Neutral Citation No. - 2025:AHC:126252 Court No. - 4 Case :- WRIT - A No. - 21208 of 2023 Petitioner :- Shiv Prakash Yadav Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rajesh Singh Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J. 1. Heard Sri Rajesh Singh, learned counsel for the petitioner and learned Standing Counsel. 2. By means of this petition filed under Article 226 of the Constitution of India, the petitioner has questioned the order dated 17.4.2021, whereby, re-fixation of his pay has been directed w.e.f. 1.10.2008 and consequential recovery for the excess payment made to the petitioner under the order dated 1.6.2021, which is also impugned here in in this petition. 3. The submission advanced by learned counsel for the petitioner is that the petitioner having retired as Head Constable from U.P. Police on 13.11.2020, such re-fixation beyond the period of 34 months prior to retirement was bad in light of the bar created under the Government Order dated 16.1.2007. According to learned counsel for the petitioner the said Government Order has come to be interpreted by the Supreme Court in its judgement in the case of Sushil Kumar Singhal vs. Pramukh Sachiv Irrigation Department and others 2014 (16) SCC 444. It is further argued on behalf of the petitioner that petitioner is being a Group A and B employee as he was mere Constable while he was serving Head Constable with the Police Department, no recovery as such could have been ordered for the alleged excess payment of salary due to alleged wrong fixation in light of the judgement of the Supreme Court in the case of State of Punjab versus Rafiq masih (White Washer) reportef in AIR (SC) 696. 4. It is next contended that petitioner was not at all responsible at any point of time for alleged such wrong pay fixation w.e.f. 2008, inasmuch as, no notice or opportunity of hearing was given to the petitioner prior to passing of the order of re- fixation. It is further argued that while the petitioner was faced with the recovery, he had earlier filed a writ petition before this Court being Writ-A No.12273 of 2021 which was allowed by setting aside the order dated 19.3.2021 and 17.4.2021 with a further direction for the respondents to pass order afresh. It is upon this order being furnished before the respondent authorities, they came to pass final to the effect that on the ground that petitioner pay fixation was already done in the year 2006 on the basis of which pay fixation should have been done but it got wrongly done in the year 2008, which was further rectified in the year 2012 on the basis of the option exercised, whereas, no such option was exercised by the petitioner. Learned counsel for the petitioner submits that all this which is stated in the order impugned was never disclosed to the petitioner, nor petitioner was responsible for any such pay fixation. 5. Learned Standing Counsel though sought to defend the order for the reasons assigned therein but I find that nothing has been brought on record in support of the findings returned in the Government Order that in the year 2006 initially pay fixation of the petitioner in pay scale and pay grade of the petitioner and upon only being deducted. It was further rectified in the year 2012 and interestingly, there is no averment in the entire counter affidavit about any such re-fixation to have been ever carried out in the year 2012. 6. In such circumstances, therefore, it shall be taken to be the first order of re-fixation passed in the year 2021. Since now the re-fixation has been done after the retirement of the petitioner which runs both contrary to the Government Order dated 16.1.2007. The relevant extract of this Government Order dated 16.01.2007 is reproduced hereinunder: "4. शशसन कक उपरशनत आदकश अभभ तक पभशवभ हह परनतत सनदरभरत शशसनशदकश रदनशनक 05 रदसमबर, 2001 मम रदयक गयक रनदरशश कक दकखतक हहए पमशन पशधधकतशर अधधकशरभ रदनशनक 01-01-86 सक पतनरभरकत वकतनमशनश मम वकतन रनधशररण तक कक जशजच भभ करनक लगक हह, धजससक पमशन पशधधकशर- पत रनगरत करनक मम रवलमब हकतश हह। अतत इस समबनध मम समयक रवचशरकपरशनत रशजयपशल महकदय दशरश रनमनशनरकत आदकश पदशन रकयक गयक हह:- (1) उक सनदरभरत शशसनशदकश रदनशनक 13 रदसमबर 1977 कक उपरकक पशवधशन कक हभ अनतसशर पमशन सवभकतशर अधधकशरभ दशरश पमशन सवभकक रत हकतत सकवशरनवकधत कक तशरभख सक 10 मशह पपवर कक पररलबबधयशज तथश उसकक 02 वरर पपवर अथशरत कत ल 34 महभनक कश ररकशरर हभ दकखश जशयकगश। (2) पमशन सवभकतशर अधधकशरभ कश रकसभ कमरचशरभ कक सकवशकशल मम वकतन कक रनधशररण मम ततरट कक ठभक करशनक कश दशरयतव उपरकक (1) मम रनधशरररत सभमश सक अधधक नहह हकगश। वकतन- रनधशररण कक ततरटयश कक कमरचशरभ कक सकवशरत रहतक हहए हभ सशमशनय जशजच आररट कक मशधयम सक दपर रकयक जशनक कक वयवसथश कक पभशचभ ढनग सक लशगप रकयश जशए।" 7. From a bare reading of the relevant provision of the Government Order, it is clear that Government itself has decided not to permit any scrutiny and consequential rectification of pay fixation already done beyond a period of past 34 months from the date of retirement. Thus, any rectification, if sought to be done, it is to be done within the limit of 34 months. Supreme Court has come to interpret the Government Order in its judgment in the matter of Shushil Kumar Singhal (supra). Vide Paragraph No. 11 the Court has held thus: "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." 8. Considering the facts and circumstances of the case that the petitioner has retired, no recovery could have been ordered for any excess amount in the light of the directions issued by the Supreme Court in the case of Rafiq Masih (supra) in which vide paragraph 12 the Supreme Court has 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." 9. In view of the above, the writ petition succeeds and is allowed. 10. The order dated 26.11.2023 is hereby quashed. 11. Respondents are directed to release post retirement dues of the petitioner including gratuity and pension without any deductions. However, it will remain open for the respondents to proceed with the recovery against erring officer who may have been responsible for such wrong fixation, which resulted in alleged excess payment of salary to the petitioner. 12. The amount recovered pursuant to the order shall be refunded to the petitioner along with interest at the rate of 12% from the date of recovery was done till the actual payment is made, within a period of two months from the date of production of certified copy of this order. 13. It is made clear that if he does not paid the aforesaid amount as directed herein above, the petitioner would be entitled to further interest at the rate of 16% from the date of delay till the date actual payment is made. Order Date :- 29.7.2025 S.A. Digitally signed by :- SALMAN AHMAD High Court of Judicature at Allahabad