# Umesh Chandra v. State Of U.P. & Ors

- **Citation:** (2025) 8 ILRA 747
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-12
- **Case number:** Writ A No. 66368 of 2005
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umesh-chandra-v-state-of-u-p-ors-53755
- **Pages:** 4

## Headnote

opportunity of hearing, is sustainable in law.

HEADNOTE
Service Law - Pay Fixation - Recovery - Natural
Justice - No Recovery from Retired Employee -
Rafiq Masih principle - Retrospective correction
of pay fixation without notice - Unsustainable -
Orders quashed.
Held :
Petitioner,
who
retired
on
30.06.2005,
challenged
the
order
dated
13.07.2005
providing for refixation of pay w.e.f. 1.7.1985
and consequential orders of recovery. Court
held that petitioner was not put to notice and
not afforded opportunity to offer his explanation
prior to passing of the order. On the principles
of natural justice, the impugned order was set
aside and consequential orders of recovery also
quashed. Court held that no such recovery can
be enforced against retired class III and IV
employees after their retirement for any
correction of pay fixation. Petitioner having
retired on 30.06.2005, such recovery could not
have been proceeded with. Respondents were
directed to refix the pension and postretirement dues and the recovered amount shall
also be refunded to the petitioner within two
months' time. (Paras 8-16) (E-5)

CASE LAW CITED
State of Punjab and Others v. Rafiq Masih
(White Washer), (2015) 4 SCC 334; Sushil
Kumar Singhal v. Pramukh Sachiv, Irrigation
Department, (2014) 16 SCC 444

List of Acts
Constitution of India

List of Keywords
Recovery; Pay Fixation; Notice; Natural Justice;
Retired Employee; No Recovery; Pension; Last
Pay Drawn; Reasonable Period; Rafiq Masih;
Refund.

CASE ARISING FROM
Order
dated
13.07.2005
(refixation);
consequential recovery orders dated 27.09.2005
and 13.09.2005.

Appearances for Parties
Advs For Petitioner: P.K. Dwivedi; Virendra
Singh
Advs For Respondents: C.S.C.; J.K. Khanna

## Text

8 All. Umesh Chandra Vs. State of U.P. & Ors.
747
Education Officer, does not find it fit to
inquire into the validity of the selection
process and appointment, the petitioner
concerned
shall
be
entitled
to
reinstatement in service on the same
terms. It is also made clear that upon
quashing of the order alone, there would
not be any automatic reinstatement for
any of the petitioners. It is clarified that
the Appointing Authority concerned in
each individual case shall act under
supervision of the Regional Higher
Education Officer, but in the exercise of
their independent discretion. They will
not be influenced by any direction of the
State
Government
carried
in
the
impugned order or any further order
made by them in the matter.

50. There shall be no order as to costs.
----------
(2025) 8 ILRA 747
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.08.2025

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 66368 of 2005

Umesh Chandra ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
P.K. Dwivedi, Virendra Singh

Counsel for the Respondents:
C.S.C., J.K. Khanna

ISSUE FOR CONSIDERATION
Whether refixation of pay and consequential
recovery after retirement, without notice or
opportunity of hearing, is sustainable in law.

HEADNOTE
Service Law - Pay Fixation - Recovery - Natural
Justice - No Recovery from Retired Employee -
Rafiq Masih principle - Retrospective correction
of pay fixation without notice - Unsustainable -
Orders quashed.
Held :
Petitioner,
who
retired
on
30.06.2005,
challenged
the
order
dated
13.07.2005
providing for refixation of pay w.e.f. 1.7.1985
and consequential orders of recovery. Court
held that petitioner was not put to notice and
not afforded opportunity to offer his explanation
prior to passing of the order. On the principles
of natural justice, the impugned order was set
aside and consequential orders of recovery also
quashed. Court held that no such recovery can
be enforced against retired class III and IV
employees after their retirement for any
correction of pay fixation. Petitioner having
retired on 30.06.2005, such recovery could not
have been proceeded with. Respondents were
directed to refix the pension and postretirement dues and the recovered amount shall
also be refunded to the petitioner within two
months' time. (Paras 8-16) (E-5)

CASE LAW CITED
State of Punjab and Others v. Rafiq Masih
(White Washer), (2015) 4 SCC 334; Sushil
Kumar Singhal v. Pramukh Sachiv, Irrigation
Department, (2014) 16 SCC 444

List of Acts
Constitution of India

List of Keywords
Recovery; Pay Fixation; Notice; Natural Justice;
Retired Employee; No Recovery; Pension; Last
Pay Drawn; Reasonable Period; Rafiq Masih;
Refund.

CASE ARISING FROM
Order
dated
13.07.2005
(refixation);
consequential recovery orders dated 27.09.2005
and 13.09.2005.

Appearances for Parties
Advs For Petitioner: P.K. Dwivedi; Virendra
Singh
Advs For Respondents: C.S.C.; J.K. Khanna

(Delivered by Hon'ble Ajit Kumar, J.)
748 INDIAN LAW REPORTS ALLAHABAD SERIES

1.Heard Sri Virendra Singh, learned
counsel for the petitioner and learned
Additional
Chief
Standing
Counsel
representing State respondents.

2.By means of present petition filed
under Article 226 of the Constitution,
petitioner has challenged the order dated
13th July, 2005 providing for refixation of
pay of the petitioner w.e.f. 1.7.1985 as the
pay fixation in the payscale of Rs. 450-720
w.e.f. 1.7.1985 has been cancelled. The
consequential order passed in that behalf on
27th
September,
2005
providing
for
recovery of excess amount paid to the
petitioner by way of salary passed by
Superintendent Engineer has also been
challenged and so also final consequential
order passed by Executive Engineer dated
30th
September,
2005
directing
for
recovery has been challenged.

3.The basic argument advanced to
assail the orders is that petitioner having
retired on 30th June, 2005 from post of
junior clerk, no such pay refixation could
have been order w.e.f on 1st July, 1985 and
that too without any notice and opportunity
of hearing to him. Yet another argument
advanced is that subsequently the State
Government
itself
has
released
a
Government Order that such correction in
pay fixation beyond period of 34 weeks
prior to the date of retirement, to be bad. It
is, therefore, argued that this being
beneficial peace of subordinate legislation,
its scope and ambit can be made effective
in so far as its applicability is concerned,
though on principles. It is also submitted
that at no point of time petitioner had made
any misrepresentation for particular pay
fixation and hence petitioner cannot be
saddled with liability for recovery on the
principle of Suggestio falsi" or "suppressio
veri"

4.It is also submitted on behalf of the
petitioner that case of the petitioner stands
squarely covered with the judgment in the
case of State of Panjab and Others v.
Rafiq Masih (White Washer) (2015) 4
SCC 334. Vide paragraph 12, the Court
has held thus:

"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
8 All. Umesh Chandra Vs. State of U.P. & Ors.
749
an extent, as would far outweigh the
equitable balance of the employer's right to
recover."

5.Learned counsel for the petitioner
states that respondents in the counter
affidavit having failed to demonstrate that
petitioner at any point of time had given
any undertaking for recovery of such pay
fixation, for any wrongful pay fixation,
corrections cannot be enforced by way of
recovery of the excess payment .

6.Meeting
the
submissions
so
advanced by learned counsel for the
petitioner,
Learned
Additional
Chief
Standing Counsel sought to urge that pay
fixation correction is not bad for the
reason that petitioner could not have been
given benefit of 10 years service w.e.f.
1985.
He
further
argues
that
the
Government Order brought in the year
2007 cannot be given retrospective effect
unless and until Government Order so
provides. However, on the point of non
compliance of principles of natural justice,
he has placed only reliance upon reply
given in paragraph 13 of the counter
affidavit that as per relevant service
records, such correction was accorded.
Thus, it is not denied that petitioner was not
afforded any opportunity of hearing before
passing of the order for correction of refixation.

7.Having heard learned counsel for the
respective parties and having perused the
records, what I find from the perusal of the
order of pay fixation is that, it can be
undisputedly concluded that petitioner was
not put to notice prior to passing of the
order. Justification is sought to be given
that certain investigation was carried out in
the matter of pay fixation as such and
queries were put, but such internal
departmental communication cannot have
bearing upon the rights of an employee if
he is not afforded opportunity to offer his
explanation. Thus on the principles of
natural justice, the order dated 13th July,
2005 directing for re-fixation w.e.f on 1st
January, 1985 cannot be sustained and on
this ground alone, the order deserves to be
set aside and so also consequential orders
of recovery.

8.Since order dated 13th July, 2005 is
unjustified are all consequential orders
being date 27th September, 2005 and 13th
September, 2005 passed by Superintending
Engineer Minor Irrigation, Gorakhpur and
the Executive Engineer Minor Irrigation,
Gorakhpur respectively are liable to be
held unsustainable.

9.On the point of recovery were to be
made or not, the legal position stands
crystalized in the judgment of the Supreme
Court in the case of State of Panjab v.
Rafiq Masih (supra) wherein the Court has
clearly laid down that no such recovery can
be enforced against retired class III and IV
employees after their retirement for any
correction of pay fixation. Admittedly
petitioner
had
attained
the
age
of
superannuation on 30th June, 2005, and
therefore, such recovery could not have
been proceeded with. This legal principle
though came to be enunciated by Supreme
Court in its judgment passed in the year
2014, but the object and that was kept in
mind and the principle behind the ratio if
applied to the present case, then legal
position shall remain same. It is also settled
law that enforcement of common law
means law made by the Judge/Court of
Law and enforcement of such law is always
taken to be on the principle that law laid
down always stood there unless the Court
makes it prospective.
750 INDIAN LAW REPORTS ALLAHABAD SERIES

10.In
view
of
above,
therefore,
recovery is held to be bad as a consequence
to the order of pay fixation dated 13th July,
2005. This Court is also of the considered
view that such correction in pay fixation
should be within a reasonable period and
that too where employee has retired. In
service jurisprudence, the legal position has
been that employer employee relationship
exists so long as an employee is working in
the establishment as once an employee
attains the age of superannuation, this
relationship comes to an end. This is the
reason why for continuation of disciplinary
proceedings drawn prior to an employee
attaining the age of superannuation, the law
had to be made by State Government
giving special power to Governor to be
exercised
in
such
cases.
In
such
circumstances,
the
said
principle
if
borrowed here, then no such action ought
to have been taken without sanction of the
State Government even in the matter of pay
fixation . In order to arrest this situation,
State Government brought into force the
Government Order in on 16th January,
2007, which has been interpreted by the
Supreme Court in the case of Sushil
Kumar Singhal Vs. Pramukh Sachiv
Irrigation Department and others, 2014
(16) SCC 444. Hence, I consider it
appropriate to apply those principles in the
present case as well to hold that such
fixation beyond reasonable period was
certainly bad and hence the order dated
13th July, 2005 is equally liable to be held
bad on this ground.

11.In view of above, this writ petition
succeeds and is allowed. The order dated
13th July, 2025 directing for re-fixation of the
petitioner w.e.f. 1.1.2005 and consequential
recovery dated 27the September, 2005 passed
by
Superintendent
Engineer,
Minor
Irrigation,
Gorakhpur
as
well
as
Consequential Order of recovery passed by
Executive Engineer Minor Irrigation
Division Gorakhpur dated 13th September,
2005 are hereby quashed.

12.Respondent concerned is directed to
re-fix the pension and post retirement dues of
the petitioner on the basis of last pay drawn
on the date of his retirement i.e. dated 30th
June, 2005. Revised pension and post
retirement dues shall be paid to the petitioner
and recovered amount made shall also be
replaced to the petitioner within next two
months' time.

13.Entire computation shall be done
accordingly in terms of order passed by this
Court and the amount liable to be refunded to the
petitioner shall be credited into account within
the same period. Difference of arrears of pension
and other retirement dues on account of orders
impugned if set aside shall also be calculated and
the amount shall also be credited into account of
the petitioner within the same period.

14.It is made clear that if order remains
uncomplied with, the respondent shall be
liable to be payable interest @ 8 percent over
and above amount to be paid to the petitioner
upon expiry of period of two months till
actual payment is made.
----------
(2025) 8 ILRA 750
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.08.2025

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ B No. 669 of 2025

Shahadat Ali & Anr. ...Petitioners
Versus
Board Of Revenue, U.P. , Lko. & Ors.
 ...Respondents