Allahabad High Court
Ram Naresh Yadav vs State Of U.P. Thru. Prin. Secy. ... on 9 January, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 4
Case :- WRIT - A No. - 6955 of 2022
Petitioner :- Ram Naresh Yadav
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Revenue Govt. Up Civil Sectt. Lko. And 7 Others
Counsel for Petitioner :- Ganesh Kumar Gupta
Counsel for Respondent :- C.S.C.
Hon'ble Vivek Chaudhary,J.
Heard learned counsel for petitioner and learned standing counsel for State.
Petitioner has approached this Court for a mandamus commanding the respondents to fix his pension on the basis of last drawn pay at the time of his superannuation and to grant interest upon the delayed payment. Petitioner has also challenged the order dated 28.08.2021 whereby the respondent no.8 has raised an objection that grade of 4600 on account of second A.C.P. was entitled to the petitioner w.e.f. 01.09.2009 while the same is granted to him w.e.f. 01.06.2009.
Learned counsel for the petitioner submits that the impugned objection is incorrect and there is difference of only 22 days, i.e., petitioner is entitled for the second A.C.P. w.e.f. 22.06.2009 and not from 01.06.2009. The objection that he would be entitled for second A.C.P. from 01.09.2009 is also incorrect.
Learned counsel for the petitioner further submits that even presuming that amount of second A.C.P. grade pay is granted in excess to the petitioner, petitioner being a Class-III employee is entitled for the benefit of judgment passed by Hon'ble Apex Court in the case of 'State of Punjab and others Vs. Rafiq Masih (White Washer) and others, 2015 (4) SCC 334', paragraph-18 of which provides:-
"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:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(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.
(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."
Further submission is that other similarly situated persons are granted the said benefit, however, petitioner is being deprived of the same.
Thus, looking into the facts and circumstances of the case, since the objection dated 28.08.2021 is an ex-parte objection and on the basis of the same, no order is passed as yet, petitioner is permitted to make a fresh detailed representation for grant of pension as well as arrears of pension to respondent no.7 Director, Treasury and Pension, U.P., Indira Bhawan, Lucknow, raising all his grievance, annexing therewith a copy of this writ petition along with annexures, judgments/government orders, if any, and all the documents in support of his claim within a period of two weeks from today along with a certified copy of this order.
In case such a representation is moved by petitioner, respondent no. 7 shall consider and decide the same in accordance with law and also in light of Rafiq Masih case (supra), by a reasoned and speaking order within a period of two months from the date a certified copy of this order along with representation is placed before him. He shall also ensure payment to the petitioner.
With the aforesaid directions, the writ petition is disposed of.
Order Date :- 9.1.2023
Arti/-
[Vivek Chaudhary,J.]
