# Surendra Narayan Singh v. State Of U.P. & Ors

- **Citation:** (2025) 10 ILRA 330
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-10-06
- **Case number:** Writ A No. 5134 of 2022
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-narayan-singh-v-state-of-u-p-ors-52653
- **Pages:** 10

## Headnote

C.S.C., I.M. Pandey Ist

Issues for consideration
 (a) Whether the issue of delay and latches
would be applicable in praying for a relief
against recovery of arrears of past period?
(b) Whether recovery of excess payment of
salary can be made from post retiral dues?

Headnotes
A. Service Law - The consequential relief
of recovery of arrears for a past period,
the
principles
relating
to
recurring/successive wrongs will apply
and there is continuous cause of action. In
matter of fixation of salary, there is
continuation of cause of action. The issue
of delay and laches will not be applicable.
(Para 19, 23)

B. Since there is no specific denial that the
case of the petitioner is not at par with
the employees in whose favour, the orders
have been passed, it cannot be a ground
for rejection of the claim of the petitioner.

Corporation submitted that the normal rule is
that when a particular set of employees is given
the relief by the court, all other identically
situated persons/employees need to be treated
alike by extending the same benefits. However,
this principle is subject to well recognized
institution in the form of laches and delays as
well as acquiescence. As the petitioner did not
raise his grievance earlier and after a long
delay, he cannot claim the benefit of the
judgement rendered to the similarly situated
employees. (Para 18)

The petitioner was initially allowed the pay-scale
admissible to the junior engineer of the
answering corporation but the pay-scale was
later on given in the anticipation of Government
sanction pending in the matter and in the order,
10 All. Surendra Narayan Singh Vs. State Of U.P. & Ors.
331
it
was
mentioned
that
due
to
any
defect/mistake, the excess payment made will
be subject to recovery. (Para 23)
It is clear that the case of petitioner is at par
with the cases of other similarly situated
employees, therefore, the order cannot sustain.
(Para 25)

C. Recovery from the retired employees,
or from employees who are about to retire
within
one year from the order of
recovery, would be impermissible.

In the present case, though the impugned order
dated 02.02.2016 was issued by the corporation
but it was stayed by the corporation itself vide
order dated 20.02.2016 and, thereafter, the
final impugned order dated 05.02.2018 was
passed after retirement i.e. on 30.11.2016.
(Para 21)
Impugned
order
dated
05.02.2018
and
impugned order dated 02.02.2016 are hereby
set side. The respondents are directed to
release the amount recovered and withheld
from the post retiral dues of the petitioner along
with the simple interest of 6% per annum in two
months from the date of production of certified
copy of this order. (Para 26, 27)

Writ petition allowed. (E-4)

Case Law Cited:

## Text

330 INDIAN LAW REPORTS ALLAHABAD SERIES
posts far exceed the sanctioned posts in this
case, the State Government must spare a
thought, bearing in mind the perennial
nature of work, to sanction commensurate
and adequate number of posts to bring
about regularity in the cadres of its staff.

31. In the result, this writ petition
succeeds and stands allowed. A mandamus
is
issued
to
the
State
Government
(respondent nos. 1 and 2) to sanction the
requisite number of supernumerary posts
for the purpose of regularising the
petitioners' services, which they must do
within eight weeks from the date of receipt
of a copy of this judgment. Immediately
upon sanction of the posts, which the State
Government
shall
intimate
to
the
Development Authority, both to the Vice
Chairman and the Secretary within a week
of that decision being taken, the Secretary
and the Vice Chairman of the Development
Authority shall proceed to consider the
petitioners' case for regularisation, bearing
in mind the remarks in this judgment and
the petitioners' case within a period of four
weeks from the date of receipt of the State
Government's
decision
to
sanction
supernumerary posts.

32. There shall be no order as to costs.

33. The Registrar (Compliance) is
directed to communicate this order to the
Principal Secretary, Department of Urban
Development, Uttar Pradesh, Lucknow and
the Vice Chairman, Meerut Development
Authority, Meerut.
----------
(2025) 10 ILRA 330
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.10.2025

BEFORE
THE HON'BLE BRIJ RAJ SINGH, J.

Writ A No. 5134 of 2022
Surendra Narayan Singh ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Vikas Vikram Singh, Nawal Kishore

Counsel for the Respondents:
C.S.C., I.M. Pandey Ist

Issues for consideration
 (a) Whether the issue of delay and latches
would be applicable in praying for a relief
against recovery of arrears of past period?
(b) Whether recovery of excess payment of
salary can be made from post retiral dues?

Headnotes
A. Service Law - The consequential relief
of recovery of arrears for a past period,
the
principles
relating
to
recurring/successive wrongs will apply
and there is continuous cause of action. In
matter of fixation of salary, there is
continuation of cause of action. The issue
of delay and laches will not be applicable.
(Para 19, 23)

B. Since there is no specific denial that the
case of the petitioner is not at par with
the employees in whose favour, the orders
have been passed, it cannot be a ground
for rejection of the claim of the petitioner.

Corporation submitted that the normal rule is
that when a particular set of employees is given
the relief by the court, all other identically
situated persons/employees need to be treated
alike by extending the same benefits. However,
this principle is subject to well recognized
institution in the form of laches and delays as
well as acquiescence. As the petitioner did not
raise his grievance earlier and after a long
delay, he cannot claim the benefit of the
judgement rendered to the similarly situated
employees. (Para 18)

The petitioner was initially allowed the pay-scale
admissible to the junior engineer of the
answering corporation but the pay-scale was
later on given in the anticipation of Government
sanction pending in the matter and in the order,
10 All. Surendra Narayan Singh Vs. State Of U.P. & Ors.
331
it
was
mentioned
that
due
to
any
defect/mistake, the excess payment made will
be subject to recovery. (Para 23)
It is clear that the case of petitioner is at par
with the cases of other similarly situated
employees, therefore, the order cannot sustain.
(Para 25)

C. Recovery from the retired employees,
or from employees who are about to retire
within
one year from the order of
recovery, would be impermissible.

In the present case, though the impugned order
dated 02.02.2016 was issued by the corporation
but it was stayed by the corporation itself vide
order dated 20.02.2016 and, thereafter, the
final impugned order dated 05.02.2018 was
passed after retirement i.e. on 30.11.2016.
(Para 21)
Impugned
order
dated
05.02.2018
and
impugned order dated 02.02.2016 are hereby
set side. The respondents are directed to
release the amount recovered and withheld
from the post retiral dues of the petitioner along
with the simple interest of 6% per annum in two
months from the date of production of certified
copy of this order. (Para 26, 27)

Writ petition allowed. (E-4)

Case Law Cited:
1. Sabbir Hassan Vs. State of UP and Ors., Civil
Appeal No.6357-58 of 2019, decided on
16.08.2019 (Para 7)
2. M.R. Gupta Vs. Union of India and Ors., 1995
AIR SCW 4675 (Para 9)
3. Union of India Vs. Tarsem Singh, (2008) 4
Raj LW 3167 (Para 11)
4. Uttar Pradesh and Others versus Arvind
Kumar Srivastava and Others, (2015) 1 SCC 347
(Para 17)
5. State of Punjab and Others Vs. Rafiq Masih
(White Washer) and Ors., (2015) 4 SCC 334
(Para 20)

List of Keywords
 excess payment, salary, post retiral dues,
recovery, delay, service,

Appearances for Parties
For Petitioner: Vikas Vikram Singh, Nawal
Kishore
For Respondent: C.S.C., I.M. Pandey Ist

(Delivered by Hon'ble Brij Raj Singh, J.)

1. Heard Shri Vikas Vikram Singh,
learned counsel for the petitioner, and
learned Standing Counsel for the Staterespondent no.1 and Shri I.M. Pandey,
learned counsel for the respondent nos.2 to
5.

2. The present petitioner has been filed
with the following prayer:-

"i) Issue a writ, order or direction
in the nature of certiorari quashing the
impugned order dated 05-02-2018 passed
by opposite party no.2 by means of which
his pay fixation has been calculated after
deducting the excess salary, so that
recovery of excess payment of salary made
to the petitioner be made directing from
post retiral dues as contained in Annexure
No.1 to writ petition.

(ii) Issue a writ, order or
direction in the nature of certiorari
quashing
the
impugned
order
dated
02.02.2016 passed by opposite party no.2
directing for recovery of excess payment of
salary made to the petitioner from his post
retirement dues as contained in Annexure
No.2 to writ petition, passed by the
opposite party No. 2.

(iii) Issue a writ, order or
direction in the nature of mandamus
commanding the opposite parties to release
the amount recovered and withheld i.e Rs.
1,17,077/- (One Lakh Seventeen Thousand
and Seventy Seven Only) from the post
retirement dues of the petitioner alongwith
interest @ 18% per annum.

(iv) Issue any other writ, order or
direction in the nature, which this Hon'ble
332 INDIAN LAW REPORTS ALLAHABAD SERIES
Court may deem fit and proper in the
circumstances of the case and allow the
writ petition with costs."

3. Contention of the learned counsel
for the petitioner is that the identically
placed
employees
from
whom
the
corporation made recovery, had approached
this Court by filing writ petitions and this
Court has been pleased to allow the writ
petitions directing the respondents to pay
the amount which had been deducted from
their post refiral dues. The Writ Petition
No.18476 of 2017 (Sabbir Hasan Vs State
of UP) was dismissed by this Court on
17.08.2017, against which, an SLP before
the Hon'ble Apex Court was filed and the
same was allowed on 16.08.2019 by setting
aside the order dated 17.08.2017.

4. It has been submitted that the office
order dated 06.09.2012 was issued by
respondent no.2, considering the G.O.
dated 09.03.2010, by which, the approval
was granted for implementation of ACP to
the employees falling within the prescribed
criteria. The petitioner was also given
benefit of the order dated 06.09.2012. He
further submitted that the respondent no.2
vide office order dated 19.09.2015 pursuant
to the order dated 08.09.2015 passed by the
State Government, had cancelled his earlier
order dated 06.09.2012 by means of which,
benefit of ACP was granted to the
petitioner and other similarly situated
employees. The perusal of the order dated
19.09.2015 would indicate that the fresh
proposal
was
issued
by
the
State
Government as provided in G.O. dated
17.08.2010 and, thereafter, it is mentioned
that neither in the office order dated
08.09.2015
nor
in
the
order
dated
19.09.2015, there has been any discussion
about the recovery of amount/salary paid to
implement
the
office
order
dated
06.09.2012.

5. It has further been submitted that
the
The
petitioner superannuated
on
30.11.2016 from the post of Assistant
Project
Manager
from
U.P.
Project
Corporations Ltd. and the impugned order
dated 02.02.2010 was issued which was
stayed by the corporation vide order dated
20.02.2016 and after retirement, the order
dated 05.02.2018 was issued by the
corporation.

6. In support of his submission,
learned counsel for the petitioner has relied
upon the order dated 26.07.2016 passed in
Writ Petition No.3670 of 2016 S/S (Ram
Murti Singh Vs. State of UP and Ors.) and
order dated 26.07.2016 passed in Writ
Petition No.3206 of 2016 S/S (Badri
Narayan Chaubey Vs. State of UP).

7. He has further relied upon the
judgement of the Hon'ble Apex Court
passed in Civil Appeal No.6357?58 of
2019; (Sabbir Hassan Vs. State of UP and
Ors.) on 16.08.2019. He has further
submitted that the judgement of Hon'ble
Apex court passed in case of Subbir Hassan
(supra) is very much applicable in the case
of the petitioner for a reason that the writ
petition filed by Subbir Hassan was
dismissed on 17.08.2017 against which,
SLP was filed and the Hon'ble Apex Court
allowed the said SLP vide order dated
16.08.2019
with
the
following
observations:

"7. This Court, in "State of
Punjab and others Vs. Rafig Masih and
Others", reported in (2015) 4. SCC 334,
has laid down the following principles of
recovery :-
10 All. Surendra Narayan Singh Vs. State Of U.P. & Ors.
333

"It is not possible to postulate all
situation 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 employers
belonging to Class-III and Class -IV
service (or Group 'C' and Group 'D'
service)

(ii) Recovery from employees, or
the 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."

8. In the light of the above
decision and the principles laid down by
this court, in our opinion, the recovery
could not have been made from the
appellant. Thus, the impugned order, is set
aside and the appeals are allowed holding
that the recovery shall not be made from
the appellant.

Pending
interlocutory
application(s), if any, is/are disposed of."

8. Learned counsel for the petitioner
has further submitted that in fixation of
pay-scale, delay and laches would not come
into the way of the petitioner as there is
continuation of the cause of action.

9. Learned counsel for the petitioner
has next relied upon the judgement of the
Hon'ble Apex Court passed in the case of
M.R. Gupta Vs. Union of India and Ors.
reported in 1995 AIR SCW 4675.

10. Relevant portion of the aforesaid
judgment is reproduced as under:

"5. Having heard both sides, we
are satisfied that the Tribunal has missed
the real point and overlooked the crux of
the matter. The appellant's grievance that
his pay fixation was not in accordance with
the rules, was the assertion of a continuing
wrong against him which gave rise to a
recurring cause of action each time he was
paid a salary which was not computed in
accordance with the rules. So long as the
appellant is in service, a fresh cause of
action arises every month when he is paid
his monthly salary on the basis of a wrong
computation made contrary to rules. It is
no doubt true that if the appellant's claim is
found correct on merits, he would be
entitled to be paid according to the
properly fixed pay scale in the future and
the question of limitation would arise for
recovery of the arrears for the past period.
In other words, the appellant's claim, if
any, for recovery of arrears calculated on
the basis of difference in the pay which has
334 INDIAN LAW REPORTS ALLAHABAD SERIES
become
time
barred
would
not
be
recoverable, but he would be entitled to
proper fixation of his pay in accordance
with rules and to cessation of a continuing
wrong if on merits his claim is justified,
Similarly, any other consequential relief
claimed by him, such as, promotion etc.
would also be subject to the defence of
laches etc. to disentitle him to those reliefs.
The pay fixation can be made only on the
basis of the situation existing on 1-8-1978
without taking into account any other
consequential relief which may be barred
by his laches and the bar of limitation. It is
to this limited extent of proper pay fixation
the application cannot be treated as time
barred since it is based on a recurring
cause of action.

6. The Tribunal misdirected itself
when it treated the appellant's claim as
'one time action' meaning thereby that it
was not a continuing wrong based on a
recurring cause of action. The claim to be
paid the correct salary computed on the
basis of proper pay fixation, is a right
which subsists during the entire tenure of
service and can be exercised at the time of
each payment of the salary when the
employee is entitled to salary computed
correctly in accordance with the rules. This
right of a Goverment servant to be paid the
correct salary throughout his tenure
according
to
computation
made
in
accordance with rules, is akin to the right
of redemption which is an incident of a
subsisting mortgage and subsists so long as
the mortgage itself subsists, unless the
equity of redemption is extinguished. It is
settled that the right of redemption is of this
kind. (See Thota China Subba Rao v.
Mattapalli Raju, AIR 1950 Federal Court
1)."

11. He has also relied upon another
judgment of the Hon'ble Apex Court passed
in Union of India Vs. Tarsem Singh
reported in (2008) 4 Raj LW 3167.

12. Relevant portion of the aforesaid
judgmetn is reproduced as under:

"5. To summarise, normally, a
belated service related claim will be
rejected on the ground of delay and laches
(where remedy is sought by filing a writ
petition) or limitation (where remedy is
sought
by
an
application
to
the
Administrative Tribunal). One of the
exceptions to the said rule is cases relating
to a continuing wrong. Where a service
related claim is based on a continuing
wrong, relief can be granted even if there is
a long delay in seeking remedy, with
reference to the date on which the
continuing wrong commenced, if such
continuing wrong creates a continuing
source of injury. But there is an exception
to the exception. If the grievance is in
respect of any order or administrative
decision which related to or affected
several others also, and if the re-opening of
the issue would affect the settled rights of
third parties, then the claim will not be
entertained. For example, if the issue
relates to payment or re-fixation of pay or
pension, relief may be granted in spite of
delay as it does not affect the rights of third
parties. But if the claim involved issues
relating to seniority or promotion etc.,
affecting others, delay would render the
claim
stale
and
doctrine
of
laches/limitation will be applied. In so far
as the consequential relief of recovery of
arrears for a past period, the principles
relating to recurring/successive wrongs
will apply. As a consequence, High Courts
will
restrict
the
consequential
relief
relating to arrears normally to a period of
three years prior to the date of filing of the
writ petition.
10 All. Surendra Narayan Singh Vs. State Of U.P. & Ors.
335

6. In this case, the delay of 16
years would affect the consequential claim
for arrears. The High Court was not
justified in directing payment of arrears
relating to 16 years, and that too with
interest. It ought to have restricted the
relief relating to arrears to only three years
before the date of writ petition, or from the
date of demand to date of writ petition,
whichever was lesser. It ought not to have
granted interest on arrears in such
circumstances."

13. Learned counsel for the petitioner
has submitted that the stand of the
petitioner regarding the benefits given to
the similarly situated employees mentioned
in para 5-6 has not been denied specifically
to the effect that the case of the petitioner is
not at par with the case of those similarly
situated employees who have been granted
benefit. He has submitted that in para 25 to
the counter affidavit of the answering
respondents, though the averment of para 5
and 6 has been denied but the stand has
been taken by the answering respondent
that the petitioner was initially allowed the
pay-scale admissible to the junior engineers
of the answering corporation but the higher
pay-scale was later on given in the
anticipation of the Government sanction
pending in the matter and it was
specifically mentioned that in case of there
being any defect/mistake, the excess
payment made in pursuance of this order
shall be recovered.

14. It has been submitted by learned
counsel for the petitioner that the entire
statement of fact in para 25 of the counter
affidavit
indicates
that
doctrine
of
acquiescence has been pleaded but it is
nowhere mentioned that the case of the
petitioner is not at par with the cases of the
similarly situated employees.

15. On the other hand, learned counsel
for respondent no.2 to 5 has submitted that
the claim of the petitioner is barred by
limitation as he has challenged the
impugned order after four years from the
date of its pronouncement. He has further
submitted that the order dated 19.09.2015
was passed against the petitioner prior to
his
retirement
i.e.
on
02.02.2016.
Therefore, the Department committed no
error in passing the impugned order prior to
his retirement. He has further submitted
that the case as cited by the learned counsel
for the petitioner would not be applicable
for the reason that the Department had
passed the order on 02.02.2016, by which,
petitioner was asked to deposit the amount
prior to his retirement.

16. It has further been submitted on
behalf
of
the
corporation
that
the
Government's
decision
contained
in
Government letter dated 08.09.2015 was
taken during the service period of petitioner
but he did not raise any objection against
the
same
or
against
the
answering
corporation.
In
consequential
order
contained in the office memo bearing
no.2385 dated 19.09.2015,
the
State
Government, considering the new proposal
of the corporation, accorded sanction vide
Government
Order
bearing
no.176/2016/1714/
16?27-si-9?01pc1/12
dated 20.10.2016 to allow the benefits of
the higher pay-scale of ?93,00-34800 grade
pay 4200/- to the junior engineers of the
answering corporation from the current
date of the issuance of the order. The
petitioner has not challenged the office
memo
dated
02.02.2016
and
made
representation for determination of his pay,
theirupon the respondent no.2, considering
the petitioner's request, issued office memo
dated 20.02.2016, by which, the office
order dated 02.02.2016 was kept in
336 INDIAN LAW REPORTS ALLAHABAD SERIES
abeyance. The petitioner's pay fixation was
considered and vide impugned order dated
05.02.2018, the fixation was reconsidered
and the order dated 05.02.02018 was
passed.

17.
Learned
counsel
for
the
corporation has cited the judgement of the
Hon'ble Apex Court in the case of Uttar
Pradesh and Others versus Arvind Kumar
Srivastava and Others reported in (2015) 1
SCC 347. He has placed reliance on
paragraph no.33 of the said judgement
which is reproduced as under:

"[33] The legal principles which
emerge from the reading of the aforesaid
judgments, cited both by the appellants as
well as the respondents, can be summed up
as under: (1) Normal rule is that when a
particular set of employees is given relief
by the Court, all other identically situated
persons need to be treated alike by
extending that benefit. Not doing so would
amount to discrimination and would be
violative of Article 14 of the Constitution of
India. This Principle needs to be applied in
service matters more emphatically as the
service jurisprudence evolved by this Court
from time to time postulates that all
similarly situated persons should be treated
similarly. Therefore, the normal rule would
be that merely because other similarly
situated persons did not approach the
Court earlier, they are not to be treated
differently.

(2) However, this principle is
subject to well recognized exceptions in the
form of laches and delays as well as
acquiescence. Those persons who did not
challenge the wrongful action in their cases
and acquiesced into the same and woke up
after long delay only because of the reason
that
their
counterparts
who
had
approached the Court earlier in time
succeeded in their efforts, then such
employees cannot claim that the benefit of
the judgment rendered in the case of
similarly situated persons be extended to
them. They would be treated as fencesitters and laches and delays, and/or the
acquiescence, would be a valid ground to
dismiss their claim.

(3) However, this exception may
not apply in those cases where the
judgment pronounced by the Court was
judgment in rem with intention to give
benefit to all similarly situated persons,
whether they approached the Court or not.
With such a pronouncement the obligation
is cast upon the authorities to itself extend
the benefit thereof to all similarly situated
person. Such a situation can occur when
the subject matter of the decision touches
upon the policy matters, like scheme of
regularisation and the like (see K.C.
Sharma & Ors. v. Union of India. On the
other hand, if the judgment of the Court
was in personam holding that benefit of the
said judgment shall accrue to the parties
before the Court and such an intention is
stated expressly in the judgment or it can
be impliedly found out from the tenor and
language of the judgment, those who want
to get the benefit of the said judgment
extended to them shall have to satisfy that
their petition does not suffer from either
laches and delays or acquiescence."

18. It has been submitted on behalf of
the corporation that normal rule is that
when a particular set of employees is given
the relief by the court, all other identically
situated persons/employees need to be
treated alike by extending the same
benefits. However, this principle is subject
to well recognized institution in the form of
laches and delays as well as acquiescence.
10 All. Surendra Narayan Singh Vs. State Of U.P. & Ors.
337
He has submitted that the petitioner did not
raise his grievance earlier and after a long
delay, he cannot claim the benefit of the
judgement
rendered
to
the
similarly
situated employees.

19. In response to the aforesaid
submission, regarding delay and laches, it
has further been submitted by Shri Vika
Vikram Singh, learned counsel for the
petitioner that the question of limitation
will not arise in the present case for the
reason that it is the case of recovery of
payment made to the petitioner which was
fixed by the Department in pursuance of
the Government policy. In view of the law
laid down by the Hon'ble Apex Court in
cases of M.R. Gupta Vs. Union of India
and Ors. (supra) and Union of India Vs.
Tarsem Singh (supra). The Hon'ble Apex
Court has categorically held that the
consequential relief of recovery of arrears
for a past period, the principles relating to
recurring/successive wrongs will apply and
there is continuous cause of action.

20. The Hon'ble Apex Court in the
case of State of Punjab and Others Vs.
Rafiq Masih (White Washer) and Ors.
reported in (2015) 4 SCC 334 has
enunciated the principle of recovery against
the employees. Relevant paragraph of the
aforesaid judgement is reproduced as
under:

"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 hereinabove, 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

(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 b 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."

21. A bare perusal of the para-18 of
the aforesaid judgement reveals that the
recovery from the retired employees, who
are about to retire within one year from the
order of recovery, would be impermissible.
The case of the petitioner is covered by
exception- 23, para 8 of the aforesaid
judgment. In the present case, though the
impugned
order
dated
02.02.2016
(annexure no.2) was issued by the
corporation but the said order was stayed
by the corporation itself vide order dated
20.02.2016
and,
thereafter,
the
final
impugned order dated 05.02.2018 was
passed after retirement i.e. on 30.11.2016.
However, the case of the petitioner comes
338 INDIAN LAW REPORTS ALLAHABAD SERIES
within the exception of sub-para no.II and
III of the judgement of Rafiq Masih
(supra).

22. The record reveals that the order
dated 02.02.2016 was stayed by the
Managing
Director
vide
letter
dated
20.02.2016 and, therefore, the impugned
order dated 05.02.2018 was passed, which
is admittedly after retirement. Since the
Department had stayed the impugned order
dated 20.02.2016 and, thereafter, passed the
order vide letter dated 05.02.2018, the court
has to see, as to whether, the case of the
petitioner is at par with the case of the
similarly situated employees.

23. Heard learned counsel for the
petitioner as well as earned counsel for the
State corporation. It is to be note that in
para 25 of the counter affidavit, there is no
specific denial to the fact that the case of
the petitioner is not at par with the cases of
similarly situated employees i.e. Ram
Murty Singh, Badri Narayan Chaubey, and
Sabbir Husan as contained in Annexure
No.3 and 4 to the present petition. It has
been stated in para 25 that the petitioner
was
initially
allowed
the
pay-scale
admissible to the junior engineer of the
answering corporation but the pay-scale
was later on given in the anticipation of
Government sanction pending in the matter
and in the order, it was mentioned that due
to any defect/mistake, the excess payment
made will be subject to recovery. The law
laid down in case of Union of India Vs.
Tarsem Singh (supra) is very clear that in
matter of fixation of salary, there is
continuation of cause of action. The issue
of delay and laches will not be applicable.
Since there is no specific denial that the
case of the petitioner is not at par with the
employees in whose favour, the orders have
been passed vide annexure No.3 and 4 of
the writ petition, it cannot be a ground for
rejection of the claim of the petitioner.

24. I have gone through carefully the
judgement of the Hon'ble Apex Court
passed in the case of Arvind Kumar
Srivastava (supra) cited by the learned
counsel for the State- respondent. The fact
is mentioned that in the year 1986, the
Chief Medical Officer, Varanasi had
advertised the post of head-boys in various
newspapers, the respondents in the case had
applied for the said post and participated in
the selection process. After interview, they
were kept in waiting list. Those who were
in the select list were offered appointments,
some of the candidates who were higher in
merit and were offered appointment did not
join. Therefore, the candidates in the
waiting list were issued appointment letters
by the then Chief Medical Officer,
Varanasi. However, before the respondents
joined their duties, the new Chief Medical
Officer, Varanasi resumed charge and
blocked their joining. Thereafter, vide order
dated
20.02.1987,
he
cancelled
the
appointments made by his predecessor.
Few candidates who were also aggrieved
by the order dated 22.06.1987, approached
the Tribunal, challenging the legality,
validity and proprietary of the said order on
several grounds. The Tribunal decided the
case in their favour and the order dated
22.06.1987 was quashed. The writ petition
filed before the High Court was also
dismissed and, thereafter, SLP was also
dismissed on 12.08.1987. The respondents
in the aforesaid case, waited for such a long
span and when the special leave petition
was dismissed in the year 1994, then they
filed a petition in 1995 requesting the
benefit of identical order. Thus, the fact of
the case is not applicable in the present
case and so far fixation of pay-scale is
concerned, it is continuing cause of action
10 All. Ganesh Tripathi & Anr. Vs. State Of U.P. & Ors.
339
and delay and laches would not come into
the play as settled by the Hon'ble Apex
Court in the case of M.R. Gupta (supra)
and Tarsem Singh (Supra).

25. Considering the aforesaid facts and
circumstances and keeping in view the law
laid down by the Hon'ble Apex Court, the
argument of the laches will not be
applicable in the present case. Thus, it is
clear that the case of petitioner is at par
with the cases of other similarly situated
employees, therefore, the order cannot
sustain.

26. In view of the above, the present
petition stands allowed and the impugned
order dated 05-02-2018 and impugned
order dated 02.02.2016 are hereby set side.

27. The respondents are directed to
release the amount recovered and withheld
from the post retiral dues of the petitioner
along with the simple interest of 6% per
annum in two months from the date of
production of certified copy of this order.
----------
(2025) 10 ILRA 339
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.10.2025

BEFORE

THE HON'BLE PRAKASH PADIA, J.
THE HON'BLE VIVEK SARAN, J.

Writ A No. 7655 of 2019

Ganesh Tripathi & Anr. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
P.K. Upadhyay, Pradeep Kumar Pandey,
Rakesh Kumar, Tarun Agrawal, Varun
Kumar Chaubey
Counsel for the Respondents:
Avneesh Tripathi, C.S.C., Neeraj Tripathi
(Sr. Adv.), Ved Byas Mishra

Issue for consideration
 Whether a prospective candidate can assail the
order cancelling the selection process?

Headnotes
A. Service Law - U.P. State Universities
Act, 1973: Section 50(6) - The order
cancelling the selection process cannot be
arbitrary. It must be supported by cogent
reasons.
In
other
words,
while
the
employer
has
an
absolute
right
to
withdraw
the
advertisement,
yet
a
prospective
candidate
can
assail
the
decision on the ground of arbitrariness or
lack of bona fides. This is the limited right
available to a prospective candidate while
assailing withdrawal from selection process. The
very fact that the Hon'ble Supreme Court has
recognized a right in the prospective candidate
to assail the withdrawal order itself renders the
present writ petition maintainable. (Para 10)

B. The amendments introduced in UGC
Regulations of 2010 did not bring any
change in the existing qualifications to the
post of Assistant Professor (Linguistic
Science)
that
was
published
in
advertisement no. 2 of 2016. In this view
of the matter, it is clear that the reason
behind cancellation of the advertisement
regarding recruitment of more qualified
candidate in terms of the amended
regulations would not ipso facto apply to
the post of Assistant Professor (Linguistic
Science). (Para 13)

C. The decision taken by the Chancellor of
the University on 27.10.2017 is clearly in
the breach of GO dated 08.04.2017. The
impugned order passed by the Chancellor on
27.10.2017 ignores binding effect of the GO
dated 08.04.2017. Perusal of the GO dated
08.04.2017 clearly shows that the State
Government was cognizant of the fact that the
said GO could interfere with ongoing selection
processes and all pending advertisements were
protected under the aforesaid GO. While taken
the decision by the State Government to apply