SUNIL KUMAR DUBEYversusSTATE OF U.P. AND 2 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                        WRIT - A No. - 6760 of 2026

Sunil Kumar Dubey
                                                           .....Petitioner(s)
                                  Versus

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

Counsel for Petitioner(s)               :   Kailash Prakash Pandey
Counsel for Respondent(s)               :   C.S.C.

Court No. - 6
                    HON'BLE PRAKASH PADIA, J.

1. The order dated 21.09.2025 passed by the Additional Deputy
Commissioner of Police (Protocol) Agra/respondent No.3 by which the
salary of the petitioner has been revised and order of recovery has been
passed is under challenge.

2. It is argued by learned counsel for the petitioner that by the aforesaid
order, salary of the petitioner has been revised from 01.03.2005. It is
argued that the petitioner has been retired from the post of Sub Inspector
Civil Police on 31.03.2026. It is argued that the before passing the
aforesaid order, no notice or opportunity of hearing has been provided to
the petitioner. It is argued that recovery could not be sought from the
petitioner for excess payment made during service period after lapse 20
years back. It is argued that nothing has been stated in the order impugned
that any fraud or misrepresentation has been made by the petitioner at any
point of time or at the time of re-fixation of the pay scale.

3. The aforesaid facts have not been disputed by learned Standing
Counsel.

4. Recently the Hon'ble Apex Court in the case of Thomas Daniel vs.
State of Kerala & Ors. (Civil Appeal No.7115 of 2010) reported in 2022
Supreme(SC) 387 decided on 02.05.2022 held that the state cannot
recover the excess amount paid to employees. In this aspect of the matter
the paragraph-21 of the judgment delivered by the The Hon'ble Apex
Court in the case of Jagdish Prasad Singh vs. State of Bihar and others
                                                      WRIA No. 6760 of 2026
                              2


reported in (2024) 8 SCR 377 also important to note down which reads as
follows:-

     "21. We firmly believe that any decision taken by the State
     Government to reduce an employees pay scale and recover the
     excess amount cannot be applied retrospectively and that too
     after a long time gap. In the case of Syed Abdul Qadir and
     Others V. State of Bihar and others, this Court held that when
     the excess unauthorized payment is detected within a short
     period of time, it would be open for the employer to recover the
     same. Conversely, if the payment had been made for a long
     duration of time, it would be iniquitous to make any recovery.
     The relevant paras of the Syed Abdul Qadir (supra) are
     extracted herein below: -

     "57. This Court, in a catena of decisions, has granted relief
     against recovery of excess payment of emoluments/allowances
     if (a) the excess amount was not paid on account of any
     misrepresentation or fraud on the part of the employee, and (b)
     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.

     58. The relief against recovery is granted by courts not
     because of any right in the employees, but in equity, exercising
     judicial discretion to relieve the employees from the hardship
     that will be caused if recovery is ordered. But, if in a given
     case, it is proved that the employee had knowledge that the
     payment received was in excess of what was due or wrongly
     paid, or in cases where the error is detected or corrected
     within a short time of wrong payment, the matter being in the
     realm of judicial discretion, courts may, on the facts and
     circumstances of any particular case, order for recovery of the
     amount paid in excess.

     59. Undoubtedly, the excess amount that has been paid to the
                                                        WRIA No. 6760 of 2026
                               3


     appellant teachers was not because of any misrepresentation
     or fraud on their part and the appellants also had no
     knowledge that the amount that was being paid to them was
     more than what they were entitled to. It would not be out of
     place to mention here that the Finance Department had, in its
     counter affidavit, admitted that it was a bona fide mistake on
     their part. The excess payment made was the result of wrong
     interpretation of the Rule that was applicable to them, for
     which the appellants cannot be held responsible. Rather, the
     whole confusion was because of inaction, negligence and
     carelessness of the officials concerned of the Government of
     Bihar. Learned counsel appearing on behalf of the appellant
     teachers submitted that majority of the beneficiaries have
     either retired or are on the verge of it. Keeping in view the
     peculiar facts and circumstances of the case at hand and to
     avoid any hardship to the appellant teachers, we are of the
     view that no recovery of the amount that has been paid in
     excess to the appellant teachers should be made. (emphasis
     supplied) ."

5. There has been recurring and troubling pattern that retired employees
are compelled to approach the Court because their pension, gratuity and
other retiral benefits are either withheld or unnecessarily delayed by
Administrative Authority. It is an accepted position that gratuity and
pension are not bounties and employee earns these benefits by dint of
long continuous faithful and unblemished service as was held in the case
of D.S. Nakar vs. Union of India reported in (1983) 1 SCC 305. It is a
hard earned benefit which accrues to an employee and is in the nature of
"property". This right to property cannot be taken away without due
process of law as per Article 300 as was held in State of Jharkhand vs.
Jitendra Kumar Srivastava reported in (2013) 12 SCC 210.

9. Retired employees are compelled to engage in prolonged litigation
merely to receive their lawful pension and gratuity, their dignity and their
financial security is severely compromised. Article 21 of the Constitution
of India which guarantee the right to life with dignity also extends to
individuals in their old age. In the case of Ashwani Kumar vs. Union of
                                                                                          WRIA No. 6760 of 2026
                                                                 4


                                  India reported in (2019) 2 SCC 636, it was held that there cannot be any
                                  doubt that the right to life with dignity is a part of right to life as
                                  postulated in Article 21 of the Constitution of India. Such a right would
                                  be rendered meaningless if aged person does not have the financial means
                                  to take care of his basic necessity and has to depend for it on others.

                                  10. In this view of the matter, the Court is of the prima facie opinion that
                                  the order impugned by the respondent No.4 is perse illegal and against the
                                  provisions of law, hence the same is liable to be set aside and is hereby set
                                  aside.

                                  11. The writ petition is allowed. Additional Deputy Commissioner of
                                  Police (Protocol) Agra/respondent No.3 is directed to provide all the
                                  benefits namely payment of pension to the petitioner on the basis of last
                                  pay drawn by him at the time of his retirement w.e.f. May, 2026. The
                                  reduced pension which has been paid to the petitioner after his retirement
                                  till April 2026 be also released in his favour within a period of three
                                  weeks from the date of receipt of certified copy of this order.



                                                                                           (Prakash Padia,J.)
                                  May 6, 2026
                                  saqlain




Digitally signed by :-
SYED MOHAMMAD SAQLAIN HAIDER
High Court of Judicature at Allahabad