Allahabad High Court
Vijay Kumar Shukla vs State Of U.P. Thru. Prin. Secy. Basic ... on 19 November, 2024
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:76140
Court No. - 5
Case :- WRIT - A No. - 5497 of 2024
Petitioner :- Vijay Kumar Shukla
Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education Deptt. Govt. Lko. And 6 Others
Counsel for Petitioner :- Puttan Singh
Counsel for Respondent :- C.S.C.,Uday Veer Singh
Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner, learned Additional Chief Standing Counsel appearing for respondents no.1, 2, 3 and 6, Dr. Udai Veer Singh, learned counsel appearing for respondents no.4, 5 and 7.
2. Under challenge is the order dated 04.07.2024, a copy of which is Annexure-1 to the petition. Also under challenge is the order dated 17.05.2024, a copy of which is Annexure CA 1 to the counter affidavit filed on behalf of respondent no.5. A further prayer is for a mandamus commanding the respondents to pay the post retiral dues to the petitioner for the post of Assistant Teacher of Junior High School.
3. Bereft of unnecessary details, the facts of the case are that the petitioner retired on attaining the age of superannuation on 31.03.2024 while working as Assistant Teacher. Subsequent to his retirement, the order impugned dated 04.07.2024 has been passed whereby it has been indicated that on the basis of order dated 17.05.2024, as impugned in the petition, it has been noticed that in the service book of the petitioner an additional increment has been granted to him on 01.07.2006 although the same had already been granted to him. Thus, it has been indicated that the recovery of the aforesaid increment along with the payments which have been made from time to time are to be made.
4. The argument of learned counsel for the petitioner on the basis of judgment of Hon'ble Supreme Court in the case of State of Punjab and others etc. vs. Rafiq Masih (White Washer) etc. reported in (2015) 4 SCC 334 is that Hon'ble Supreme Court has held that no recovery is permissible from retired employees subsequent to their retirement.
5. The contention is that although the respondents are perfectly empowered and entitled to correct any error that may have crept in the pay fixation of the petitioner but by no stretch of imagination can make any recovery from the petitioner subsequent to his retirement.
6. Dr. Udai Veer Singh and learned Standing Counsel state that as would be apparent from perusal of the orders impugned the recovery is sought to be made after re-fixation of the pay of the petitioner on account of one increment having erroneously been granted to the petitioner. However, there is no dispute pertaining to the proposition of law as laid down by Hon'ble Supreme Court in the case of Rafiq Masih (supra).
7. The law pertaining to recovery from a retired employee has already been settled by Hon'ble the Apex Court in the case of Rafiq Masih (supra) wherein the Apex Court has held as under:-
"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."
8. When the facts of the instant case are tested at the touchstone of law laid down by the Apex Court in the case of Rafiq Masih (supra) what comes out is that legally no such recovery could have been made from the petitioner after his retirement. However, the respondents would be entitled to fix the pension of the petitioner correctly considering that one increment has erroneously been granted to him.
9. Keeping in view the aforesaid discussion, the writ petition is allowed. The orders impugned dated 04.07.2024 and 17.05.2024, copies of which are Annexures 1 to the petition and Annexure CA 1 to the counter affidavit filed on behalf of respondent no.5, are quashed to the extent that no recovery would be made from the petitioner. In case the respondents have recovered any amount the same would be refunded to the petitioner within a period of six weeks from the date of receipt of a certified copy of this order. However, the respondents would be at liberty of correctly fixing the pay and pension of the petitioner.
Order Date :- 19.11.2024
A. Katiyar
