Surya Mani Dubey Vs State of U.P. Thru. Addl. Chief Secy. Home Lko. and 2 Others

Neutral Citation No. - 2025:AHC-LKO:48871

Court No. - 8

Case :- WRIT - A No. - 12080 of 2024

Petitioner :- Surya Mani Dubey Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Lko. And 2 Others Counsel for Petitioner :- Om Prakash Misra Counsel for Respondent :- C.S.C.

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Hon'ble Manish Mathur,J.

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Heard learned counsel for the petitioner and learned State counsel for the opposite parties.

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This petition has been filed challenging the order dated 29.10.2024, whereby, the fixation of pay scale of the petitioner has been done indicating excess payment of salary being made to him in view of incorrect fixation of pay scale earlier in 2008.

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Earlier on 17.12.2024, the following order had been passed:-

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"1. Heard Sri Om Prakash Misra, learned counsel for petitioner as well as learned Standing Counsel for respondents.

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2. It has been submitted by learned counsel for petitioner that petitioner was working on the post of constable driver and subsequently promoted to the post of Head Constable Driver when by means of impugned order dated 29.10.2024 the respondents have refixed the salary of the petitioner since 2008 onwards and from December, 2008 onwards, it has been indicated that the petitioner was wrongly given higher salary than what was admissible.

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3. It has been submitted that in response to the notices given previously the petitioner has submitted his reply but it seems that without considering the response, the impugned order has been passed upholding the refixation of his salary.

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4. Learned counsel for petitioner has further submitted that it is in pursuance to the impugned order the respondents would now proceed to recover the excess amount paid to the petitioner. It is stated that in light of the judgment of Hon'ble the Supreme Court in the case of State of Punjab & others v. Rafiq Masih (White Washer) & others reported in (2015) 4 SCC 334, no recovery is made from the petitioner as he is working on Class-III post.

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5. Learned Standing Counsel prays for and is granted three weeks' time to file counter affidavit. Petitioner shall have two weeks thereafter to file rejoinder affidavit.

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6. Connect and list this petition along with Writ A No. 11575 of 2024.

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7. Till the next date of listing, operation and implementation of the impugned order dated 29.10.2024 shall remain stayed. "

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Learned State Counsel on the basis of counter affidavit submits that due to incorrect fixation of pay scale, excess salary was paid to the petitioner which is required to be recovered since, it would be a drain on the exchequer.

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Upon consideration of the submissions advanced by the learned counsels for the parties and perusal of record, it is evident that the impugned order has been passed without affording opportunity of hearing and without considering the reply submitted by the petitioner to the show cause notice. It is not the case of opposite parties that incorrect fixation of pay scale was an account of any fraud or misrepresentation on the part of petitioner. It is also evident that amount of Rs.50,000/has been deducted from the petitioner's salary in view of impugned orders prior to passing of the interim protection.

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The aforesaid aspect has already been considered by the Supreme Court in the Case of State of Punjab versus Rafiq Masih (White Washer) , 2015 4 SCC 334 in following manner:-

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"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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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

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

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(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.

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(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.

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(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. "

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In the considered opinion of this Court, the petitioner's case is squarely covered by the aforesaid judgemnet.

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In view thereof, the impugned order dated 29.10.2024 is hereby quashed by issuance of a writ in the nature of certiorari, granting liberty to the opposite parties to pass order afresh with regard to fixation of pay scale of petitioner but only after affording opportunity of hearing to him and considering his reply.

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In view of the fact that the petitioner is Class-III employee, the opposite parties are directed to refund the amount of Rs.50,000/- deducted earlier within a period of three weeks from the date a certified copy of this order is served upon the concerned authority.

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Resultantly, the petition succeeds and is allowed . Parties to bear their own cost.

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Order Date :- 20.8.2025 Anurag

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Digitally signed by :- ANURAG SINGH High Court of Judicature at Allahabad, Lucknow Bench

Surya Mani Dubey v. State of U.P. Thru. Addl. Chief Secy. Home Lko. and 2 Others

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Surya Mani Dubey v. State of U.P. Thru. Addl. Chief Secy. Home Lko. and 2 Others

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