Ashok Kumar Dubey vs State of U.P. Thru. Addl. Chief Secy., Home Deptt., Lko. and 2 Others

Present petition under Article 226 of Constitution of India has been filed challenging order dated 31.12.2.2024 whereby recovery has been effected from retiral benefits of petitioner on ground that he was granted excess payment due to incorrect fixation of pay-scale earlier.

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It has been submitted that impugned order has been passed reexamining the benefits which have already been granted to petitioner with effect from 01.01.2006.

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It is submitted that the impugned order has evidently been passed without any opportunity of hearing being provided to petitioner and also in violation of judgment rendered by Hon'ble the Supreme Court in State of Punjab & others v. Rafiq Masih (White Washer) & others reported in (2015) 4 SCC 334 as well as Government order dated 16.01.2007.

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Learned State Counsel has opposed the prayer made in the petition.

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The aspect as to whether recovery can be effected on account of incorrect fixation of pay-scale has already been dealt with in judgment rendered by Hon'ble the Supreme Court in State of Punjab & others

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WRIA No. 310 of 2026

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2

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v. Rafiq Masih (White Washer) & others (supra). Relevant portions of the judgment reads as under:-

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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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Upon applicability of aforesaid decision of Hon'ble the Supreme Court in the present facts and circumstances, it is evident that petitioner is a Class III employee and deductions have been made from his post-retiral benefits. There is no assertion by opposite parties that alleged incorrect fixation of pay-scale was on account of any fraud or misrepresentation on part of petitioner. It is also evident that prior to making deduction, no opportunity of hearing whatsoever has been provided to petitioner.

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In view thereof, impugned order dated 31.12.2.2024 is hereby

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WRIA No. 310 of 2026

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3

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quashed by issuance of a writ in the nature of Certiorari granting liberty to opposite parties to pass orders afresh with regard to payfixation but only after affording opportunity of hearing to petitioner and considering his reply. It is also directed that the amount already recovered from petitioner shall be refunded to him within a period of eight weeks from the date a certified copy of this order is served upon opposite parties concerned. The decision shall be taken by authority concerned in light of Government Order dated 16.01.2007.

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Consequently, the petition succeeds and is allowed at the admission stage itself. Parties to bear their own costs.

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(Manish Mathur,J.)

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January 16, 2026

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kvg/-

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Digitally signed by :- GIREESAN KV High Court of Judicature at Allahabad, Lucknow Bench

Ashok Kumar Dubey v. State of U.P. Thru. Addl. Chief Secy., Home Deptt., Lko. and 2 Others

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Ashok Kumar Dubey v. State of U.P. Thru. Addl. Chief Secy., Home Deptt., Lko. and 2 Others

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