Suresh Kumar Tiwari Vs State of U.P. Thru. the Addl. Chief Secy. Home Deptt. and 2 Others

Petition has been filed challenging order dated 28th September, 2021, whereby pay scale of the petitioner has been refixed. Further prayer for refund of deducted amount along with interest has also been made.

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It has been submitted that impugned order will make it evident that the same has been passed without affording any opportunity of hearing to petitioner while refixing the pay scale excluding benefits which were earlier made admissible to petitioner. It is submitted that it is not the case of opposite parties that the alleged incorrect fixation was due to any fraud or misrepresentation on the part of petitioner.

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Learned State Counsel has not been provided written instructions in this matter but submits that impugned order has been passed in view of fact that due to some error, excess payment has been made to petitioner.

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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 has clearly enunciated that recovery cannot be effected from salary of Class III and Class IV employees particularly when there is no allegation of any fraud or misrepresentation on part of the employee.

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WRIA No. 4186 of 2024

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2

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In view thereof, this Court finds the present dispute squarely covered by judgment in State of Punjab & others v. Rafiq Masih (supra), which is in the following terms:-

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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 view of aforesaid facts and circumstances, impugned order dated 28th September, 2021 is hereby quashed by issuance of a writ in the nature of Certiorari granting liberty to authority concerned to pass orders afresh regarding pay-fixation but only after affording opportunity of hearing to petitioner and considering his reply. Aforesaid exercise shall keep in mind directions issued by Hon'ble the Supreme Court in State of Punjab & others v. Rafiq Masih(supra). Such a decision shall be taken within a period of eight weeks. Refund of recovery, if any, made from petitioner's salary shall be made by the authority within same period in light of State of Punjab & others v. Rafiq Masih (supra) .

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Resultantly, the petition succeeds and is allowed.

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August 26, 2025

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prabhat

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(Manish Mathur,J.)

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Digitally signed by :- PRABHAT KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Suresh Kumar Tiwari v. State of U.P. Thru. the Addl. Chief Secy. Home Deptt. and 2 Others

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Suresh Kumar Tiwari v. State of U.P. Thru. the Addl. Chief Secy. Home Deptt. and 2 Others

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