P-1 indicates that the next promotional  channel  from  the post of the Lower Senior Grade (Marketing Officer) was to the post of Upper Senior Grade(Upper Marketing Officer). Earlier, the pay scale for the post of Lower Senior Grade (Marketing Officer) was fixed at Rs.1800- 3330 whereas for the promotional post i.e. Upper Senior Grade(Marketing Officer), the applicable pay scale was fixed at Rs. 2000-3800. The appellant having been duly promoted to the post of Upper Senior  Grade(Upper  Marketing  Officer) w.e.f. 10th March, 1991 was entitled to and was rightly given the pay scale of the promotional post. Pursuant to the 5th Pay Commission being applied, the  Government  of  Bihar  issued a Resolution dated 8th February, 1999, whereby the pay scale applicable to the post of Upper Senior Grade (Upper Marketing Officer) was revised from  Rs.2000-3800  to  Rs.6500-10500. The paragraph 11 (supra) of the said Government Resolution specifically protects the promotions granted to the employees prior to 31st December, 1995. The paragraph 11 (supra) of the said Government Resolution specifically protects the promotions granted to the employees prior to 31st December, 1995. Only  those  employees  who were not promoted by the cut-off date, i.e.,  31st  December,  1995  would  get a notional promotion and consequent rise in pay scale which would come to an end w.e.f. 31st December, 1995. Apparently thus, the appellant could not have been put to a disadvantage and his pay scale could not have been reduced prospectively by virtue of the said Resolution. Even if paragraph 11(supra) was not in existence, the appellant could not have been subjected to eight years after his retirement because there was  no  illegality  in  conferment  of the revised pay scale to the appellant which was an action taken by the State Government as per the applicable rules and regulations. 26. The learned Single Judge as well as the Division Bench of the High Court of  Patna  also  seem  to  have  fallen in the same error. In addition thereto, we are of the view that any step of reduction in the pay scale and recovery from a Government employee would tantamount to a punitive action because the same has drastic civil as well as evil consequences. Thus, no such action could have been taken against the appellant, more particularly, because he had been promoted  as  an  ADSO,  while  drawing the pay scale of Rs.6500-10500 applicable to the post, way back on 10th March, 1991 and had also superannuated eight years ago before the recovery notice dated 15th April, 2009 was issued. The impugned action directing reduction of pay scale and recovery of the excess amount is grossly arbitrary and illegal and also suffers from the vice of non-adherence to the principles of natural justice and hence, the same cannot be sustained.” That being so, the Impugned Order dated 11.07.2011,  [Annexure  P-4],  reducing  the  basic  pay w.e.f. 01.12.2008 retrospectively had visited the petitioner with civil consequences, which not be so done, by giving a complete go-bye to the principles of natural justice and the law. These facts are sufficient to interdict the Impugned Orders dated 11.07.2011, [Annexure P-4] reducing the basic pay of the petitioner on the promotional post of Yard Master retrospectively. DOWNGRADING AND LOWERING BASIC PAY IS PUNITIVE: 7(iii). Instant case needs to be tested from another angle also. These facts are sufficient to interdict the Impugned Orders dated 11.07.2011, [Annexure P-4] reducing the basic pay of the petitioner on the promotional post of Yard Master retrospectively. DOWNGRADING AND LOWERING BASIC PAY IS PUNITIVE: 7(iii). Instant case needs to be tested from another angle also. On promotion as Yardmaster, once the basic pay of the petitioner was fixed at Rs  18950/-w.e.f.  01.02.2008,  in  terms  of  order dated 31.12.2009, [Annexure P-3] then, the said basic pay could not be reduced to Rs 18,550/-on 11.07.2011, [Annexure P-4] for the reason, that reducing or lowering or downgrading stages of pay amounts to imposing a major penalty on the petitioner,  in  terms  of  Rule  11(v)  &  (vi)  of  the CCS [CCA] Rules. Reduction to a lower stage in time scale of pay, grade or post could not have been given effect too, without giving a prior notice and  without  complying  with  procedural  safeguards in  Rule  14  of  the  CCS  [CCA]  Rules,  which  has not been complied with in instant case. Reduction or  downgrading  or  lowering  the  stages  of  basic pay in time-scale tantamount to imposing penalty and  such  reduction  cannot  be  imposed  by  giving a  complete  go-bye  to  mandatory  statutory  rules and  therefore,  the  non-compliance  and  infraction of statutory Rules is sufficient to interdict the orders dated 11.07.2011, [Annexure P-4]. EARLIER PENALITY OF 1982 CANNOT BE SOUGHT TO BE ENFORCED AFTER 28 YEARS AGAINST PETITIONER-RETIREE: 7(iv). Now  in  order  to  test  the  veracity  of the rejection order dated 13.03.2012, [Annexure P-5], the stand of Respondent-Corporation is that the basic  pay  as  Yardmaster  has  been  reduced  just to give effect to an earlier penalty order dated 05.02.1982, passed by Regional Manager of Corporation at Hamirpur but which was not given effect too earlier. Perusal of the records including the original service  book  as  produced  before  this  today, reveals that in terms of orders dated 05.02.1982, even  though  one  annual  increment  was  stopped for  a  period  of  six  months  and  this  order  of 1982  ought  to  have  culminated  and  put  to  an end in the year 1982 itself. The Respondents could not implement the orders passed in 1982 after the superannuation of the petitioner on 31.03.2011 so as  to  result  in  reducing  the  basic  pay  from Rs. 18,950/- to Rs.18,550/- on 11.07.2011, [Annexure P- 4]. The Respondents could not implement the orders passed in 1982 after the superannuation of the petitioner on 31.03.2011 so as  to  result  in  reducing  the  basic  pay  from Rs. 18,950/- to Rs.18,550/- on 11.07.2011, [Annexure P- 4]. The  inaction  or  lethargy  of  Corporation  and its officials, in sleeping over the order of penalty passed in 1982 on 05.02.1982 till superannuation on  31.03.2011  and  in  waking  up  from  slumber after superannuation on 11.07.2011, [Annexure P-4] cannot be made the basis for reducing the basic pay after about 28-29 years, at a highly belated stage. Further,  once  the  passing  of  the  orders of penalty of 1982 was in the knowledge of the Respondents but the officials concerned acquiesced in their act and conduct, in sleeping over the matter,  by  not giving  effect  to  the orders  passed in the year 1982 itself or within a reasonable period thereafter then, such an order cannot be permitted to be re-invoked/reinforced or implemented to  the  prejudice  of  the  petitioner  after  28-29 years. The principle of acquiescence and waiver disentitles the respondents to seek implementation of penalty order of 1982 by putting the petitioner to a disadvantageous position, leads to hardships and is iniquitous and arbitrary after 28-29 years, in view of the mandate of the Hon’ble Supreme Court in Union of India and others versus N. Murugesan and others (2022) 2 SCC 25 , in the following terms:- “25. A defence of laches can only be allowed when there is no statutory bar. The question  as  to  whether  there  exists a  clear  case  of  laches  on  the  part of a person seeking a remedy is one of fact and so also that of prejudice. The said principle may not have any application when the existence of fraud is pleaded and proved by the other side. To determine the difference between the concept of laches and acquiescence is that, in a case involving mere laches, the principle of estoppel would apply to all the defences that are available to a party. Therefore, a defendant can succeed on the various grounds raised by the plaintiff, while an  issue  concerned  alone  would be amenable to acquiescence. ACQUIESCENCE: 24. We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other. Acquiescence would mean  a  tacit  or  passive  acceptance. It  is  implied  and  reluctant  consent to an act. ACQUIESCENCE: 24. We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other. Acquiescence would mean  a  tacit  or  passive  acceptance. It  is  implied  and  reluctant  consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place. As  a  consequence,  it  reintroduces a new implied agreement between the parties. Once such a situation arises, it is not open to the party that acquiesced  itself  to  insist  upon  the compliance of the original terms. Hence, what  is  essential,  is  the  conduct of the parties. We only dealt with the distinction involving a mere acquiescence. When acquiescence is followed by delay, it may become laches. Here  again,  we  are  inclined to hold that the concept of acquiescence is to be seen on a case-to-case basis. APPROBATE AND REPROBATE: 26. These phrases are borrowed from the Scott’s law. They would only mean that no party can be allowed to accept and reject the same thing, and thus  one  cannot  blow  hot  and cold. The principle behind the doctrine of  election  is  inbuilt  in  the  concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects  to  an  instrument,  he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys  the  one  part  fully  and  on near completion of the said enjoyment, thereafter  questions  the  other  part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and  his  presumption  of  knowledge while confirming an offer through his acceptance unconditionally. CURTAILING LEGAL ENTITLEMENT OF PENSION IMPERMISSIBLE: 7(v). Action  of  the  Respondents  in  reducing the basic pay on 11.07.2011 [Annexure P-4] as a Yardmaster after his retirement on 31.03.2011 w.e.f. 01.02.2008  has  resulted  in  giving  less  pension due to reduction or downgrading the basic pay from Rs. 18950/- as on 1/12.01.2008, which had reached  Rs.20,110/-  as  on  1.12.2010  [as  in  Part A at Page 13 of paper book], to Rs.18,550/- as on 1/14.02.2008  and  Rs.19,690/-  as  on  01.12.2010 [Part B at page 13]. The Respondents have given pension and retiral benefits of Gratuity and Leave Encashment on such reduced pension. Notably, once petitioner had attained the status of a pensioner on 31.03.2011 and neither any departmental nor any criminal proceedings were pending on the date of retirement then, reduction in basic pay after retirement [as in order dated 11.07.2011, Annexure P-4] and based on reduced pay, the grant of less pension and  less  gratuity  without  complying  with  Rule  9 of the CCS [Pension] Rules cannot stand the test of judicial scrutiny. Likewise, the grant of less Leave Encashment in violation of Rule 39(3) of CCS [Pension] Rules, as applicable also cannot sustain. The petitioner had a right to receive the retiral benefits including pension and Gratuity and Leave Encashment on such basic pay. The adversial order  has  resulted  in  depriving  the  petitioner  of his  right  to  receive  higher  pension  and  other retiral benefits due, in accordance with Rules. The Hon’ble Supreme Court in 2025 SCC Online SC 1442 in Civil Appeal No.9496 of 2025, [arising out of SLP(C) No.18606 of 2025] titled Vijay Kumar versus Central Bank of India & Ors. has outlined  that  the  pension  is  not  a  discretion  of the employer but a valuable right to property which cannot be curtailed or denied without any authority of law. Discretion to grant pension at reduced rate cannot be resorted to without following the due process of law as well as the procedural safeguards, in the following terms: “17. has outlined  that  the  pension  is  not  a  discretion  of the employer but a valuable right to property which cannot be curtailed or denied without any authority of law. Discretion to grant pension at reduced rate cannot be resorted to without following the due process of law as well as the procedural safeguards, in the following terms: “17. There is no cavil that pension is not a  discretion  of  the  employer  but a valuable right to property and can be  denied  only  through authority of law. When an authority is vested with the discretion to grant pension less than full pension admissible under the Pension Regulations, all procedural safeguards in favour of the employee including prior consultation must be strictly followed.” REFIXATION OF PENSION UNTENABLE: 7(vi). Perusal of Rule 70 of the CCS (Pension) Rules  provides  that  the  pension  cannot  be  reduced /refixed except in case of clerical error. In the instant case, the reduction in pension is not relatable to any clerical error, but such reduction is  an  off-shot  of  the  lethargy  and  inaction  of the Respondent-Corporation in not giving effect to the order of penalty imposed in 1982, which is now sought to be implemented, after a gap of about 28-29 years. In these circumstances, once based on higher basic pay, the petitioner is entitled for pension then, the denial of rightful entitlement for pension, on the basis of last pay drawn, cannot be  denied  and  taken  away  without  authority  of law as in this case. Accordingly, the reduction in basic  pay,  leading  to  grant  less  pension  and  less retiral benefit(s) cannot stand the test of judicial scrutiny and deprivation and curtailment of pension and other retiral benefits, without complying with the statutory safeguards in Rule 9 of the CCS (Pension) Rules and Rule 39(3) of the CCS (Leave) Rules. The infraction and non-compliance of these statutory safeguards, reveals inherent violation of Article  300-A,  resulting  in depriving  the petitioner of his legal entitlements of pension and other retiral benefits without any authority of law. Accordingly, the prejudicial Impugned Orders are quashed and set-aside. RECOVERY FROM CLASS-III EMPLOYEE AFTER SUPERANNUATION IMPERMISSIBLE: 7(vii). Learned Senior Counsel states that an amount of Rs. 9000/- was deducted by Respondent- Corporation  from  the  pensionary  benefits  in  view of averments in Para 7 and 11(e) of writ petition. Accordingly, the prejudicial Impugned Orders are quashed and set-aside. RECOVERY FROM CLASS-III EMPLOYEE AFTER SUPERANNUATION IMPERMISSIBLE: 7(vii). Learned Senior Counsel states that an amount of Rs. 9000/- was deducted by Respondent- Corporation  from  the  pensionary  benefits  in  view of averments in Para 7 and 11(e) of writ petition. In Reply-Affidavit, the Respondent-Corporation has not denied the factum of alleged recovery having been made from the petitioner. In these circumstances, the recovery of Rs. 9000/-,  could  not  have  been  affected  from  the petitioner without complying with the principles of natural justice, i.e. without issuing a prior notice, without affording a personal hearing and without complying with Rule 9 of the CCS [Pension] Rules and Rule 39 of CCS (Leaves) Rules. Moreover, the recovery from retiral benefits could only be affected, in case, any departmental or criminal proceedings were  pending  on  the  date  of  retirement  against an employee. No such eventualities exist in instant case. Further, it is not the case of the Corporation that alleged recovery of Rs 9000/-was attributable to any misrepresentation or fraud by the petitioner. Inabsence of any established misrepresentation or fraud, the alleged recovery from the petitioner, who is a Class-III Employee {retired Yardmaster} is not sustainable. 7(vii-a). In terms of the mandate of law of the Hon’ble Supreme Court in State of Punjab and Others versus Rafiq Masih, 2015 (4) SCC 334 , prohibits recovery from employee in the following terms:- 18. (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(vii-b). (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(vii-b). In a similar fact-situation, recovery after superannuation was quashed by the Hon’ble Supreme Court in 2025 SCC Online SC 724, titled as Jogeswar Sahoo and Others versus District Judge, Cuttack and Others, in the following terms: “9. This Court has consistently taken the view that if the excess amount was not paid on account of any misrepresentation  or  fraud  on  the part of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance  or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous, such excess payments of emoluments or allowances are  not  recoverable. It  is  held  that such relief against the recovery is not because of any right of the employee but in equity, exercising judicial discretion to provide relief to the employee from the hardship that will be caused if the recovery is ordered. 11. In Col. B.J. Akkara (Retd.) v. Government of India this Court considered an identical question as under: “27. The last question to be considered is whether relief should be  granted  against  the  recovery of the excess payments made on account of the wrong interpretation / understanding of the circular dated 7-6-1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India [ (1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121], Union of India v. M. Bhaskar [(1996)  4  SCC  416  :  1996  SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [ (1997) 6 SCC 139 : 1997 SCC (L&S) 1652]): (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/  allowance  or  on  the  basis of a particular interpretation of rule/ order, which is subsequently found to be erroneous. (b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/  allowance  or  on  the  basis of a particular interpretation of rule/ order, which is subsequently found to be erroneous. 28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any  right  in  the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery. 29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for  purposes  of  stepping  up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7-6-1999 till the issue of the clarificatory circular dated 11-9-2001. Insofar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made.” 7(vii-c). Insofar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made.” 7(vii-c). In 2025 SCC Online SC 2042, titled Panchayat & Rural Development Department and others versus Santosh Kumar Shrivastava, the Hon’ble Supreme Court has interdicted the similar recovery made from retiral benefits without resorting to the procedural safeguards [without giving prior notice, without affording a personal hearing and by resorting to re-fixation of pension etc. after retirement] in the following terms: “8. It has long been held that the payment of retiral dues/gratuity/pension is not a matter of bounty but in fact a matter of right of every employee, should there be some rule or statute from where the right may originate. [See: PEPSU RTC v. Mangal Singh and U.P. Roadways Retired Officials & Officers Assn. v. State of U.P.] 9. This makes it clear that the Courts below were correct in holding that there was no justification for the appellants having not paid the dues rightly belonging to the respondent to him even after the passage of almost three years after the retirement. We may also observe that there was no occasion whatsoever for the Appellant to have conducted re-fixation of pay after retirement of the Respondent and then proceed to recover  the  excess  amount from the retiral dues payable to the latter. 11. In essence, what the Appellants did before the High Court was to blame the Respondent for the delay in him receiving benefits rightly owed to him. We cannot accept this position. Pension and other retiral dues are benefits that have been earned by an employee due to the service rendered to the institution paying the pension/other retirement benefits. The grant of a residence corresponds to the position held at the time by such employee. The width of these two aspects is separate and distinct. Pension and retirement benefits accrue from a much wider base as the culmination of all efforts,  across  employment  whereas the latter is only for a limited time, till such a person is holding that position. The  latter  cannot  obstruct or defeat the former. The Appellant cannot  be  allowed  to  withhold a duly accrued right on this count. Pension and retirement benefits accrue from a much wider base as the culmination of all efforts,  across  employment  whereas the latter is only for a limited time, till such a person is holding that position. The  latter  cannot  obstruct or defeat the former. The Appellant cannot  be  allowed  to  withhold a duly accrued right on this count. In above backdrop, the Impugned Order dated 11.07.2011 [Annexure P-4] ordering recovery against  the  petitioner  cannot  be  permitted,  in view of the fact that the amount which is sought to be recovered was neither relatable to any misrepresentation  on  the  part  of  the  petitioner nor the aforesaid payment based on a wrong  disbursement of amount, which was spent or was an amount which was not liable to be spent as per Rule/Order. In these circumstances, impugned recovery, against the petitioner is not sustainable, as the aforesaid order shall lead to hardship and that too without the aforesaid allegation attributable to recovery to have been shifted against the petitioner after following due process of law in the departmental proceedings and that too when aforesaid recovery was  ordered  without  affording  an  opportunity  to the petitioner, which was not initiated by the respondents. 8. No other point was argued/pressed. DIRECTIONS: 9. In view of the above discussion and for the reasons recorded hereinabove, the present petition is allowed, in the following terms: “(i) Rejection orders dated 13.03.2012 [Annexure P-5] is quashed and set aside; (ii). Order dated 11.07.2011, [Annexure P-4] reducing basic pay of the petitioner on promotional post of Yardmaster from Rs 18950/- w.e.f. 1/14.02.2008 is quashed and set-aside; (iii) Respondent-Corporation is directed to restore basic pay as Yardmaster at Rs. 18950/- from 1/14.02.2008 in terms of pay fixation orders dated 31.12.2009 [Annexure P-3] or such like orders and grant annual increments till retirement on 31.03.2011; and to release revised retiral benefits, including revised pension w.e.f. 01.04.2011 with all consequential benefits on or before 15.12.2025; (iv). Respondents are restrained from giving effect to penalty order dated 05.02.1982 after about 28-29 years hereinafter; (v). Based on Statement made by Learned Senior Counsel, on instructions, the release of the ACP benefits in 2007 is upheld; (vi). Respondents are restrained from giving effect to penalty order dated 05.02.1982 after about 28-29 years hereinafter; (v). Based on Statement made by Learned Senior Counsel, on instructions, the release of the ACP benefits in 2007 is upheld; (vi). Recovery of Rs 9000/- from retiral benefits  is  quashed  and  set-aside and Respondents shall refund the amount of Rs 9000/- within above period ; (vii) Failure to release benefits as in direction no (ii) above, shall entitle petitioner for interest @ 6% per annum w.e.f. 5.12.2025 till realization. (viii). Parties to bear respective costs. In aforesaid terms, the instant petition is allowed and pending miscellaneous application(s), if any, shall accordingly stand disposed of.