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Allahabad High Court

RAJENDRA SINGHversusTHE STATE OF U.P. AND 2 OTHERS

Decided

Holding

An amount paid in excess due to erroneous pay‑scale fixation cannot be recovered from a retired government servant.

Summary

The petitioner, a retired government employee, challenged a deduction of Rs 4,93,073 from his leave encashment, which the respondents claimed was excess salary paid due to an erroneous pay‑scale fixation. The petitioner argued that, under the Supreme Court’s decision in State of Punjab v. Rafiq Masih, such excess amounts cannot be recovered from a retired servant. The respondents contended that the deduction was made after a notice and with the petitioner’s consent, and therefore was lawful. The High Court examined the pay‑fixation error, found no fault or misrepresentation on the petitioner’s part, and applied the Rafiq Masih precedent which bars recovery from retired employees. Consequently, the Court allowed the writ petition, directing the respondents to refund the deducted amount with interest.

Issues considered

  • Whether a government can recover excess salary paid due to wrong pay‑scale fixation from a retired employee.
  • Whether the Supreme Court’s ruling in State of Punjab v. Rafiq Masih precludes such recovery.

Subjects

  • excess salary recovery
  • retired government employee
  • pay fixation error
  • Rafiq Masih precedent
  • certiorari
  • mandamus
  • leave encashment
  • Sixth Pay Commission

Judgment

          HIGH COURT OF JUDICATURE AT ALLAHABAD
                        WRIT - A No. - 15461 of 2023

Rajendra Singh
                                                             .....Petitioner(s)
                                   Versus

The State Of U.P. And 2 Others
                                                           .....Respondent(s)

Counsel for Petitioner(s)       : Abhishek Kumar Yadav, Archana
                                  Singh, Bhola Nath Yadav, Bramh
                                  Narayan Singh, Prem Singh
Counsel for Respondent(s)       : C.S.C.

Court No. - 34

(SN.11)

                 HON'BLE ANISH KUMAR GUPTA, J.

1. Heard Sri Bramh Narayan Singh, learned counsel for the petitioner and
Sri Anand Mani Tripathi, learned Standing Counsel for the State.

2. The instant petition has been filed with the following prayers:

     "i) Issue a writ, order or direction in the nature of certiorari to
     quash the impugned Order dated 10.10.2002 passed by the
     Senior Superintendent of Police, Saharanpur the copy whereof
     is contained in Annexure -1 to the writ petition whereby the
     amount of gratuity and commutation has been paid but an
     amount of Rs. 4,93,073/- has been recovered from the leave
     encashment of the petitioner towards alleged excess payment
     made to the petitioner;

     ii) Issue a writ, order or direction in the nature of mandamus
     commanding the respondents to refund the amount of Rs.
     4,93,073/- which has been recovered from the Petitioner's
     leave encashment towards the alleged excess payment of salary
     made to the Petitioner which cannot be made in the light of the
     judgment delivered by the Hon'ble Supreme Court in State of
     Punjab and others Versus Rafeek Masih (whitewasher) and
     others reported in 2015(4) S.C.C. 332;"
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                               2


3. Learned counsel for the petitioner submits that after the retirement of
the petitioner, on 30.06.2022, a notice was issued on 06.08.2022 to the
petitioner regarding deduction of the amount to the tune of Rs. 4,93,073/-
being the excess amount paid to the petitioner due to wrong fixation of
pay-scale. In response thereto, as the petitioner's all retiral dues were
withheld by the respondents and the pension was also not paid to the
petitioner, in such circumstances the petitioner, under compelling
circumstances, given his consent that after deduction of the aforesaid
amount the remaining amount be paid to the petitioner and the pension be
fixed and thereupon, vide impugned order dated 10.10.2022, the
respondents have deducted the aforesaid amount of Rs. 4,93,073/- from
the leave encashment amount payable to the petitioner. Being aggrieved,
the instant writ petition has been filed by the petitioner herein.

4. Learned counsel for the petitioner submits the amount so deducted is an
amount, which is allegedly paid by the respondents due to wrong fixation
of pay-scale. The respondents are not in a position to point out that at any
point of time either the petitioner herein has played any role in such
wrong fixation of pay-scale or he has played any fraud or
misrepresentation on his part. Therefore, for the fault on the part of the
respondents, the petitioner cannot be made to suffer.

5. Learned counsel for the petitioner further relying upon the judgment of
the Apex Court in State of Punjab and Others vs. Rafiq Masih (White
Washer), 2015 4 SCC 334 submits that no amount paid in excess due to
wrong fixation of pay-scale can be recovered from a Government servant
after his retirement. Therefore, he seeks quashing of the impugned order
dated 10.10.2022.

6. Per contra, Sri Anand Mani Tripathi, learned counsel for the
respondents submits that the pay fixation so made erroneously in favor of
the petitioner was re-fixed on 05.05.2022 and thereupon the notices were
issued to the petitioner, to which the petitioner has agreed that the
aforesaid amount be deducted from the leave encashment amount payable
to the petitioner. Accordingly, the said amount has been deducted.
Therefore, there is no illegality in the aforesaid deduction, which was
done with prior notice and with consent of the petitioner. Therefore,
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                               3


learned counsel for the respondents seeks dismissal of the instant petition.

7. Having heard the rival submissions so made by learned counsel for the
parties, this Court has carefully gone through the record of the case. From
the record of the case, it is apparent in terms of the Government Order
dated 08.12.2008, an option was asked from the petitioner to pay the
revised pay-scale in terms of this recommendation of the Sixth Pay
Commission to the petitioner and the petitioner has exercised the option
from 01.01.2006. However, despite the correct option given by the
petitioner, the pay fixation was wrongly fixed in excess to the petitioner.
Thereafter, just before the retirement of the petitioner on 05.05.2022 the
pay fixation which was erroneously made was revised vide order dated
05.05.2022. Thereupon, the petitioner has retired on 30.06.2022 and after
his retirement, since the retiral dues of the petitioner were not being paid
and nor the pension was released. Under such compelling circumstances,
the petitioner has agreed for the aforesaid deduction, so that the remaining
amount be paid to the petitioner and the pension is also released in favor
of the petitioner. Thereafter, the instant petition has been filed by the
petitioner stating that the respondents have wrongly deducted the
aforesaid amount, which cannot be recovered by them in terms of the
judgment of Rafiq Masih (supra).

8. In Rafiq Masih (supra), the Apex Court has held 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 hereinabove, we may, as a ready
     reference, summarise the following few situations, wherein
     recoveries by the employers, would be impermissible in law:

     (i) Recovery from the employees belonging to Class III and
     Class IV service (or Group C and Group D service).

     (ii) Recovery from the retired employees, or the employees who
     are due to retire within one year, of the order of recovery.
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                                                                     4


                                           (iii) Recovery from the 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. From the aforesaid judgment, it is apparent that any amount paid to the
                                    Government servant in excess due to wrong fixation of pay-scale without
                                    there being any fault or any role of such Government servant in such
                                    wrong fixation of pay-scale, the said amount cannot be recovered from
                                    such Government servant after his retirement.

                                    10. In view of the aforesaid settled position of law, in the instant case, the
                                    amount deducted is an excess amount paid to the petitioner due to wrong
                                    fixation of pay-scale. Respondents have not been able to point out any
                                    fraud or misrepresentation committed by the petitioner while such pay-
                                    scale was fixed erroneously in favor of the petitioner.

                                    11. In such view of the matter, in the considered opinion of this Court, the
                                    aforesaid amount could not have been recovered from the petitioner. In
                                    such view of the matter, the instant petition is allowed. The respondents
                                    are directed to release the amount of Rs. 4,93,073/- in favor of the
                                    petitioner within a period of eight weeks from today, failing which the
                                    aforesaid amount shall carry an interest at the rate of 8% per annum.



                                                                                       (Anish Kumar Gupta,J.)
                                    September 14, 2026
                                    Shubham Arya




Digitally signed by :-
SHUBHAM ARYA
High Court of Judicature at Allahabad


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