# Anil Kumar Gangwar v. State of U.P. & Ors

- **Citation:** (2025) 1 ILRA 435
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-23
- **Case number:** Writ-A No. 8637 of 2024
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-gangwar-v-state-of-u-p-ors-52871
- **Pages:** 10

## Headnote

A. Service Law-Constitution of India,1950Article
226-Petiioner
retired
on
30.04.2021-initially his pension was fixed
at Rs. 56,200-Later authorities reduced
his pay and ordered recovery, leading to
multiple writ petitions-High court quashed
the recovery order and directed fresh
proceedings after issuing a show cause
notice-A
new
recovery
order
was
challenged where the court stayed the
recovery-Held, As per Supreme Court
judgment in Rafiq Masih and Jagdish
Singh Case, retrospective recovery from
retirees is impermissible-The petitioner's
undertaking was given post-retirement
making Jagdev Singh inapplicable-Pay
fixation cannot be done after a long time
gap-The reduction in pension and recovery
were quashed and the court ordered the
restoration of Rs. 56,200 pension with all
consequential benefits. (Para 1 to 42)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

1 All. Anil Kumar Gangwar Vs. State of U.P. & Ors.
435
board. Accordingly, the entire selection as
such is set aside. The respondents are
directed to finalize the eligibility conditions
and amend the service rules, in case they so
desire. Once they have taken a decision in
this regard, they should publish a fresh
advertisement
clearly
indicating
the
eligibility conditions for the qualification
for the post of Head Operator / Head
Operator (Mechanic) and after publishing
of the said advertisement they should
conduct the recruitment process and
conclude the same at the earliest in
accordance with law. Since two and half
years have lapsed since the advertisement
was issued and many of the candidates may
have become overage, and considering it is
only
on
account
of
the
acts
of
omission/commission of the respondents
that the present recruitment is being set
aside, it would be in the interest of justice,
to permit such candidates who possess
requisite educational qualifications and
have participated in the present recruitment
process
to
participate
in
the
next
recruitment process, ignoring only their
requirement of age.

33. In light of the above, both the writ
petitions are partly allowed.
----------
(2025) 1 ILRA 435
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.01.2025

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-A No. 8637 of 2024

Anil Kumar Gangwar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Shireesh Kumar, Utkarsh Kumar

Counsel for the Respondents:
C.S.C., Anagh Shukla, Jyotinjay Verma,
Ratnesh Chandra

A. Service Law-Constitution of India,1950Article
226-Petiioner
retired
on
30.04.2021-initially his pension was fixed
at Rs. 56,200-Later authorities reduced
his pay and ordered recovery, leading to
multiple writ petitions-High court quashed
the recovery order and directed fresh
proceedings after issuing a show cause
notice-A
new
recovery
order
was
challenged where the court stayed the
recovery-Held, As per Supreme Court
judgment in Rafiq Masih and Jagdish
Singh Case, retrospective recovery from
retirees is impermissible-The petitioner's
undertaking was given post-retirement
making Jagdev Singh inapplicable-Pay
fixation cannot be done after a long time
gap-The reduction in pension and recovery
were quashed and the court ordered the
restoration of Rs. 56,200 pension with all
consequential benefits. (Para 1 to 42)

The writ petition is allowed. (E-6)

List of Cases cited:

1. In Re Anil Kr. Gangwar Vs St. of U.P. & ors.,
Writ A No. 1336 of 2024

2. In Re Anil Kr. Gangwar Vs St. of U.P. & ors.,
Writ A No. 4742 of 2024

3. St. of Punj. & ors.Vs Rafiq Masih(White
washer) (2015) 4 SCC 334

4. Jagdish Prasad Singh Vs St. of Bih. &
ors.(2024) SCC OnLine SC 1909

5. Syed Abdul Qadir Vs St. of Bih. (2009) 3 SCC
475

6. HC of P& H & ors.Vs Jagdev Singh (2016) 14
SCC 267

(Delivered by Hon'ble Abdul Moin, J.)
436 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard.

2. Instant writ petition has been filed
seeking following reliefs:-

"(a) issue a writ, order or
direction in the nature of certiorari
quashing the orders dated 31.07.2024 and
29.08.2024 as contained in Annexure no.11
& 10 respectively to this writ petition.

(b) issue a writ, order or
direction in the nature of mandamus
commanding the opposite parties to not to
reduce the basis monthly pension of the
petitioner from Rs.56,200/- to Rs.52,950/-
per month and restore the monthly basic
pension of the petitioner at Rs.56,200/- per
month and continue to pay him pension at
that rate.

(c)...."

3. Bereft of unnecessary details the
facts of the case as set forth by the
petitioner are that the petitioner retired on
attaining the age of superannuation on
30.04.2021. All the dues were paid to the
petitioner on 22.05.2021. All of sudden,
pay of the petitioner was reduced and a
recovery
ordered
vide
order
dated
31.01.2024, a copy of which is Annexure-2
to the petition.

4. Being aggrieved the petitioner filed Writ
A No.1336 of 2024 In Re Anil Kumar
Gangwar vs State of U.P. & Ors. This Court
vide order dated 19.03.2024, a copy of which is
Annexure-3 to the petition, quashed the order
dated 31.01.2024 and granted liberty to the
respondents to pass a fresh order in accordance
with law but after issuing show cause notice to
the petitioner.

5. A Show Cause Notice dated 03.04.2024,
a copy of which is Annexure-4 to the petition,
was issued to the petitioner. The petitioner claims
to have submitted his reply on 08.04.2024 and
30.04.2024.

6. Vide order dated 10.05.2024, a copy of
which is Annexure-7 to the petition, an order of
recovery was again passed against the petitioner.
Being aggrieved the petitioner filed Writ A
No.4742 of 2024 In Re Anil Kumar Gangwar
vs State of U.P. & Ors. This Court vide interim
order dated 27.06.2024, a copy of which is
Annexure-8 to the petition, stayed the recovery
initiated against the petitioner in pursuance to the
order dated 10.05.2024 until further orders. It is
stated that the said writ petition is still pending
before this Court for consideration.

7. Subsequent thereto the respondent No.2
passed the impugned order dated 31.07.2024, a
copy of which is Annexure-11 to the petition,
whereby the respondent No.3 has been informed
that in pursuance to the order of the writ court
dated 27.06.2024, no recovery is to be made
from the pension of the petitioner but the revised
pension payment order dated 31.07.2024 was
being sent to the respondent No.3.

8. The revised pension payment order
dated 31.07.2024, a copy of which is part of
Annexure-11 to the petition (Page 83), would
indicate that the pay of the petitioner has been
reduced which according to the petitioner was
earlier Rs.56,200/- which now stands reduced
to Rs.52,950/- as indicated in the pension
payment order. This also stands indicated in
the order dated 29.08.2024, a copy of which is
Annexure-10 to the petition, which has been
issued
by
the
Lucknow
Development
Authority, which indicates the earlier pay of
the petitioner was Rs.56,200/- vis a vis
Rs.52,950/- as finds place in the revised
pension payment order.

9. On the basis of the order dated
31.07.2024 another order dated 29.08.2024,
a copy of which is Annexure-10 to the
1 All. Anil Kumar Gangwar Vs. State of U.P. & Ors.
437
petition
was
issued
which
indicates
reduction in the pay of the petitioner which
the petitioner was drawing at the time of
his
retirement
and
the
Lucknow
Development Authority having written to
the bank for deduction of amount of
Rs.35,579/- per month from the pension of
the petitioner. The order also contains a
note for not deducting any amount till
further orders.

10. Being aggrieved the instant writ
petition has been filed.

11. Contention of the learned counsel
for the petitioner is that despite the order of
the writ court dated 19.03.2024 which had
granted liberty to the respondents to pass a
fresh order after due opportunity of hearing
to the petitioner, the Show Cause Notice
dated 03.04.2024 that has been issued to
the petitioner does not indicate any notice
pertaining to any action to be undertaken
for the purpose of reduction of pension of
the petitioner and for making any deduction
from the pension of the petitioner and
consequently the impugned order would be
in the teeth of the judgment and order dated
29.03.2024 passed by the writ court which
has attained finality as such the order
impugned merits to be quashed on this
ground alone.

12. Further, Shri Shireesh Kumar,
learned counsel for the petitioner places
reliance on the judgment of the Hon'ble
Supreme Court in the case of State of
Punjab & Ors vs. Rafiq Masih (White
Washer): (2015) 4 SCC 334 to contend that
no recovery can be made from a retired
employee. Further reliance has been placed
on the recent judgment of the Hon'ble
Supreme Court in the case of Jagdish
Prasad Singh vs State of Bihar & Ors :
2024 SCC OnLine SC 1909 wherein the
Hon'ble Supreme Court after placing
reliance on its earlier judgment in the case
of Syed Abdul Qadir vs State of Bihar :
(2009) 3 SCC 475 has held that a decision
taken by the State Government to reduce an
employee's pay scale and recover the
excess
amount
cannot
be
applied
retrospectively and that too after long time
gap to contend that once the respondents in
the counter affidavit have specifically
averred that the benefit that had been
granted to the petitioner had been granted
on the basis of his alleged option of retiring
at the age of 58 years as such it is apparent
that the said benefits have been given to the
petitioner
a
long
time
back
and
consequently there cannot be any occasion
for re-fixation or recovery.

13. Shri Shireesh Kumar, learned
counsel for the petitioner also points out
that a specific averment has been made in
para 17 of the writ petition that at no stretch
of time has he ever exercised an option for
retirement at the age of 58 years which
averment has not been denied by the
respondents while giving the reply to the
aforesaid para as would be apparent from
perusal of the para 7 of the counter
affidavit filed on behalf of the respondent
No.2 meaning thereby that even the
respondents do not deny that the petitioner
at no stretch of time had given an option for
retirement at the age of 58 years
consequently the respondents on their own
accord had extended the said benefit as a
matter of course as such there cannot be
any occasion of making any recovery from
the petitioner.

14. Responding to the aforesaid
arguments Shri Jyotinjay Verma, learned
counsel appearing for respondent No.2 has
argued on the basis of the averments
contained in the counter affidavit that the
438 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner has received the benefits of
higher pay fixation on account of he having
given the option of retiring at the age of 58
years which entailed benefits in respect of
increments and promotional pay scale to be
granted after completion of 8 years, 14
years, 19 years and 24 years of service.

15. It is contended that as the
petitioner retired at the age of 60 years, he
was entitled to the benefits of increments
and promotional pay scale after completion
of 10 years, 16 years, 19 years and 24 years
of service and thus it is apparent that the
petitioner has been given enhanced benefits
which were admissible to him had he
retired on attaining the age of 58 years and
as
he
has
continued
to
60
years
consequently as he is not entitled to the
enhanced benefit as such a conscious
decision has been taken for reduction of his
pay and for making recovery from the
pension of the petitioner.

16. Shri Verma also argues that the
petitioner had given an affidavit dated
20.05.2021, a copy of which is Annexure-1
to the counter affidavit, whereby the
petitioner had undertaken that in case he
has been given the benefits to which he was
not entitled as per the rules consequently he
would have no objection to the same being
revised and also undertook to refund the
excess amount, if any, that has been paid to
him.

17. Placing reliance on the judgment
of the Hon'ble Supreme Court in the case of
High Court of Punjab & Haryana &
Others vs. Jagdev Singh reported in 2016
(14) SCC 267 the argument is that once the
undertaking has been given by the
petitioner authorizing the respondents to
recover the excess amount or pay back the
same consequently no error has been
committed by the respondents in issuing
the impugned order.

18. Shri Verma has also placed
reliance on the Rules applicable in the
Department more particularly Rule 13(4) of
the Uttar Pradesh Vikas Pradhikaran
Kendriya Sewanivratti Labh Niyamavali,
2011 (hereinafter referred to as 'Rules,
2011') to contend that the said undertaking
has been given by the petitioner in terms of
the aforesaid rule and consequently the
petitioner would be bound by the aforesaid
undertaking that has been given by him.
Consequently no error has been committed
by the respondents while passing the order
impugned.

19. Shri Anagh Shukla, learned
counsel appearing for respondent No.3
states that the order impugned dated
29.08.2024 as has been issued by the
respondent No.3, has been issued on the
basis of letter dated 31.07.2024 that has
been sent by the respondent No.2 and once
re-fixation/reduction of the pay of the
petitioner has been done consequently even
the pension would stand reduced with a
further direction for making recovery from
the pension of the petitioner which
recovery at the moment has been stopped
consequently no error has been committed
by the respondents while passing the order
impugned. He also adopts the arguments of
Shri Jyotinjay Verma, Advocate.

20. Heard learned counsels for the
parties and perused the record.

21. From the arguments as raised by
the learned counsels for the contesting
parties and perusal of record, it emerges
that the petitioner retired on attaining the
age of superannuation on 30.04.2021. An
order dated 31.01.2024 was issued by the
1 All. Anil Kumar Gangwar Vs. State of U.P. & Ors.
439
respondents reducing the pay of the
petitioner and directing for a recovery. The
said order was quashed by the writ court
vide judgment and order dated 19.03.2024.
The respondents were granted liberty to
pass a fresh order. A Show Cause Notice
dated 03.04.2024 was issued to which a
reply was submitted by the petitioner but
vide order dated 10.05.2024 an order of
recovery was again passed against the
petitioner. Said order was challenged in
Writ A No.4742 of 2024 by the petitioner
in which an interim order dated 27.06.2024
was passed and the recovery initiated
against the petitioner was stayed until
further orders which writ petition is still
pending for consideration before this Court.

22. Subsequent thereto, the respondent
No.2 passed the order impugned dated
31.07.2024 whereby the petitioner has been
informed that in pursuance to the order of
this Court dated 27.06.2024 no recovery is
to be made from the pension of the
petitioner but the revised pension payment
order dated 31.07.2024 was being sent to
respondent No.3. A perusal of the revised
pension payment order would indicate that
the pay of the petitioner has been reduced
from Rs.56,200/- which he was drawing
earlier to Rs.52,950/- as indicated in the
pension payment order. This would also be
clear from perusal of the order dated
29.08.2024 which has been passed by the
respondent No.3.

23. On the basis of the order dated
31.07.2024
the
order
impugned dated
29.08.2024 was issued by the respondent
No.3 indicating the reduction in the pay of
the petitioner, which the petitioner was
drawing at the time of his retirement vis a vis
as indicated in the order dated 31.07.2024.
The said order indicates of respondent No.3
having written to the bank for deduction of an
amount of Rs.35,579/- per month from the
pension of the petitioner but the order also
contains a note for not deducting any amount
till further orders.

24. Being aggrieved by the orders dated
31.07.2024 and 29.08.2024, the instant
petition has been filed.

25. Argument of the learned counsel for
the petitioner is on the basis of judgment of
Hon'ble Supreme Court in the case of Rafiq
Masih (supra) wherein the Hon'ble Supreme
Court has held that no recovery can be made
from a retired employee.

26. The judgment of the Hon'ble
Supreme Court in the case of Jagdev Singh
(supra) over which reliance has been placed
by the learned counsel for the respondents
has been distinguished by the learned counsel
for the petitioner on the ground that at the
time of his initial pay fixation, no such
undertaking was given by him rather the
undertaking over which reliance has been
placed by the respondents is an undertaking
dated 25.05.2021 which is subsequent to the
retirement of the petitioner and thus it is
contended that the respondents are precluded
from making any recovery from the
petitioner.

27. Placing reliance on the judgment
of the Hon'ble Supreme Court in the case of
Jagdish
Prasad
Singh
(supra)
the
argument is that even re-fixation cannot be
made as said pay fixation has been done
long time back and the Hon'ble Supreme
Court in the judgment of the Jagdish
Prasad Singh (supra) has held that pay refixation cannot be done after long period of
time.

28. On the other hand, learned counsel
for the respondents has justified the
440 INDIAN LAW REPORTS ALLAHABAD SERIES
recovery from the pension of the petitioner
by contending that as the petitioner had
given an undertaking authorizing the
respondents to recover excess amount from
the petitioner consequently keeping in view
the judgment of the Hon'ble Supreme Court
in the case of Jagdev Singh (supra) they
are within the rights of passing the orders
impugned and for making recovery from
the petitioner after refixation of pay.

29.
Considering
the
aforesaid
arguments,
following
questions
are
required to be considered by this Court,
which are indicated below:-

(a) Whether any recovery can be
made from a retired employee?

(b) In case an undertaking has
been given by an employee authorizing the
respondents to recover wrong fixation then
whether the judgment of the Hon'ble
Supreme Court in the case of Rafiq Masih
(supra) would be attracted? and

(c) Whether refixation of pay can
be done after long period of time?

30. As questions (a) and (b) are
dependent on each other consequently they
are being taken up together for being
decided.

31. The matter pertaining to recovery
from a retired employee has engaged the
attention of the Hon'ble Supreme Court in
the case of Rafiq Masih (supra) wherein
the Hon'ble Supreme Court has held as
under:-

"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."

(emphasized by Court)

32. From perusal of the judgment of
the Hon'ble Supreme Court in the case of
Rafiq Masih (supra), it is apparent that no
recovery is permissible from a retired
employee and consequently it is apparent
that the respondents are precluded from
making any recovery from the petitioner.

33. However, at the same time, the
Court
may
not
lose
sight
of
the
undertaking/affidavit
dated
20.05.2021
which has been given by the petitioner
undertaking before the respondents that in
case he has been given the benefits to
1 All. Anil Kumar Gangwar Vs. State of U.P. & Ors.
441
which he was not entitled as per the rules,
consequently, he would have no objection
for the same being revised and also to
refund the excess amount.

34. At the first blush, the said
undertaking appears to fall within the ambit
of the Hon'ble Supreme Court in the case of
Jagdev Singh (supra). However, the
petitioner admittedly retired on 30.04.2021
while the undertaking /affidavit has been
given on 20.05.2021 i.e. subsequent to the
retirement of the petitioner.

35. In the aforesaid case, Jagdev Singh
(supra) who was working as Civil Judge (Jr.
Division), at the time of being given the
senior scale of pay was required to submit an
undertaking that excess amount which may
be found to have been paid will be refunded
to the Government. In pursuance thereof and
while being paid the revised pay scale,
Jagdev Singh undertook to refund any excess
payment if it was so detected and demanded.
Subsequently the revised pay scale was
allowed to him. A few years later, a letter for
recovery of an alleged excess amount was
served upon Jadgev Singh. The said action
for recovery was challenged before the High
Court wherein the writ petition filed by
Jagdev Singh was allowed. Upon challenge
being raised to the judgement of the High
Court by the Punjab and Chandigarh High
Court before the Supreme Court, the Hon'ble
Supreme
Court
after
considering
the
judgment of Rafiq Masih (supra) held that
the excess amount could be recovered where
an undertaking was specifically furnished
by the officer at the time when his pay was
initially
revised
accepting
that
any
payment found to have been made in
excess would be liable to be adjusted. In
these circumstances, the judgment of Rafiq
Masih (supra) was distinguished.

36. For the sake of convenience, the
relevant observations of Jagdev Singh
(supra) are reproduced as under:-

"2. The facts lie in a narrow
compass. The Respondent was appointed as
a Civil Judge (Junior Division) on 16 July
1987 and was promoted as Additional Civil
Judge on 28 August 1997 in the judicial
service of the State. By a notification dated
28 September 2001, a pay scale of Rs.
10000-325-15200
(senior
scale)
was
allowed under the Haryana Civil Service
(Judicial Branch) and Haryana Superior
Judicial Service Revised Pay Rules 2001.
Under the rules, each officer was required
to submit an undertaking that any excess
which may be found to have been paid will
be refunded to the Government either by
adjustment against future payments due or
otherwise.

3. The Respondent furnished an
undertaking and was granted the revised
pay scale and selection grade of Rs. 14300400-18000-300. While opting for the
revised
pay
scale,
the
Respondent
undertook to refund any excess payment if
it
was
so
detected
and
demanded
subsequently. The revised pay scale in the
selection grade was allowed to the
Respondent on 7 January 2002.

4. The Respondent was placed
under suspension on 19 August 2002 and
eventually, was compulsorily retired from
service on 12 February 2003.

5. In the meantime, this Court in
Civil Writ (C) 1022 of 1989 accepted the
recommendations of the First National
Judicial
Pay
Commission
(Shetty
Commission). Thereupon, the Haryana
Civil Services (Judicial Branch) and
Haryana Superior Judicial Service Revised
Pay Rules 2003 were notified on 7 May
2003.
442 INDIAN LAW REPORTS ALLAHABAD SERIES

6. In view thereof the pay scales
of judicial officers in Haryana were once
again revised with effect from 1 January
1996. An exercise was undertaken for
adjustment of excess payments made to
judicial officers, following the notification
of the revised pay rules. On 18 February
2004, a letter for the recovery of an amount
of Rs. 1,22,003/- was served upon the
Respondent pursuant to the direction of the
Registrar of the High Court.

7. The Respondent challenged the
action for recovery in writ proceedings
Under Article 226. The petition was
allowed by the impugned judgment of the
High Court. The High Court found
substance
in
the
grievance
of
the
Respondent that the excess payment made
to him towards salary and allowance prior
to his retirement could not be recovered at
that stage, there being no fraud or
misrepresentation on his part.

8. The order of the High Court
has been challenged in these proceedings.
From the record of the proceedings, it is
evident that when the Respondent opted for
the revised pay scale, he furnished an
undertaking to the effect that he would be
liable to refund any excess payment made
to him. In the counter affidavit which has
been filed by the Respondent in these
proceedings,
this
position
has
been
specifically admitted. Subsequently, when
the Rules were revised and notified on 7
May 2003 it was found that a payment in
excess had been made to the Respondent.
On 18 February 2004, the excess payment
was sought to be recovered in terms of the
undertaking.

9.
The
submission
of
the
Respondent, which found favour with the
High Court, was that a payment which has
been made in excess cannot be recovered
from an employee who has retired from the
service of the state. This, in our view, will
have no application to a situation such as
the present where an undertaking was
specifically furnished by the officer at the
time when his pay was initially revised
accepting that any payment found to have
been made in excess would be liable to be
adjusted. While opting for the benefit of
the revised pay scale, the Respondent was
clearly on notice of the fact that a future
re-fixation or revision may warrant an
adjustment of the excess payment, if any,
made.

10. In State of Punjab and Ors.
etc. v. Rafiq Masih (White Washer) etc. this
Court held that while it is not possible to
postulate all situations of hardship where
payments have mistakenly been made by an
employer, in the following situations, a
recovery by the employer 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.
1 All. Anil Kumar Gangwar Vs. State of U.P. & Ors.
443

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".

(emphasized by Court)

37. In the instant case, as per the
respondents themselves, erroneous fixation of
pay has occurred on account of the petitioner
being given enhanced benefits by treating his
retirement at 58 years vis a vis 60 years at
which he admittedly retired which resulted in
the petitioner being given increments and
promotional pay scale after completion of 8
years, 14 years, 19 years and 24 years of
service instead of on completing 10 years, 16
years, 19 years and 24 years of service.
Obviously, the said benefits were given to the
petitioner at the time when he was in service
and thus the undertaking which has been
given by the petitioner subsequent to his
retirement on 30.04.2021 on 20.05.2021
would not authorize or empower the
respondents from making any recovery from
the dues/pension of the petitioner.

38. Accordingly, judgment of the
Hon'ble Supreme Court in the case of
Jagdev Singh (supra) would have no
applicability to the facts of the instant case
so as to authorize the respondents from
recovering any amount from the petitioner
in pursuance to the undertaking given by
him. Both the questions stand decided
accordingly.

39. So far as question (c) is concerned,
Hon'ble Supreme Court in the case of
Jagdish Prasad Singh (supra) has held as
under:-

"21. We firmly believe that any
decision taken by the State Government to
reduce an employee's pay scale and
recover the excess amount cannot be
applied retrospectively and that too after a
long time gap. "

40. From perusal of the judgment of
the Hon'ble Supreme Court in the case of
Jagdish Prasad Singh (supra), it clearly
emerges that the Hon'ble Supreme Court
has held that an employee's pay scale
cannot be reduced after a long time gap.

41. In the instant case, as per the
respondents themselves the wrong fixation
appears to have occurred on account of
petitioner being granted the benefits of
increment and promotional pay scale on
completion of 8 years, 14 years, 19 years
and 24 years of service vis a vis 10 years,
16 years, 19 years and 24 years of service
to which he was actually entitled meaning
thereby that the pay fixation, grant of
increments and grant of promotional pay
scale occurred a long time back. Thus
keeping in view the judgment of the
Hon'ble Supreme Court in the case of
Jagdish
Prasad
Singh
(supra)
the
respondents are
clearly precluded in
refixing the pay and consequently the
pension of the petitioner. The said question
also stands answered accordingly.

42. Keeping in view the aforesaid
discussion, the writ petition is allowed. A
writ of certiorari is issued quashing the
order dated 31.07.2024 and 29.08.2024,
copies of which are Annexure-11 and 10
respectively. A writ of mandamus is issued
commanding the respondents to pay
monthly pension to the petitioner on the
444 INDIAN LAW REPORTS ALLAHABAD SERIES
basis of pay of the petitioner of Rs.56,200/-
along with all consequential benefits.
----------
(2025) 1 ILRA 444
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2025

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 9166 of 2024

Gopal Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Dinesh Mishra, Prabhakar Awasthi

Counsel for the Respondents:
C.S.C.

CIVIL LAW - Constitution of India,1950 -
Article 226, - Uttar Pradesh Government
Servant (Discipline and Appeal) Rules,
1999 - Rule 10(2) - Uttar Pradesh
Government
Servant's
Conduct
Rules,
1956- Writ Petition - The petitioner was
involved in a dispute over the charge of
Executive
Engineer,
Irrigation
Construction
Division-II, Lalitpur - The Engineer-in-Chief
ordered that the charge be handed over to
Chhatrapati Singh, but Bhagirathi Singh refused
to comply, leading the petitioner to enforce the
directive
-
subsequently,
a
manipulated
complaint
resulted
in
Chhatrapati
Singh's
suspension, prompting him to file a writ petition,
which led to an interim order - While responding
to the writ petition through a narrative para no.
11
remained
unanswered
-
Among
five
responsible officers who vetted the narrative,
only the petitioner was issued a show cause
notice, alleging service misconduct - The
petitioner argued that the charges were
baseless and motivated by malice, while the
respondents claimed misuse of power and
collusion - The court found no substantive
evidence proving that the petitioner deliberately
ensured a deficient narrative - In the absence of
material linking the petitioner to the omission of
para no. 11, the impugned order, which held
him guilty of misconduct, lacked merit - because
mala fides has not been urged against a
definitive persons with sufficient pleadings or
the man impleaded eo nomine - held, the
impugned order cannot be sustained and must
perish - petition succeeded and is allowed.(Para
- 19, 24, 25, 26, 28)

Writ Petition Allowed. (E-11)

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed against
an order passed by the State Government
dated 24.05.2024, inflicting the petitioner
with the penalty of censure after a show
cause notice for an act of service
misconduct.

2. The petitioner entered service of the
Department
of
Irrigation
and
Water
Resources as an Assistant Engineer way
back on 10.02.1991. He was promoted to
the post of an Executive Engineer on
19.04.2000 and then as a Superintending
Engineer on 20.01.2009. Still later, on
01.06.2018, he was promoted as a Chief
Engineer, Level-II. He got a further
promotion to the position of Chief
Engineer, Level-I on 30.06.2022. As
appears from the record, one Chhatrapati
Singh, Executive Engineer, Research and
Planning
Division-I,
Sinchai
Bhawan
Annexe, Lucknow was directed to be given
additional
charge
of
the
Executive
Engineer, Irrigation Construction DivisionII, Lalitpur by an order of the Engineer-inChief and Head of the Department,
Irrigation
and
Water
Resources
Department, U.P. This charge was in
addition to his duties at Lucknow and the
arrangement was made for a period of six
months until a regular incumbent was
posted. The order was passed by the
Engineer-in-Chief
in
the
interest
of