Allahabad High Court
Arun Kumar vs State Of U.P. And 4 Others on 7 November, 2024
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:175060
Court No. - 7
Case :- WRIT - A No. - 18237 of 2023
Petitioner :- Arun Kumar
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Sheo Kinkar Singh,Suryaprakash Sharma
Counsel for Respondent :- C.S.C.
Hon'ble Neeraj Tiwari,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel for State-respondents.
2. Learned counsel for the petitioner submitted that petitioner was appointed on the post of Constable in U.P. Police on 9.8.1982 at 37th Battalian P.A.C., Kanpur and promoted on the post of Platoon Commander. Ultimately, he retired from Class-III post on 31.01.2023. After retirement, his post retiral dues are calculated and as per that, he was entitled gratuity as well as commutation of the pension amount as Rs. 1,52,856.00/- & Rs. 13,12,661.00/- respectively. He next submitted that at the time of payment, after detaining Rs. 1,56,716/-, he was paid remaining amount. The said amount was detained on the ground that earlier, due to incorrect fixation of salary, excess payment has been made. He next submitted that in light of judgement of Apex Court in the matters of State of Punjab and others Vs. Rafiq Masih: 2015 (4) SCC 334 and Thomas Daniel Vs. State of Kerala and others, 2022 SCC OnLine SC 536, in case of incorrect fixation of pay scale, any payment is made, no recovery can be made after retirement from Class-III and Class-IV employee. He next submitted that petitioner is not responsible for excess payment, therefore, impugned order is bad and liable to be set aside.
3. Learned standing counsel submitted that at the time of fixation of salary, petitioner has given affidavit that in case of incorrect fixation, amount may be recovered. Therefore, there is no illegality in the order impugned, but he could not dispute this fact that petitioner was not responsible in any way for incorrect fixation of pay scale.
4. In rejoinder argument, learned counsel for the petitioner submitted that issue of filing of such affidavit is very well considered by this Court in the matter of Ramlakhan Vs. State of U.P. and 6 others (Writ A No. 4531 of 2023) decided on 23.05.2023 and that matter is also pertaining to the police department in which affidavit was also given by the petitioner. He next submitted that when the Court directed for personal appearance of respondents, amount so detained based upon affidavit has been paid. The said case was decided by the Court after considering the judgement of Rafiq Masih (supra) and finally disposed of issuing certain directions to State to ensure for not repeating such mistake.
5. I have considered the rival submissions advanced by learned counsel for the parties and perused the record as well as judgment relied upon.
6. Undisputedly, Apex Court in the matters of Rafiq Masih (supra) as well as Thomas Daniel (supra) clearly held that in case of excess payment from Class-III and Class-IV employee, no recovery can be made after retirement in case they are not responsible for the same. Further, affidavit so filed is formal in nature and the same was very well considered by this Court in the matter Ramlakhan (supra) where department itself ignoring the affidavit, has paid the entire amount. So far as present case is concerned, petitioner is not responsible for incorrect fixation of pay scale and it is lapse on the part of respondents itself.
7. Therefore, in light of facts of the case as well as law laid down by Hon'ble Apex Court in the matters of Rafiq Masih (supra) and Thomas Daniel (supra) as well as judgment of this Court in the matter Ramlakhan (supra), this petition is allowed.
8. Respondent no. 3- Commandant 34th Battalion P.A.C., Varanasi is directed to release the amount of Rs. 1,56,716/- in favour of petition, maximum within a period of one month from the date of production of certified copy of this order.
Order Date :- 7.11.2024
Arvind
