# State of U.P. & Ors v. Ram Ji Singh

- **Citation:** (2023) 5 ILRA 363
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-11
- **Case number:** Special Appeal No. 183 of 2023
- **Bench:** Manoj Kumar Gupta, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-ram-ji-singh-50207
- **Pages:** 5

## Headnote

A. Service Law - Recovery from pension -
It has been held by the Supreme Court
that employer is entitled to recover the
amount in cases where the employee has
been given monetary benefits by mistake
which could have occurred on account of a
variety of reasons; including the grant of a
status, which the concerned employee
was not entitled to; or payment of salary
in a higher scale, than in consonance of
the right of the concerned employee; or
because of a wrongful fixation of salary of
the
employee,
consequent
upon
the
upward revision of pay-scales or for
having been granted allowances, for
which the concerned employee was not
authorised. Provided the excess payment
was not attributable to any fraud or
misrepresentation by the employee. (Para
5)

The categories which have been delineated by
the Supreme Court are as follows :-
364 INDIAN LAW REPORTS ALLAHABAD SERIES
(i) Recovery from employees belonging to ClassIII 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 recovery.

In the instant case, indisputably, the writ
petitioner was a Class-III employee and,
therefore, would fall under first category. The
recovery was sought to be made after his
retirement and consequently, he would also be
covered under the second category. The
amount sought to be recovered was allegedly
paid to the writ petitioner during the period
spread over 35 years while in service and,
therefore, he would also be covered by Clause
(iii). The small amount of house rent allowance
that was paid to the writ petitioner on a monthly
basis in last 35 years when recovered in lump
sum post-retirement was definitely an action
which was harsh and iniquitous and this would
be covered under Clause (v) as well. (Para 7)

The judgement of the Supreme Court
covers cases relating to wrong or excess
payment of allowances therefore it would
also cover the payment to the petitioner
by way of house rent allowance. If there
was any default in payment of rent, its recovery,
if permissible at this distance of time would be a
separate and distinct cause of action, but it
was wholly arbitrary and illegal to recover
the house rent allowance, paid over the
years,
without
any
fraud
or
misrepresentation
on
part
of
the
employee. (Para 8)

Special appeal dismissed. (E-4)

Precedent followed:

St. of Pun. & ors. Vs Rafiq Masih (White
Washer), 2015 (4) SCC 334 (Para 1)

Precedent distinguished:

High Court of Punjab & Haryana Vs Jagdev
Singh, 2015 (4) SCC 334 (Para 9)

Present appeal challenges order of learned
Single Judge dated 22.11.2022, by which
the
writ
petition
filed
by
the
sole
respondent was allowed and direction was
issued to refund Rs. 3,46,804/-to him.

## Text

5 All. State of U.P. & Ors. Vs. Ram Ji Singh
363
Council on a subject (qualification) which
came to be duly approved by Executive
Council and the Vice-Chancellor as per the
statutes. The Rules thus framed was
binding upon all the authorities of the
University and could not have been diluted
by an administrative order. The selection
and appointment of the appellant is perse
illegal and violative of Article 14 and 16 of
the Constitution of India.

25. The employee has absolute right to
determine and decide the qualifications for
any post, once such an exercise is
undertaken under the rules, the same would
bind the authorities and cannot be diluted
even by the Courts. In Punjab National
Bank Vs. Anit Kumar Das14, the Court
observed as under:

21. "it is for the employer to
determine and decide the relevancy and
suitability of the qualifications for any post
and it is not for the Courts to consider and
assess. A greater latitude is permitted by
the Courts for the employer to prescribe
qualifications for any post. There is a
rationale behind it. Qualifications are
prescribed keeping in view the need and
interest of an Institution or an Industry or
an establishment as the case may be. The
Courts are not fit instruments to assess
expediency or advisability or utility of
such prescription of qualifications......"

26. Learned Counsel for the appellant
is unable to point out any illegality,
infirmity or perversity in the impugned
order.

27. We are unable to persuade
ourselves to take an opinion different from
that taken by the learned Single Judge.

28. The appeal being devoid of merit,
is accordingly, dismissed.
----------
(2023) 5 ILRA 363
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.04.2023

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE PRASHANT KUMAR, J.

Special Appeal No. 183 of 2023

State of U.P. & Ors. ...Appellants
Versus
Ram Ji Singh ...Respondent

Counsel for the Appellants:
Sri Rama Nand Pandey

Counsel for the Respondent:
Sri Arvind Kumar Singh, Sri Akhilesh Singh,
Sri Rakesh Singh, Sri Ravish Kumar Singh

A. Service Law - Recovery from pension -
It has been held by the Supreme Court
that employer is entitled to recover the
amount in cases where the employee has
been given monetary benefits by mistake
which could have occurred on account of a
variety of reasons; including the grant of a
status, which the concerned employee
was not entitled to; or payment of salary
in a higher scale, than in consonance of
the right of the concerned employee; or
because of a wrongful fixation of salary of
the
employee,
consequent
upon
the
upward revision of pay-scales or for
having been granted allowances, for
which the concerned employee was not
authorised. Provided the excess payment
was not attributable to any fraud or
misrepresentation by the employee. (Para
5)

The categories which have been delineated by
the Supreme Court are as follows :-
364 INDIAN LAW REPORTS ALLAHABAD SERIES
(i) Recovery from employees belonging to ClassIII 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 recovery.

In the instant case, indisputably, the writ
petitioner was a Class-III employee and,
therefore, would fall under first category. The
recovery was sought to be made after his
retirement and consequently, he would also be
covered under the second category. The
amount sought to be recovered was allegedly
paid to the writ petitioner during the period
spread over 35 years while in service and,
therefore, he would also be covered by Clause
(iii). The small amount of house rent allowance
that was paid to the writ petitioner on a monthly
basis in last 35 years when recovered in lump
sum post-retirement was definitely an action
which was harsh and iniquitous and this would
be covered under Clause (v) as well. (Para 7)

The judgement of the Supreme Court
covers cases relating to wrong or excess
payment of allowances therefore it would
also cover the payment to the petitioner
by way of house rent allowance. If there
was any default in payment of rent, its recovery,
if permissible at this distance of time would be a
separate and distinct cause of action, but it
was wholly arbitrary and illegal to recover
the house rent allowance, paid over the
years,
without
any
fraud
or
misrepresentation
on
part
of
the
employee. (Para 8)

Special appeal dismissed. (E-4)

Precedent followed:

St. of Pun. & ors. Vs Rafiq Masih (White
Washer), 2015 (4) SCC 334 (Para 1)

Precedent distinguished:

High Court of Punjab & Haryana Vs Jagdev
Singh, 2015 (4) SCC 334 (Para 9)

Present appeal challenges order of learned
Single Judge dated 22.11.2022, by which
the
writ
petition
filed
by
the
sole
respondent was allowed and direction was
issued to refund Rs. 3,46,804/-to him.

(Delivered by Hon'ble Manoj Kumar
Gupta, J.
&
Hon'ble Prashant Kumar, J.)

1. The instant appeal is directed
against the order of learned Single Judge
dated 22.11.2022 by which the writ petition
filed by the sole respondent (hereinafter
referred to as the "writ petitioner") was
allowed and direction was issued to refund
Rs. 3,46,804/- to him. The amount
aforesaid is the sum deducted by the State
from his pensionary benefits towards house
rent allowance alleged to be wrongly paid
to him while in service. The writ court in
issuing the said direction, has placed
reliance on the judgement of the Supreme
Court in State of Punjab and others v.
Rafiq Masih (White Washer), 2015 (4)
SCC 334.

2. The facts in brief are that the writ
petitioner retired on 30.06.2016 from the
post of Teleprinter Operator at Collectorate,
Allahabad
upon
attaining
age
of
superannuation. During his service tenure,
he was allotted an official accommodation
in the year 1981. According to the case of
5 All. State of U.P. & Ors. Vs. Ram Ji Singh
365
the appellants, the writ petitioner did not
deposit house rent in terms of the allotment
letter and at the same time was also given
house rent allowance every month until his
retirement.
On
03.10.2016
i.e.
after
retirement, the A.D.M, City, Allahabad
passed an order holding that the petitioner
had received Rs. 2,88,644/- as house rent
allowance in an irregular manner and in
addition, according to the norms, Rs.
58,260/- would be rent due till 30th June,
2016, consequently, he was directed to
deposit Rs. 3,46,904/- in government
treasury within three days failing which,
the same would be recovered from his
pensionary benefits. As the writ petitioner
did not deposit the amount in government
treasury,
it
was
deducted
from
his
pensionary benefits. The representation
filed by the petitioner was rejected by the
District
Magistrate
by
order
dated
22.05.2020 impugned in the writ petition.

3. Shri Ramanand Pandey, learned
Additional
Chief
Standing
Counsel
appearing for the State submitted that under
Government Order dated 15.12.1981, the
writ petitioner was liable to pay rent of the
government
accommodation
he
was
occupying during his service tenure. He
further submits that in case, an employee
occupying a government accommodation
does not pay rent then he would not be
entitled to house rent allowance. It is
submitted that by mistake the State paid
house rent allowance to the writ petitioner
but as soon as the said mistake was
discovered,
the
Additional
District
Magistrate, City passed the order directing
the writ petitioner to refund the amount and
when it was not refunded, the amount was
rightly deducted from the pensionary
benefits. It is sought to be contended that
the judgement of the Supreme Court in
Rafiq Masih would not apply to the facts
of instant case as that was a case where
there was wrong fixation of salary while
the instant matter relates to house rent
allowance
and
is
governed
by
a
government order.

4. On the other hand, learned counsel
for the respondent (writ petitioner) submits
that the judgement of the Supreme Court
applies on all fours to the instant case. It is
urged that there is no finding in the
impugned
order
that
any
fraud
or
misrepresentation was played by the writ
petitioner at any stage. He submits that the
impugned recovery after retirement of the
writ petitioner had caused grave injury to
him and the writ court has rightly directed
the appellants to release the said amount.

5. The judgement of the Supreme
Court in Rafiq Masih (supra) is not
confined to cases where there is wrong
fixation of salary and as a result whereof
some excess amount was paid to an
employee. In fact, the Supreme Court had
decided a batch of petitions where the
larger issue was whether an employer is
entitled to recover monetary benefits
mistakenly given to the employee. The
mistake could have occurred on account of
a variety of reasons; including the grant of
a status, which the concerned employee
was not entitled to; or payment of salary in
a higher scale, than in consonance of the
right of the concerned employee; or
because of a wrongful fixation of salary of
the employee, consequent upon the upward
revision of pay-scales or for having been
granted
allowances,
for
which
the
concerned employee was not authorised. It
has been held that in all such cases, the
employer would not recover the amount
provided the excess payment was not
attributable
to
any
fraud
or
misrepresentation by the employee. The
366 INDIAN LAW REPORTS ALLAHABAD SERIES
categories which have been delineated by
the Supreme Court in paragraph 12 of the
judgement are as follows :-

"(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 recovery."

6.
The
Supreme
Court,
on
a
conspectus of different situations arising
before it, specified four different categories
where it would be harsh and iniquitous to
permit recovery of excess payment of the
monetary benefits. While specifying these
categories,
the
Supreme
Court
was
conscious of the fact that it was not
possible to account for all eventualities.
Accordingly, a fifth category was carved
out where it was left to the wisdom of the
Court not to permit recovery if it comes to
the conclusion that it would be harsh,
arbitrary or iniquitous.

7. In the instant case, indisputably, the
writ petitioner was a Class-III employee
and, therefore, would fall under first
category. The recovery was sought to be
made after his retirement and consequently,
he would also be covered under the second
category. The amount sought to be
recovered was allegedly paid to the writ
petitioner during the period spread over 35
years while in service and, therefore, he
would also be covered by Clause (iii). The
small amount of house rent allowance that
was paid to the writ petitioner on a monthly
basis in last 35 years when recovered in
lump sum post-retirement was definitely an
action which was harsh and iniquitous and
this would be covered under Clause (v) as
well.

8. We find no merit in the submission
that since the payment to the petitioner was
by way of house rent allowance and,
therefore it would not be covered by the
judgement of Supreme Court inasmuch the
judgement of the Supreme Court also
covers cases relating to wrong or excess
payment of allowances. If there was any
default in payment of rent, its recovery, if
permissible at this distance of time would
be a separate and distinct cause of action,
but it was wholly arbitrary and illegal to
recover the house rent allowance, paid over
the
years,
without
any
fraud
or
misrepresentation on part of the employee.

9. Learned Standing Counsel tried to
place reliance on the judgement of
Supreme Court in High Court of Punjab
and Haryana v. Jagdev Singh reported in
2015 (4) SCC 334. It was a case where the
employee was in judicial service and at the
time of fixation of revised pay-scale and
grant of selection grade, he furnished an
undertaking to refund excess payment, in
terms of the applicable service rules, if any
mistake is detected subsequently. The
Supreme Court in view of the specific
5 All. State of U.P. & Ors. Vs. Mohd. Janbaz Alam
367
condition in the notification that the
employee would be liable to refund excess
payment
if
discovered
subsequently
followed by the undertaking furnished by
the employee in terms of the said
stipulation,
held
that
the
principles
enunciated in proposition no. (ii) in the
case of Rafiq Masih would not apply. The
observations made in this regard is
extracted below :-

"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."

10. In the instant case, there was no
undertaking furnished by the petitioner for
refunding the house rent allowance which
was deducted from his post retiral benefits.
Therefore, we are of the considered opinion
that the judgement relied upon by learned
counsel for the appellants would be of no
help to him. The learned Single Judge was
right in applying the principles laid down in
Rafiq Masih in directing refund of the
amount.

11. In the result, the appeal lacks merit
and is accordingly, dismissed.
----------
(2023) 5 ILRA 367
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.04.2023

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE PRASHANT KUMAR, J.

Special Appeal Defective No. 196 of 2023

State of U.P. & Ors. ...Appellants
Versus
Mohd. Janbaz Alam ...Respondent

Counsel for the Appellants:
C.S.C.

Counsel for the Respondent:
Sri Updendra Upadhyay

A. Service Law - Recovery from pension -
Civil Service Regulations - Regulation 351A - The Governor has been given right to
recover
pecuniary
loss
from
the
pensionary benefits, if the pensioner is
found
in
departmental
or
judicial
proceedings to have been guilty of grave
misconduct or to have caused pecuniary
loss to the Government by misconduct or
negligence during his service. Moreover,
the departmental proceedings, if initiated
after retirement, would only be with
sanction of the Governor and shall be in
respect of any event which took place not
more
than
four
years
before
the
institution of such proceedings. (Para 11)

In the instant case, admittedly, no departmental
or judicial proceedings were initiated against the
writ petitioner before directing recovery of the
amount from the pensionary benefits. There
was also no sanction
of the Governor.
Concededly, the alleged excess payment was
made in the year 2011-12 and definitely, it
related to an event which took place much more
than four years before order was passed for
recovery of the amount (Moreover, the State did
not raise any objection in relation to this excess
payment while the writ petitioner was in
service). Therefore, the said amount was not
recoverable at this distance of time in view of
the safeguards provided u/Regulation 351-A.
(Para 9, 12)

B. The letter of the petitioner dated
11.07.2016, cannot by any stretch of
imagination, be construed as a concession