# Naresh Kumar Mishra, Pno No. 822590316 v. State of U.P. & Ors

- **Citation:** (2024) 7 ILRA 110
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-30
- **Case number:** Writ A No. 5911 of 2024
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naresh-kumar-mishra-pno-no-822590316-v-state-of-u-p-ors-54517
- **Pages:** 4

## Headnote

A. Service Law- Constitution of India,
1950-Article 226-retrospective revision of
salary- the petitioner, a retired SubInspector, challenged the retrospective
revision of his salary and recovery of Rs.
5,38,781 from his commuted pension by
the State of U.P.-No specific undertaking
was provided at the time of receiving the
excess payment, and the retrospective
salary revision violated a Government
Order dated 16.01.2007 limiting recovery
to the last 34 months prior to retirement -
The court relied the precedents set in
Sushil Kumar Singhal case and Rafiq
Masih Case which restricted recovery of
excess payments in the absence of an
explicit undertaking-The court quashed
the impugned orders, directing the refund
of the recovered amount and ordered the
fixation of the petitioner's pension based
on his last drawn salary at the time of
retirement.(Para 1 to 12)

The petition is allowed. (E-6)

List of Cases cited:

## Text

110 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner's mother's re-determined
status. The necessary orders shall be passed
by the fourth respondent as well as the
other respondents, whoever be concerned,
within a period of one month of receipt of a
copy of this judgment.

21. There shall be no orders as to
costs.

22. Let a copy of this order be
communicated to the Principal Chief
Conservator of Forest, Rana Pratap Marg,
Lucknow, the Conservator of Forest,
Prayagraj
Circle,
Prayagraj
and
the
Divisional Forest Officer, Social Forestry
& Wildlife Division, Pratapgarh by the
Senior Registrar.
----------
(2024) 7 ILRA 110
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.07.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ A No. 5911 of 2024

Naresh Kumar Mishra, Pno No. 822590316
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ram Charitra Pandey, Shashank Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law- Constitution of India,
1950-Article 226-retrospective revision of
salary- the petitioner, a retired SubInspector, challenged the retrospective
revision of his salary and recovery of Rs.
5,38,781 from his commuted pension by
the State of U.P.-No specific undertaking
was provided at the time of receiving the
excess payment, and the retrospective
salary revision violated a Government
Order dated 16.01.2007 limiting recovery
to the last 34 months prior to retirement -
The court relied the precedents set in
Sushil Kumar Singhal case and Rafiq
Masih Case which restricted recovery of
excess payments in the absence of an
explicit undertaking-The court quashed
the impugned orders, directing the refund
of the recovered amount and ordered the
fixation of the petitioner's pension based
on his last drawn salary at the time of
retirement.(Para 1 to 12)

The petition is allowed. (E-6)

List of Cases cited:

1. Sushil Kumar Singhal Vs Pramukh Sachiv
Irrgn. Deptt. & ors., Civil Appeal No. 5262 of
2008,

2. St. of U.P. & ors. Vs Suresh Kumar Tripathi
Writ-A No.3194 of 2022

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

4. HC of Punj. & Hary. & ors. Vs Jagdev Singh
(2016) 14 SCC 267,

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Shashank Pandey,
learned counsel for the petitioner and Sri
Amarnath Singh Baghel, learned Standing
Counsel for the State-opposite parties.

2. By means of this petition, the
petitioner has prayed following main
reliefs:-

"(i) Issue a writ, order or
direction in the nature of certiorari to
quash
the
impugned
order
dated
20.02.2024 passed by Opposite Party No.2
after summoning the same by which
7 All. Naresh Kumar Mishra, Pno No. 822590316 Vs. State of U.P. & Ors.
111
petitioner's salary has been revised since
20.12.2006 as mentioned in letter dated
07.03.2024 contained in Annexure No.1 &
order dated 14.05.2024 passed by Opposite
Party No.3 after summoning the same in
pursuance of the order dated 20.02.2024
whereby the recovery of Rs.5,38,781/- has
been done as mentioned in letter dated
29.05.2024 contained in Annexure No.2
and further be pleased to quash PPO, GPO
& CPO dated 18.04.2024 as contained in
Annexure No.3 & 4 respectively to this writ
petition.

(ii) Issue a writ, order or
direction in the nature of mandamus
directing Opposite Parties to repay/refund
the
deducted/recovered
amount
Rs.5,38,781 /- along with interest at the
rate of 12% per annum deducted from
commuted pension payable to the petitioner
and further be pleased to direct the
Opposite Parties to fix the pension of the
petitioner on the basis of last basic pay
Rs.64,100/- drawn by the petitioner at the
time of retirement."

3. Learned Standing Counsel has
submitted that he has received complete
instructions from the Superintendent of
Police,
Rampur,
therefore,
those
instructions may be perused, the same are
taken on record.

4. As per the aforesaid instructions
itself, the petitioner retired from the post of
Sub Inspector, which is a Class-III post, on
30.04.2023 and one undertaking has been
received from him on 21.03.2023, which is
before his retirement. As per the aforesaid
undertaking, no specific undertaking has
been taken from the petitioner in respect of
any particular payment if that has been
given in excess to its admissibility would
be
recoverable.
Besides,
on
typed
proforma, general undertaking has been
taken from the petitioner and on one typed
proforma, one indemnity bond has been
taken from the petitioner without filling the
detail of the petitioner properly. The
aforesaid fact makes it crystal clear that as
an eyewash, the undertaking was taken
from the petitioner without indicating
specifically that if any excess amount is
paid to the petitioner at particular time, the
same may be recovered from him. Perusal
of the impugned order clearly reveals that
the benefit of pay scale was provided to the
petitioner w.e.f. 01.12.2008 and at the time
of making such payment, admittedly, no
undertaking was taken from the petitioner
by the Department and the impugned
amount, which has been recovered from the
petitioner at the time of his retirement, is
relating to the year 2008.

5. Learned counsel for the
petitioner has drawn attention of this Court
towards Annexure No.7 of the writ petition,
which is a Government Order dated
16.01.2007
passed
by
the
Principal
Secretary of Finance addressing to all the
Head of Departments of the State of U.P.
wherein vide para-4 (1), it has been
categorically indicated that at the time of
retirement or after the retirement, record of
the employee of last 34 months may be
examined, not beyond that, but in the
present case, record of the petitioner is
being examined from the year 2008, which
is much beyond the period of 34 months.
Attention has been drawn towards the
judgment and order dated 17.04.2014
passed by the Apex Court in re; Sushil
Kumar Singhal Vs. Pramukh Sachiv
Irrigation Department & Others, Civil
appeal No.5262 of 2008, referring paras 7,
10 & 11, which read as under:-

"7.
Upon
perusal
of
the
aforestated G.O. and the submission made
112 INDIAN LAW REPORTS ALLAHABAD SERIES
by the learned counsel appearing for the
appellant, it is not in dispute that the
appellant had retired on 31st December,
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 16th January, 2007,
neither any salary paid by mistake to the
appellant could have been recovered nor
pension of the appellant could have been
reduced.

10. For the aforestated reasons,
we quash the impugned judgment delivered
by the High Court and direct the
respondents not to recover any amount of
salary which had been paid to the appellant
in pursuance of some mistake committed in
pay fixation in 1986. The amount of
pension shall also not be reduced and the
appellant shall be paid pension as fixed
earlier at the time of his retirement. It is
pertinent to note that the Government had
framed such a policy under its G.O. dated
16th January, 2007 and therefore, the
respondent authorities could not have taken
a different view in the matter of re-fixing
pension of the appellant.

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."

6. The Apex Court has interpreted
the purport and intent of Government Order
dated 16.01.2007 and has observed that the
respondent-employer could not have passed
any order for recovery of excess salary paid
to the appellant or for reducing the pension of
the appellant beyond such period.

7. Learned counsel for the petitioner
has also drawn attention of this Court towards
the judgment and order dated 16.07.2024
passed by the Division Bench of this Court in
Writ-A No.3194 of 2022, State of U.P. and
Others Vs. Suresh Kumar Tripathi,
whereby the judgment of the Apex Court in
re; Sushil Kumar Singhal (supra) has been
followed dismissing the writ petition filed by
the State holding that if any recovery has
been proposed or executed against the
employee after his retirement or at the time of
his retirement in derogation of the dictum of
the Apex Court in re; Sushil Kumar Singhal
(supra) and State of Punjab and others v.
Rafiq Masih (White Washer) and others,
(2015) 4 SCC 334, such recovery may not be
permissible. Besides, the judgment of Rafiq
Masih (supra) has been clarified by the Apex
Court in re; High Court of Punjab and
Haryana and others v. Jagdev Singh,
(2016) 14 SCC 267, wherein it has been held
by the Apex Court that if at the time of
making excess payment, if any, any specific
and categoric undertaking is received from
the employee, such amount may be recovered
but in absence of such undertaking at the time
of making excess payment, the benefit of the
judgment in re; Rafiq Masih (supra) would be
provided to the employee concerned.

8. Learned Standing Counsel has
tried to defend the impugned order dated
20.02.2024 passed by opposite party no.2
7 All. Jakir Husain Vs. State of U.P. & Ors.
113
and the order dated 14.05.2024 passed by
opposite party no.3 but could not defend
those orders particularly in the light of the
dictum of the Apex Court in re; Sushil
Kumar Singhal (supra) whereby the Apex
Court has interpreted the Government
Order dated 16.01.2007 (supra) as well as
in the light of the dictum of Rafiq Masih
(supra) and Jagdev Singh (supra).

9. Having heard learned counsel
for the parties and having perused the
material available on record, since the
impugned recovery is not only in violation
of Government Order dated 16.01.2007
(supra), which has been interpreted and
affirmed by the Apex Court in re; Sushil
Kumar Singhal (supra) and such recovery
has been executed in absence of any
specific
undertaking
of
the
present
petitioner at the time of making payment of
such amount, if any, and the undertaking at
the time of retirement is meaningless,
therefore, the petitioner would be entitled
for the benefit of the dictum of the Apex
Court in re; Rafiq Masih (supra) and in the
light of the dictum of the Apex Court in re;
Jagdev Singh (supra).

10. Accordingly, the writ petition
is allowed.

11. The impugned orders dated
20.02.2024 & 14.05.2024 passed by
opposite parties no.2 & 3 respectively are
hereby set aside/ quashed.

12. The opposite parties are
directed to refund/ repay the deducted/
recovered amount of Rs.5,38,781/- to the
petitioner forthwith, preferably within a
period of one month from the date of
receipt of certified copy of this order,
failing which the petitioner would be
entitled for the interest on the delayed
payment at the rate of 8% p.a.

13. The opposite parties are further
directed to fix the pension of the petitioner
on the basis of last basic pay Rs.64,100/-
drawn by the petitioner at the time of
retirement since the pension of the
petitioner may not be reduced by making
exercise of re-fixation of last pay drawn in
the light of the dictum of the Apex Court in
re; Sushil Kumar Singhal (supra).

14. No order as to costs.
----------
(2024) 7 ILRA 113
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.07.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ A No. 8688 of 2024

Jakir Husain ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mahendra Singh, Sr. Advocate

Counsel for the Respondents:
C.S.C., Pranav Mishra

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