Bramha Chaudhary vs State of U.P. and Others

Amreshwar Pratap Sahi, J.—Heard learned Counsel for the Petitioner and the learned standing counsel for the Respondents.

Affidavits have been exchanged between the parties.

The short question involved in this petition is that the Respondents have proceeded to recover the amount which they allege to have been paid in excess to the Petitioner on account of a wrong fixation of the salary with effect from 1.7.1979.

Learned Counsel for the Petitioner contends that the Petitioner retired on 30.6.2006. This wrong fixation was continued for about 14 years and was not corrected before his superannuation. learned Counsel for the Petitioner contends that such recovery is impermissible in view of the large number of decisions by the Apex Court and this Court which rule that in the event there is no fraud or misrepresentation by the employee then such recovery is not possible.

Learned standing counsel on the other hand contends that the pay fixation has been incorrectly made and therefore it can be rectifies.

Having considered the aforesaid submissions the first part of the submission has to be accepted that the recovery cannot be made on account of wrong fixation unless there is a charge of fraud or misrepresentation. In the present case it is admitted that on account of wrong fixation by the Respondents themselves the Petitioner has been paid excess amount. This aspect stands covered by the decision in the case of Dr. Gopalji Mishra Vs. State of U.P. and Others, Accordingly, the recovery order from the Petitioner under the impugned order dated 30.8.2007 is unsustainable. The amount sought to be recovered from the Petitioner is illegal and the Petitioner would be entitled to receive his pension without any such deduction.

However, the fixation part which has been rectified by the Respondents is upheld and the pension of the Petitioner shall be fixed according to the calculation made in this regard.

The writ petition is partly allowed. No order as to costs.