[Cites 11, Cited by 0]
Gujarat High Court
Panchal Babulal Maganlal vs State Of Gujarat on 28 April, 2026
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10541 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
Yes
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PANCHAL BABULAL MAGANLAL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR MEET A SHAH(9933) for the Petitioner(s) No. 1
MR HENIL SHAH ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 28/04/2026
ORAL JUDGMENT
1. Heard learned advocate Mr. Meet Shah for
the petitioner and learned Assistant Government
Pleader Mr. Henil Shah for the respondent-State.
2. With the consent of the learned advocates
appearing for the respective parties, the matter
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is taken up for final hearing. Hence, RULE.
Learned Assistant Government Pleader Mr. Henil
Shah waives service of rule on behalf of the
respondent-State.
3. By way of this petition, the petitioner has
prayed for the following reliefs:
"A. This Hon'ble Court may be pleased to
admit and allow the petition;
B. This Hon'ble Court may be pleased to
quash and set aside the impugned actions
of initiation of the recovery made from
the petitioner by the respondents and
reduction of the pension of the petitioner
by the respondents;
C. This Hon'ble Court may be pleased to
issue a writ of mandamus and/or any other
appropriate writ, order or directions to
the respondent authorities to pay the
pension to the petitioner as being paid
till May 2023 and further be pleased to
direct the respondents to refund the
amount deducted by the respondents from
the pension of the petitioner along with
interest at the rate of 12% per month;
D. Pending admission, hearing and final
disposal of this petition, this Hon'ble
Court may be pleased to stay the further
operation, implementation and execution of
impugned actions of making recovery from
the pension of the petitioner and
reduction of pension amount from the
pension of the petitioner;
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E. Any other and further relief or reliefs
which this Hon'ble Court deems fit in the
interest of justice and equity in the
favour of the petitioner."
4. It is the case of the petitioner that he was
appointed as Junior Clerk in Vasudev Someshwar
Raval Primary Teacher Certificate College,
Prantij, which is a grant-in-aid institution, on
19.06.1978 after following due procedure for
appointment, and thereafter he was promoted as
Senior Clerk, and after serving for 26 years, 2
months and 22 days in the said institution, he
retired on attaining the age of superannuation
on 30th September 2004 from the said institution.
5. Thereafter, though the petitioner was receiving
pension from September 2004, after more than 18
years, on 05.05.2023, the petitioner came to
know that recovery was sought to be initiated
against him. It was informed to the petitioner
that though the pension paid to him was properly
paid till 2005, from 2006 to 2023, due to an
inadvertent mistake on the part of the office of
respondent No.2, the petitioner's pension was
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wrongly fixed and therefore, recovery of
Rs.13,14,432/- towards excess pension amount
paid to the petitioner is sought to be made.
Though the petitioner made a detailed
representation, he did not receive any response
from the respondents. In the meantime, from May
2023, the respondents started deducting
Rs.30,284/- from his monthly pension. It is the
case of the petitioner that till May 2023, he
was receiving Rs.30,284/- towards pension,
however in June 2023, the respondents deducted a
sum of Rs.19,764/- towards recovery and paid
only Rs.10,520/- towards pension to the
petitioner. It is the aforesaid action of the
respondents which is under challenge by way of
the present petition.
6. Learned advocate Mr. Meet Shah appearing for the
petitioner submitted that there is no fraud or
misrepresentation on the part of the petitioner.
The fixation of pension is purely within the
domain of the respondents and the same was being
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paid to the petitioner on the basis of his last
drawn salary. Therefore, if any mistake was
committed by the respondents in fixation of
pension of the present petitioner, the excess
payment made to the petitioner cannot be
recovered from him, as the mistake cannot be
attributed to the petitioner, and the higher
rate at which the pension was fixed and paid was
not based on any fraud or misrepresentation on
the part of the present petitioner.
7. Learned advocate Mr. Meet Shah relied upon the
decision of the Hon'ble Apex Court in the case
of Jogeswar Sahoo & Ors. v. District Judge,
Cuttack & Ors., decided on 04.04.2025 in Civil
Appeal No. 4989 of 2025, and submitted that
recovery is impermissible and, therefore, the
recovery imposed against the present petitioner
is required to be quashed and set aside. Learned
advocate Mr. Meet Shah also relied upon the
decision of the Hon'ble Supreme Court in the
case of State of Punjab and Ors. v. Rafiq Masih
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and Ors., reported in (2015) 4 SCC 334, and
submitted that in view of the aforesaid
decision, since the petitioner retired from a
Class-III post and more than five years have
already passed, such recovery is impermissible.
8. Learned advocate Mr. Meet Shah also relied upon
the decision in Jagdev Singh and Ors. (supra)
and submitted that in view of the aforesaid
decision, since the petitioner retired from a
Class-III post and more than five years have
already passed, such recovery is impermissible.
9. Learned advocate Mr. Meet Shah also relied on
the decision of this Court, rendered in the case
of Jethalal Ambalal Patel Vs. Anand Agricultural
University & Another, decided on 19.12.2024, in
Special Civil Application No. 15865 of 2021 and
more particularly, the observations made in
Paragraphs- 6.1.4 and 6.1.5 thereof and also on
the decision of the Apex Court in the case of
'Pani Ram Vs. Union of India & Ors.', reported
in AIR 2022 SC 182, submitted that even if, the
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respondents may contend that the aforesaid
higher pay-scales was granted to the petitioner
on the basis of undertaking given by him, in
view of the decision of the Hon'ble Apex Court
in the case of 'Pani Ram' (Supra), even if such
undertakings was given by the petitioner,
recovery cannot be imposed on the petitioner by
the respondents.
10. Learned Assistant Government Pleader Mr.
Henil Shah appearing for the respondent - State
has vehemently opposed the petition. He placed
reliance on the decision of the Hon'ble Apex
Court in the case of Balbir Singh Bhandari Vs.
State of Uttarakhand, rendered in Civil Appeal
No. 5933 of 2023 and the allied matters, Dated:
10.01.2024, wherein also, the Hon'ble Apex Court
confirmed the decision of the Punjab & Haryana
High Court by permitting recovery of excess
amount paid by the Respondents to the
petitioners therein, as the same was paid by
creating a separate class and the said class was
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given a favourable treatment.
10.1 It was submitted that in the instant
case also, the petitioner was treated
differently and not in consonance with his
entitlement and therefore, in view of the above
referred judgments of the Hon'ble Apex Court,
the recovery sought to be made from the present
petitioner cannot be interfered with and the
order imposing recovery on the petitioner may
not be interfered with by this Court.
11. By relying upon the aforesaid decisions,
learned Assistant Government Pleader Mr. Henil
Shah prayed for dismissal of the petition.
12. I have heard learned advocates appearing
for the respective parties and perused the
record. On perusal of the record, it cannot be
said that the petitioner was granted pension at
a higher rate on the basis of any fraud or
misrepresentation attributable to the
petitioner, and therefore, recovery after 18
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years on account of alleged wrong fixation of
pension resulting in excess payment is
impermissible. In State of Punjab and Ors. v.
Rafiq Masih and Ors., reported in (2015) 4 SCC
334, the Hon'ble Supreme Court in para 18
observed 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.
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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."
13. The Hon'ble Supreme Court, while
considering the case of Jogeswar Sahoo & Ors.
(Supra), in paragraphs 8 to 13 wherein the
Hon'ble Apex Court has considered various
judgments by which the issue is settled has
observed as under,:
"In the case of 'Jogeswar Sahoo & Ors.'
(Supra), the Hon'ble Apex Court, in
Paragraphs- 8 to 13, has observed as
under, where, the Hon'ble Apex Court has
considered the various judgments, by which
the issue is settled;
"8. The law in this regard has been
settled by this Court in catena of
judgments rendered time and again; Sahib
Ram vs. State of Haryana1, Shyam Babu
Verma vs. Union of India2, Union of India
vs. M. Bhaskar3 and V. Gangaram vs.
Regional Jt. Director4 and in a recent
decision in the matter of Thomas Daniel
vs. State of Kerala & Ors.5.
9. This Court has consistently taken the
view that if the excess amount was not
paid on account of any misrepresentation
or fraud on the part of the employee or if
such excess payment was made by the
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employer by applying a wrong principle for
calculating the pay/allowance or on the
basis of a particular interpretation of
rule/order, which is subsequently found to
be erroneous, such excess payments of
emoluments or allowances are not
recoverable. It is held that such relief
against the recovery is not because of any
right of the employee but in equity,
exercising judicial discretion to provide
relief to the employee from the hardship
that will be caused if the recovery is
ordered.
10. In Thomas Daniel (supra), this
Court has held thus in paras 10, 11, 12
and 13:
"10. In Sahib Ram v. State of Haryana1
this Court restrained recovery of payment
which was given under the upgraded pay
scale on account of wrong construction of
relevant order by the authority concerned,
without any misrepresentation on part of
the employees. It was held thus:
"5. Admittedly the appellant does not
possess the required educational
qualifications. Under the circumstances
the appellant would not be entitled to
the relaxation. The Principal erred in
granting him the relaxation. Since the
date of relaxation, the appellant had
been paid his salary on the revised
scale. However, it is not on account of
any misrepresentation made by the
appellant that the benefit of the higher
pay scale was given to him but by wrong
construction made by the Principal for
which the appellant cannot be held to be
at fault. Under the circumstances the
amount paid till date may not be
recovered from the appellant. The
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principle of equal pay for equal work
would not apply to the scales prescribed
by the University Grants Commission. The
appeal is allowed partly without any
order as to costs."
11. In Col. B.J. Akkara (Retd.) v.
Government of India2 this Court considered
an identical question as under:
"27. The last question to be considered
is whether relief should be granted
against the recovery of the excess
payments made on account of the wrong
interpretation/understanding of the
circular dated 7-6-1999. This Court has
consistently granted relief against
recovery of excess wrong payment of
emoluments/allowances from an employee,
if the following conditions are
fulfilled (vide Sahib Ram v. State of
Haryana [1995 Supp (1) SCC 18 : 1995 SCC
(L&S) 248], Shyam Babu Verma v. Union of
India [(1994) 2 SCC 521 : 1994 SCC (L&S)
683 : (1994) 27 ATC 121], Union of India
v. M. Bhaskar [(1996) 4 SCC 416 : 1996
SCC (L&S) 967] and V. Gangaram v.
Regional Jt. Director [(1997) 6 SCC
139 : 1997 SCC (L&S) 1652]):
(a) The excess payment was not made on
account of any misrepresentation or
fraud on the part of the employee.
(b) Such excess payment was made by the
employer by applying a wrong principle
for calculating the pay/allowance or on
the basis of a particular interpretation
of rule/order, which is subsequently
found to be erroneous.
28. Such relief, restraining back recovery
of excess payment, is granted by courts
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not because of any right in the employees,
but in equity, in exercise of judicial
discretion to relieve the employees from
the hardship that will be caused if
recovery is implemented. A government
servant, particularly one in the lower
rungs of service would spend whatever
emoluments he receives for the upkeep of
his family. If he receives an excess
payment for a long period, he would spend
it, genuinely believing that he is
entitled to it. As any subsequent action
to recover the excess payment will cause
undue hardship to him, relief is granted
in that behalf. But where the employee had
knowledge that the payment received was in
excess of what was due or wrongly paid, or
where the error is detected or corrected
within a short time of wrong payment,
courts will not grant relief against
recovery. The matter being in the realm of
judicial discretion, courts may on the
facts and circumstances of any particular
case refuse to grant such relief against
recovery.
29. On the same principle, pensioners can
also seek a direction that wrong payments
should not be recovered, as pensioners are
in a more disadvantageous position when
compared to in-service employees. Any
attempt to recover excess wrong payment
would cause undue hardship to them. The
petitioners are not guilty of any
misrepresentation or fraud in regard to
the excess payment. NPA was added to
minimum pay, for purposes of stepping up,
due to a wrong understanding by the
implementing departments. We are therefore
of the view that the respondents shall not
recover any excess payments made towards
pension in pursuance of the circular dated
7-6-1999 till the issue of the
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clarificatory circular dated 11-9-2001.
Insofar as any excess payment made after
the circular dated 11-9-2001, obviously
the Union of India will be entitled to
recover the excess as the validity of the
said circular has been upheld and as
pensioners have been put on notice in
regard to the wrong calculations earlier
made."
12. In Syed Abdul Qadir v. State of Bihar3
excess payment was sought to be recovered
which was made to the appellants-teachers
on account of mistake and wrong
interpretation of prevailing Bihar
Nationalised Secondary School (Service
Conditions) Rules, 1983. The appellants
therein contended that even if it were to
be held that the appellants were not
entitled to the benefit of additional
increment on promotion, the excess amount
should not be recovered from them, it
having been paid without any
misrepresentation or fraud on their part.
The Court held that the appellants cannot
be held responsible in such a situation
and recovery of the excess payment should
not be ordered, especially when the
employee has subsequently retired. The
court observed that in general parlance,
recovery is prohibited by courts where
there exists no misrepresentation or fraud
on the part of the employee and when the
excess payment has been made by applying a
wrong interpretation/understanding of a
Rule or Order. It was held thus:
"59. Undoubtedly, the excess amount that
has been paid to the appellant teachers
was not because of any misrepresentation
or fraud on their part and the appellants
also had no knowledge that the amount that
was being paid to them was more than what
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they were entitled to. It would not be out
of place to mention here that the Finance
Department had, in its counter- affidavit,
admitted that it was a bona fide mistake
on their part. The excess payment made was
the result of wrong interpretation of the
Rule that was applicable to them, for
which the appellants cannot be held
responsible. Rather, the whole confusion
was because of inaction, negligence and
carelessness of the officials concerned of
the Government of Bihar. Learned counsel
appearing on behalf of the appellant
teachers submitted that majority of the
beneficiaries have either retired or are
on the verge of it. Keeping in view the
peculiar facts and circumstances of the
case at hand and to avoid any hardship to
the appellant teachers, we are of the view
that no recovery of the amount that has
been paid in excess to the appellant
teachers should be made."
13. In State of Punjab v. Rafiq Masih
(White Washer)4 wherein this court
examined the validity of an order passed
by the State to recover the monetary gains
wrongly extended to the beneficiary
employees in excess of their entitlements
without any fault or misrepresentation at
the behest of the recipient. This Court
considered situations of hardship caused
to an employee, if recovery is directed to
reimburse the employer and disallowed the
same, exempting the beneficiary employees
from such recovery. It was held thus:
"8. As between two parties, if a
determination is rendered in favour of the
party, which is the weaker of the two,
without any serious detriment to the other
(which is truly a welfare State), the
issue resolved would be in consonance with
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the concept of justice, which is assured
to the citizens of India, even in the
Preamble of the Constitution of India. The
right to recover being pursued by the
employer, will have to be compared, with
the effect of the recovery on the employee
concerned. If the effect of the recovery
from the employee concerned would be, more
unfair, more wrongful, more improper, and
more unwarranted, than the corresponding
right of the employer to recover the
amount, then it would be iniquitous and
arbitrary, to effect the recovery. In such
a situation, the employee's right would
outbalance, and therefore eclipse, the
right of the employer to recover.
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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 hereinabove, we may, as a
ready reference, summarise the following
few situations, wherein recoveries by the
employers, would be impermissible in law:
(i) Recovery from the employees belonging
to Class III and Class IV service (or
Group C and Group D service).
(ii) Recovery from the retired employees,
or the employees who are due to retire
within one year, of the order of recovery.
(iii) Recovery from the 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
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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.""
14. The above decision would indicate that
recovery post retirement is impermissible if the
alleged excess payment is made before five years
before the order of recovery was passed.
15. The above decision would indicate that
recovery after retirement is impermissible. In
light of this, so far as the reliance of learned
AGP Mr. Henil Shah on the decision in the case
of Balbir Singh Bhandari v. State of
Uttarakhand, rendered in Civil Appeal No. 5933
of 2023 and allied matters, decided on
10.01.2024, is concerned, the said decision
pertains to a case where a special class of
'Ayurvedic' and 'Unani' medical officers was
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created and they were given favourable treatment
without there being any valid reason to grant a
higher pay scale.
16. In the instant case, there is nothing on
record to show that the present petitioner was
given any special treatment, and even the
impugned order nowhere indicates that the
petitioner is a beneficiary of any such special
treatment, and therefore, the aforesaid decision
shall not apply to the case on hand.
17. As noted earlier, during the course of
arguments, learned Advocate Meet Shah submitted
that, at present, the petitioner is receiving
his salary as per the revised pay scale, which
is lower than the First and Second Higher Pay
Scales that were allegedly granted to him
erroneously; therefore, what is challenged by
way of this petition is the action of the
respondents in imposing recovery and directing
him to refund or repay the excess amount paid.
18. As far as the decision in the case of
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'Balbir Singh Bhandari' (Supra), relied on by
learned AGP, Mr. Henil Shah, is concerned, such
a decision was rendered by taking into
consideration the fact that a special class of
'Ayurvedic' and 'Unani' medical officers were
created and they were given favourable
treatment, without there being any valid reason
to grant higher pay-scale.
19. In the instant case, there is nothing on
record to show that the present petitioner was
given any special treatment, and even the
impugned order nowhere indicates that the
petitioner is a beneficiary of any such
treatment; therefore, the aforesaid decision
shall not apply to the case on hand.
20. Learned advocate Mr. Meet Shah, at this
stage, states that the petitioner is not in a
position to dispute that his pension was fixed
erroneously by paying him at a higher pay scale;
however, as far as the petitioner's existing
pension being paid at the correct rate is
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concerned, he is agreeable to the same.
21. Learned advocate Mr. Meet Shah, at this
juncture, could not dispute the affidavit-in-
reply filed by the learned AGP and conceded that
the petitioner is entitled to the rate of
pension he was receiving prior to the order of
recovery. Therefore, he submitted that this
Court may pass an appropriate order with respect
to the recovery.
22. Considering the aforesaid decision, as well
as the fact that the petitioner cannot be
attributed with the mistake committed by the
respondents in fixing his pension at a higher
rate, the action of recovering the excess
pension is hereby quashed and set aside. If any
amount has been recovered from the petitioner
and has not been repaid, the respondents are
directed to repay the same. However, since the
action was bonafide, no interest shall be
payable thereon.
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23. With the above observations and directions,
the petition is partly allowed. The impugned
action of the respondents in recovering the
excess pension paid to the petitioner is hereby
quashed and set aside. Rule is made absolute to
the aforesaid extent only. No order as to costs.
(NIRZAR S. DESAI,J)
Pallavi
