Allahabad High Court
Ram Khilawan vs State Of U.P. And 2 Others on 28 October, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:188308
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - A No. - 15741 of 2025
Ram Khilawan
.....Petitioner(s)
Versus
State Of U.P. And 2 Others
.....Respondent(s)
Counsel for Petitioner(s)
:
Puneet Kumar Verma
Counsel for Respondent(s)
:
C.S.C.
Court No. - 34
HON'BLE VIKAS BUDHWAR, J.
1. Heard Sri Puneet Kumar Verma, learned counsel for the writ petitioner as well as Sri R.S. Umrao, learned Standing Counsel for the State.
2. Impugned in the present proceedings is an order dated 31.08.2025 passed by the third respondent, Commandant/Sena Nayak, 37th Battalion Provincial Armed Constabulary, District Kanpur whereby the claim set up by the writ petitioner for non-affecting of recovery and refund of the amount which had been recovered from the writ petitioner pursuant to the direction contained in Writ-A No. 17650 of 2023 decided on 22.07.2025 has been negated.
3. The case of the writ petitioner is that he was initially appointed as a follower on 05.05.1982 as class IV employee in 33rd Battalion Provincial Armed Constabulary, District Etah and he was transferred in the year 2022 to 37th Battalion PAC, District Kanpur and he superannuated on 31.03.2023. According to the writ petitioner, an order came to be passed on 15.05.2023 by the third respondent for making recovery of an amount of Rs. 3,65,178/- with regard to post retiral dues of the writ petitioner with regard to excess payment made to the writ petitioner. The said order was subject matter of challenge in Writ- A No. 17650 of 2023 decided on 22.07.2023 order whereof is quoted hereinunder.-
"Heard Sri Puneet Kumar Verma, learned counsel for the petitioner as well as learned Standing Counsel.
By means of this petition filed under Article 226 of the Constitution, petitioner has questioned the recovery dated 15.05.2023, whereby, the access amount paid to him was directed to be recovered after his retirement that took place on 31.03.2023.
According to learned counsel for the petitioner, the case of the petitioner stands covered by the judgment of Supreme Court in the case of State of Punjab and others vs. Rafiq Masih (White Washer) etc.: 2014 Law Suit (SC) 1075. It is further contended that the order impugned dated 15.05.2023 has been passed without giving any opportunity hearing before correcting the pay fixation.
Per contra it is argued by learned Standing Counsel that petitioner had given an undertaking at the time of pay fixation in the year 2008 when he was being given benefit of Assured Career Progression (ACP) Scheme to the effect that for any wrongful pay fixation he would be liable to refund the amount if paid in excess. He has drawn the attention of the Court to the consent letter in the form of undertaking given by the petitioner on 30.12.2008. Learned Standing Counsel further submits that in the light of the judgment of Supreme Court in the matter of High Court of Punjab and Haryana v. Jagdev Singh, Civil Appeal No. 3500 of 2016 decided on 29.07.2016, if the employee has given undertaking at the time of pay fixation to refund the amount for access payment for wrongful pay fixation, then such an employee would be bound by such undertaking. Paragraph no. 11 of the said judgment has been relied upon which is reproduced hereunder:
"11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking."
I find that the petitioner in rejoinder affidavit has not disputed the undertaking given by him, although plea is taken that petitioner himself was not responsible for any alleged wrongful pay fixation.
In the considered view of the Court once the petitioner had given an undertaking, the case of the petitioner stands covered by the exception drawn in the judgment of Jagdev Singh (supra) by the Supreme Court while considering its own judgment in Rafiq Masih (supra) and hence I do not find any force in the argument advanced by the learned counsel for the petitioner that the petitioner ought not to have been saddled with the liability of recovery pursuant to the order impugned after retirement in the light of the judgment of Supreme Court in Rafiq Masih (supra), however, it is established from the records and the pleadings raised by the parties that the petitioner was not afforded any opportunity of hearing before correcting the pay fixation and directing for recovery of amount towards the post retirement dues under the order dated 15.05.2023. To this extent therefore, I consider it appropriate for the petitioner to take the order dated 15.05.2023 and further the fixation order annexed along with the counter affidavit as Annexure No. 3, as a notice and submit his explanation within a period of four weeks from today before the competent authority namely the respondent no. 3 and if he does so, then the competent authority will be passing order afresh which shall be reasoned and speaking one and the order impugned for recovery and adjustment shall abide by the decision to be taken by the authority.
This petition stands disposed of in the above terms."
4. Post passing of the said order, the writ petitioner approached the third respondent who by virtue of the order dated 31.08.2025 has negated the claim and has affirmed its action for recovering the said amount. Learned counsel for the writ petitioner has submitted that the order dated 31.08.2025 passed by the third respondent insofar as it recovers an amount of Rs. 3,65,178/- cannot be sustained for the simple reason that there had been no fraud, concealment or misrepresentation at any stage and further the said recovery could not have been effectuated from the post retiral benefits of the writ petitioner at the time of retirement. Reliance has been placed upon the decision of Hon'ble Apex Court in State of Punjab Vs. Rafiq Masih reported in 2015 AIR (SC) 696.
5. Sri R.S. Umrao, learned Standing Counsel, on the other hand, submits that the writ petitioner had already given an undertaking that any excess amount if so paid be recovered from the writ petitioner and in view of the judgment in the case of High Court of Punjab and Haryana Vs. Jagdev Singh : Civil Appeal No. 3500 of 2006 decided on 29.07.2016 it was always open and permissible for the employers to recover the said amount particularly when the writ petitioner is not disputing the fact that he was paid excess amount for which he was not entitled.
6. I have heard the submissions so made across the bar and perused the record.
7. Apparently, the writ petitioner was a follower being a class IV employee in 33rd Battalion of Provisional Armed Constabulary District Etah. As per the order impugned, the writ petitioner superannuated on 31.03.2023 and there is a clear cut recital contained therein that the pay scale so assigned to the writ petitioner by virtue of HOB No. 396 dated 10.07.2013 was incorrect. The recitals in the impugned order show that as per the Government Order dated 13.08.2015 the writ petitioner was entitled to the Grade Pay of Rs. 1900/- on 01.01.2006, 06.05.2006 post completion of 24 years Grade Pay of Rs. 2000/- being difference of Rs. 100/- as already writ petitioner was drawing Grade Pay of Rs. 1900/- and third ACP on 01.12.2008 to the Grade Pay of Rs. 2800/- but inadvertently, the writ petitioner was accorded post completion of 24 years of service, 06.05.2006 Grade Pay of Rs. 2400/- and the pay scale was assigned to Rs. 9910/-. Thus, corrective measures stood undertaken on 06.03.2003 for determining the pay of the writ petitioner to Rs. 41,600/- from 44,100/- and recovery was directed to be made to the tune of Rs. 3,65,178/- and the writ petitioner by virtue of his letter dated 25.03.2023 had himself stated that he is not having cash, thus, the same be deducted from gratuity/earned leave etc.
8. Importantly, the factum of issuance of letter for making recovery, undertaking is not disputed. Further there is no pleadings and it is also not the case of the writ petitioner that the fixation was incorrect. Thus, this Court is not required to delve into the said issue.
9. What would be important would be the findings recorded in the earlier spell of litigation that is order dated 22.07.2025 passed in Writ-A No. 17650 of 2023 in which this Court had itself observed and held that recovery can be made in view of the judgment in the case of Jagdev Singh (supra) since undertaking had been given and the argument so sought to be raised with respect to the fact that in the judgment in Jagdev Singh (supra) would not apply was dispelled. Only this much was observed that since recovery was being made without putting to notice the writ petitioner so the writ petitioner be put to notice. Now, since writ petitioner has been heard, thus, the said objection is also not available
10. In view of the finding so recorded in the earlier spell of litigation in a writ petition preferred by the writ petitioner which is inter se binding upon the parties, thus, the conduction of recovery proceedings cannot be said to be bad in the eyes of law. Furthermore, in Jagdev Singh (supra), the Hon'ble Apex Court in paragraph no. 11 has observed as under.-
"11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking."
11. Since there is nothing on record and it is also not the case of the writ petitioner that the fixation so made is incorrect and there is no dispute that the writ petitioner had been given undertaking, thus, the order impugned does not suffer from legal infirmity.
12. Accordingly, interference is declined, the writ petition is dismissed.
(Vikas Budhwar,J.)
October 28, 2025
Rajesh
