- (1.) Heard Mr. Anupam Dwivedi, learned counsel for the petitioner as well as learned Standing Counsel.
(2.) The petitioner has assailed the judgment and order dated 15.4.2014 passed by the State Public Services Tribunal, Lucknow, in Claim Petition No. 1310 of 2011. The petitioner, before the State Public Services Tribunal has filed the claim petition challenging the order dated 15.7.2011, whereby his pay scale was re-fixed and an order of recovery dated 25.7.2011 of salary paid to him in excess of admissible amount was issued. The petitioner retired from the post of Junior Engineer on 30.6.2007. The petitioner's pension was sanctioned on 17.04.2008. The State Government for implementation of the 6th Pay Commission with effect from 01.01.2006, revised the pay scale of the petitioner and re-fixed the petitioner's pension vide order dated 15.07.2011. Since by that time, the petitioner had been paid the amount excess to the admissible amount, simultaneously, recovery order was also issued against him on 25.7.2011. The respondents had contested the matter before the Tribunal and submitted that the petitioner had been granted second promotional pay-scale by the Joint Director (Agriculture), Azamgarh, on 20.03.2001 in the pay scale of Rs. 8000-13500/- with effect from 01.03.2000. He attained the age of superannuation on 30.6.2007. While implementing the recommendation of the 6th Pay Commission, his pay scale was revised with effect from 01.04.2006, however, later on it was revealed that the petitioner had already been granted the second promotional pay scale by means of order dated 20.03.2001. On his undertaking given by him vide letter dated 03.02.2009 that if any excess amount has wrongly been paid to him against his entitlement, the same can be adjusted in future against the payment made or can be recovered by other means. The petitioner had been working as Class - II officer and he was granted the pay scale of Rs. 10,000-15,200/-, which was admissible to Class-I officer, since he was not entitled to get the salary in the pay scale of Rs. 10000-15,200/- an order of recovery was issued to him. Whereas learned counsel for the petitioner has submitted that the said fixation was done after petitioner's retirement from service. The petitioner retired from service on 30.6.2007, whereas the pay scale was revised (reduced) later on, which is not permissible in the eyes of law.
(3.) It has been submitted that the salary paid to the petitioner may be in excess of the admissible amount has been saved by the Supreme Court in its judgment in State of Punjab and others v. Rafiq Masih (White Washer) and others, reported in (2015) 4 Supreme Court Cases 334 . Relevant paragraph 18 of which 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 herein above, we may, as a ready reference, summarize 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 an extent, as would far outweigh the equitable balance of the employer's right to recover.;