Court No. - 30 Case :- WRIT - A No. - 65693 of 2008 Petitioner :- Bramha Chaudhari Respondent :- State Of U.P. & Others Petitioner Counsel :- H.K. Yadav,Smt. Sushma Yadav Respondent Counsel :- C.S.C. Hon'ble 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 mis-representation bythe 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 rectified.
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 the 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 Misra Vs. State of U.P. reported in 2004(2) ESC 791.
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.
Order Date :- 23.7.2010
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