# Lalta Ram v. State of U.P. & Ors - **Citation:** (2021) 8 ILRA 134 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2020-10-29 - **Case number:** Service Single No. 24589 of 2020 - **Bench:** Rajesh Singh Chauhan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalta-ram-v-state-of-u-p-ors-47163 - **Pages:** 4 ## Headnote A. Service Law - Post-retiral dues - The petitioner was given pay-scale of Rs. 4500-7000 after completion of 24 years of service and later on after modification of the Government Order the pay-scale was upgraded to Rs. 5000-8000. The competent authority carried out the impugned exercise after 15 months from retirement of the petitioner without modifying the order until the petitioner approached this Court for retrieving his post retiral dues. The competent authority cannot deduct the excess payment from the post retiral dues of the petitioner without modifying the order by providing him the opportunity of hearing. (Para 8) Writ Petition Allowed. (E-8) List of Cases cited:- ## Text 134 INDIAN LAW REPORTS ALLAHABAD SERIES vs. Union of India (supra) the impugned order dated 29.10.2020 passed by the Commissioner Food and Civil Supply (Annexure No.1) is not sustainable in the eyes of law being illegal, arbitrary, discriminatory and violating the Article 14 of the Constitution of India and is liable to be set aside/quash. 16. Accordingly, the writ petition is allowed. 17. A writ in the nature of certiorari is issued quashing the impugned order dated 29.10.2020 passed by the Commissioner Food and Civil Supply(respondent No.2) which is contained as Annexure No.01. 18. A writ in the nature of mandamus commanding the opposite parties to promote the petitioner from post of Junior Clerk to the post of Marketing Inspector w.e.f. 26.09.2019. The petitioner shall be entitled for all consequential service benefits including seniority etc. 19. No order as to costs. ---------- (2021)08ILR A134 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 06.08.2021 BEFORE THE HON'BLE RAJESH SINGH CHAUHAN , J. Service Single No. 24589 of 2020 Lalta Ram ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Prahlad Maurya Counsel for the Respondents: C.S.C. A. Service Law - Post-retiral dues - The petitioner was given pay-scale of Rs. 4500-7000 after completion of 24 years of service and later on after modification of the Government Order the pay-scale was upgraded to Rs. 5000-8000. The competent authority carried out the impugned exercise after 15 months from retirement of the petitioner without modifying the order until the petitioner approached this Court for retrieving his post retiral dues. The competent authority cannot deduct the excess payment from the post retiral dues of the petitioner without modifying the order by providing him the opportunity of hearing. (Para 8) Writ Petition Allowed. (E-8) List of Cases cited:- 1. St. of Punj. & ors. Vs Rafiq Masih (White Washer) (2015) 4 SCC 334 (followed) 2. Sushil Kumar Singhal Vs Principal Secretary, Irrigation & ors. (2014) 16 Supreme Court Cases 444 (Delivered by Hon'ble Rajesh Singh Chauhan, J.) 1. Heard Sri Prahlad Maurya, learned counsel for the petitioner and Sri Virendra Kumar Srivastava, learned Standing Counsel for the State respondents. 2. By means of this petition the petitioner has prayed following relief: (i) issue a writ of certiorari by quashing the order impugned dated 21.09.2020 and 19.11.2020 passed by the opposite party no. 2 contained in Annexure No. 1 & 2 respectively. 8 All. Lalta Ram Vs. State of U.P. & Ors. 135 (ii) writ order or direction in the nature of mandamus commanding the opposite parties by directing them to release the amount Rs. 7,61,124/- which was stopped illegally, with compound interest to the petitioner, in the interest of justice." 3. The learned counsel for the petitioner has contended that the petitioner retired on 30.6.2019 from the post of Health Educator, Class III post in the Leprosy Department from the office of District Leprosy Officer, Azamgarh. After his retirement he completed all requisite formalities of getting post retiral dues but the dues have not been paid to him till the month of July, 2020, therefore, he filed a writ bearing Service Single No. 10724 of 2020 ( Lalta Ram vs. State of U.P. Thru Addl. Chief Secy. Medical & Health & Ors.) and the said writ petition was decided finally on 10.7.2020 whereby this Court directed the opposite parties to dispose of the writ petition of the petitioner dated 20.6.2020 whereby he has requested for payment of post retiral dues. Such order has been enclosed with the writ petition as Annexure no. 15. After getting certified copy of the order dated 10.7.2020 the petitioner preferred a representation dated 14.7.2020 to all opposite parties requesting that his port retiral dues be paid. 4. In compliance of the order dated 10.7.2020 passed by this Court the Finance Controller of the office of Director General, Medical, Health & Family Welfare disposed of the representation of the petitioner by passing order dated 21.9.2020. By means of order dated 21.9.2020 the pay scale of the petitioner has been revised with effect from 12.7.2002 when the petitioner had completed 24 years of his service. Not only the above consequent to the order dated 21.9.2000 the amount to the tune of Rs. 7,61,124/- has been deducted from the retiral dues of the petitioner on the ground that such amount has been paid excess to the petitioner by wrong fixation of his salary in the year 2002. Both the orders dated 21.9.2020 and 19.11.2020 have been impugned in the writ petition enclosing Annexure nos. 1 & 2 respectively. 5. The learned counsel for the petitioner has submitted that in view of the para 18 of the judgment of Hon'ble Apex Court in re State Of Punjab & Ors vs Rafiq Masih (White Washer) (2015) 4 SCC 334 no such recovery can be made from the post retiral dues of the petitioner, after his retirement as he retired from the post of Class-III. For convenience para 18 of the judgment is being reproduced herein below: "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 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. 136 INDIAN LAW REPORTS ALLAHABAD SERIES (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. He has further submitted that even otherwise his promotional pay scale to the tune of Rs. 4500-7000 was not refixed but in terms of government order dated 3.9.2001 (Annexure no. 4) the pay scale of Rs. 4500-7000 has been upgraded up to Rs. 5000-8000. The order dated 31.3.2009 (Annexure no. 5) was issued by the Chief Medical Officer, Azamgarh without any representation or misrepresentation on the part of the petitioner and the petitioner got such pay scale and other consequential benefits till his retirement by 30.6.2019. He has also submitted that when the post retiral benefits have not been paid to the petitioner after his retirement for more than one year and this Court has indulged directing the opposite party to dispose of the representation regarding payment of post retiral dues, the impugned order dated 21.9.2020 has been passed. The impugned order dated 21.9.2020 has been passed after about 15 months from the dated of retirement of the petitioner. As per Sri Prahlad Maurya if any modification was at all required, it could have been done after 31.3.2009 before 30.6.2019. However, no such modification was at all required inasmuch as the petitioner was paid the proper pay-scale strictly in accordance with law and as per various government orders. 7. Per contra, learned Standing Counsel has submitted that the fixation of pay scale of the petitioner as Rs. 5000-8000 in place of Rs. 4500-7000 is wrong inasmuch as those government servants whose post is not promotional are entitled for the promotional pay scale but the petitioner had already got two promotions and after getting promotion his pay-scale was fixed as Rs. 4500-7000, therefore, he should not be given the upgraded pay scale of Rs. 5000-8000. Learned Standing Counsel has also placed reliance on para no. 3 of the counter affidavit by saying that a deduction of earlier payment was made from the petitioner on account of wrong pay fixation. 8. Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that in view of para 18 of the judgment of Rafiq Masih (supra) the impugned order dated 21.9.2020 could have not been passed and the consequential deductions could have also not been made from the post retiral dues of the petitioner. It has nowhere been indicated in the entire counter affidavit that for getting the benefit of revised pay-scale of Rs. 5000-8000 petitioner had ever mis-represented to the competent authorities, rather vide order dated 31.3.2009 passed by Chief Medical Officer, Azamgarh (Annexure no. 5) the petitioner was allowed the pay-scale of Rs. 4500-7000 after completion of 24 years of service and later on after modification of the Government Order the pay-scale of Rs. 4500-7000 is upgraded in pay scale of Rs. 5000-8000. If at all there was any error in making such payment vide order dated 31.3.2009, the authority competent could have modified this order by providing an opportunity of hearing to the petitioner on or before his retirement as the petitioner 8 All. Pradeep Kumar Vs. State of U.P. & Ors. 137 retired from service on 30.6.2019 but no such exercise has been carried out. Admittedly, the impugned exercise has been carried out after 15 months from retirement of the petitioner when the petitioner approached this Court for getting post retiral benefits and this Court directed the competent authority to dispose of the representation of the petitioner. Therefore, the concerned opposite parties may not deduct excess payment from the post retiral dues of the petitioner who retired from Class III post in view of the dictum of Hon'ble Apex Court in the case of Rafiq Masih (supra). It is also to be noted that before passing impugned order no opportunity of hearing of any kind whatsoever had been provided to the petitioner, therefore, on that account too the impugned order dated 21.9.2020 is patently illegal, arbitrary, discriminatory and uncalled for and same is not sustainable in the eyes of law. 9. Besides, in view of the dictum of Apex Court in re: Sushil Kumar Singhal vs. Principal Secretary, Irrigation and others reported in (2014) 16 Supreme Court Cases 444 neither the excess amount, which has been paid w.e.f. 12.7.2002 when the petitioner completed 24 years of service, may be recovered from the petitioner nor his pension can be reduced. Para 7 of the aforesaid judgment is being reproduced herein below : "Upon perusal of the aforestated G.O, and the submission made by the learned counsel appearing for the appellant, it is not in dispute that the appellant had retired on 31-12-2003 and at the time of his retirement his salary was Rs 11.625 and on the basis of the said salary his pension had been fixed as Rs 9000 Admittedly, if any mistake had been committed in pay fixation, the mistake had been committed in 1986 i.e. much prior to the retirement of the appellant and therefore, by virtue of the aforestated G.O. dated 16-1-2007, neither any salary paid by mistake to the appellant could have been recovered nor pension of the appellant could have been reduced." 10. Accordingly, the writ petition is allowed. 11. A writ in the nature of certiorari is issued quashing the order dated 21.9.2020 passed by the Finance Controller, Medical & Health Services, U.P., Lucknow (Annexure no. 1 to the writ petition). 12. A writ in the nature of mandamus is issued commanding the opposite parties not to deduct any amount from the petitioner in the name of excess amount paid and release his entire amount already deducted from the post retiral dues of the petitioner with promptness preferably within a period of three months failing which the petitioner shall be entitled for the interest @ 8%. 13. No order as to costs. ---------- (2021)08ILR A137 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 25.08.2021 BEFORE THE HON'BLE ABDUL MOIN, J. Service Single No. 24958 of 2018 Pradeep Kumar ...Petitioner Versus State of U.P. & Ors. ...Respondents