Allahabad High Court
Pramod Kumar Sharma vs State Of U.P. And 4 Others on 1 July, 2025
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:101225 Court No. - 4 Case :- WRIT - A No. - 18751 of 2023 Petitioner :- Pramod Kumar Sharma Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Amit Goel Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J.
1. Heard learned counsel for petitioner and learned Standing Counsel representing State respondents.
2. By means of this petition filed under Article 226 of the Constitution petitioner has challenged the order of recovery proceedings initiated by the respondents for alleged wrongful pay fixation for which it was claimed that petitioner got paid excess amount of salary.
3. Learned counsel for the petitioner has argued that petitioner was not at all responsible for any particular pay fixation which is alleged by the respondents to have been wrongly done and has resulted in excess payment of salary to the petitioner. Pleadings to this effect has been taken in the writ petition.
4. Besides above it is argued that even if the correction was to be carried out and it was determined that petitioner had been paid excess salary, then no recovery could have been made from him, he being not responsible for the same. Thus, learned counsel for the petitioner has argued that neither on principle of of suppressio veri, nor on the principle of suggestio falsi petitioner in any manner can be held responsible for alleged wrongful pay fixation.
5. Learned counsel for the petitioner has also relied upon the judgment of Supreme Court in the case of State of Punjab and others v. Rafiq Masih (White Washer) (2015) 4 SCC 334 as well as another judgment of Supreme Court in the case of Thomas Daniel v. State of Kerala and others, AIR 2022 SC 2153. Paragraph 12 of the judgment of Rafiq Masih (supra) is reproduced hereunder:
"12. 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."
6. Paragraphs 9, 10, 11 and 12 of the judgment of Thomas Daniel (supra) is also reproduced hereunder:
"9. This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if 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, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.
10. In Sahib Ram v. State of Haryana 1995 1995 Supp (1) SCC 18 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 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 India (2006 11 SCC 709) 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 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 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 Bihar (2009) 3 SCC 475 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 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."
7. A counter affidavit has been filed in the matter by the respondents and in reply only this much has been stated that the re-fixation was done as per the Government order dated 8th December, 2008.
8. Thus, it is not denied that petitioner was not responsible in any manner for alleged wrongful pay fixation and so the judgment of High Court of Punjab and Haryana & others v. Jagdev Singh 2016 (14) SCC 267 will not be applicable, in which it was held that the principle enunciated in Proposition (ii) above cannot apply to a situation where undertaking was given at the time of pay fixation to refund for wrong fixation if detected later. 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.
9. One more stand has been taken by learned Standing Counsel that since the petitioner has given undertaking at the time of retirement that if any excess amount is paid he would refund the same.
10. In my considered view, this would not apply to attract the judgment of Supreme Court in the case of Jagdev Singh (supra). What has been held in the case of Jagdev Singh (supra) and what has been genuine also that undertaking should have been furnished by employee at the time of pay-fixation. This is not a case in hand. Any employee if has furnished any undertaking at the time of retirement that he would be refunding the excess amount, this undertaking is to be taken only in respect of any wrongful computation of pension amount as per the last pay drawn and also the computation amount and calculation of other post retirement dues.
11. Such an undertaking cannot be read to mean that employee intended an exercise of re-fixation to be undertaken against him from a back date and that too without notice to him and to further invite resultant recovery due to assessment of excess salary on account of such alleged wrongful pay-fixation.
12. Thus any declaration at the time of retirement would not amount to a declaration within the meaning of the judgment of Supreme Court in the case of Jagdev Singh (supra).
13. It is further observed that any option if exercised on a printed format by an employee while exercising the option, and if he did not make particularly any misrepresentation by moving a separate application, such an exercise of option was if approved by the authority, then it is the approving authority who is to be blamed for such pay fixation. Besides this if option is exercised much before the age of superannuation and the error is not detected for the fault of the authority for a considerably long period of time, then the beneficiary cannot be blamed and under the Government order dated 16th January, 2007, no re-fixation can be directed beyond a period of 34 months back from the date of retirement. This Government order has further been interpreted in the judgment of this Court in the case of Sushil Kumar Singhal v. Pramukh Sachiv Irrigation Department and others, 2014 (16) SCC 444, in which vide paragraph 11 the Supreme Court has held thus:
"11. The submission made on behalf of the learned counsel appearing for the respondent that the appellant would be getting more amount than what he was entitled to cannot be accepted in view of the policy laid down by the Government in G.O. dated 16th January, 2007. If the Government feels that mistakes are committed very often, it would be open to the Government to change its policy but as far as the G.O. dated 16th January, 2007 is in force, the respondent-employer could not have passed any order for recovery of the excess salary paid to the appellant or for reducing pension of the appellant."
14. In view of the above, therefore, the action by the respondents based upon any declaration made by the employee at the time of re-fixation by choosing an option, would not give any license or certificate to the respondents to rectify the error in pay fixation at the time of retirement and to pass order for consequential recovery.
15. Now, looking to the judgment in the case of Rafiq Masih (supra) where such recovery has been held to be absolutely barred from the retiral dues of the Class III and Class IV employees (Group- C and Group -D category), the orders impugned in writ petitions are held unsustainable.
16. In view of the above, the impugned order of recovery dated 27.12.2022 and that of February 2023 are hereby quashed. The writ petition is allowed.
17. Since ignorance of law is no excuse and once the Supreme Court has given judgment in the case of Rafiq Masih (supra) followed in the case of Thomus Denial (supra), the State respondents cannot justify the action of recovery and hence the petitioner is entitled for refund of money along with interest which is assessed to be 8%.
18. Let the entire amount recovered from the petitioner pursuant to the order impugned dated 27.12.2022 and that of February 2023 along with interest at the rate of 8% be refunded to him within a maximum period of two months from the date of production of certified copy of this order. It is further provided that in the event refund is not paid and pension is not corrected and arrears of difference are not paid within time frame prescribed above, petitioner would be entitled to a further interest @ 12 % from the date of expiry of two months till actual payment is made.
Order Date :- 1.7.2025 Nadeem