1. The present petition has been filed by the petitioner under Article 226 of the Constitution of India seeking following reliefs :-

          "It is prayed that this Hon'ble Court may kindly be pleased to quash impugned order of recovery dated 29/02/2024 as Ann. P/2. Further may kindly be pleased to issue a writ of mandamus commanding the respondents to refund entire recovery Rs.11,93,726/- along with fixation to the petitioner from due dated, with 9% interest, in the interest of justice, including all the consequential benefits admissible under the law relevant to the subjects."

2. It has been submitted by learned counsel for the petitioner that the petitioner stood retired with effect from 30.06.2023 from the post of Senior Lecture. It is submitted that after retirement recovery of an amount of Rs.11,93,726/- as excess payment has been made from the gratuity of the petitioner.

3. It is further submitted that the said excess amount, of which recovery has been sought, is in respect of erroneous pay fixation on account of granting second and third Kramonnati w.e.f. 27.01.2009 and 26.06.2019 respectively and the recovery of which is being sought after retirement along with interest. It is submitted that in the light of the Judgment of the Hon'ble Apex Court in the case of State of Punjab & Others Vs. Rafiq Masih, (2015) 4 SCC 334, the respondent/State is not entitled to recover the amount of excess payment of the salary granted to the petitioner due to erroneous fixation of pay by the respondents, at the time of retirement and prayed for quashment of the order.

4. Per contra, learned counsel for the State has submitted that the petitioner had submitted undertakings at the time of re-fixation of the Pay Scale as per the respective Pay Revision Rules. It is further submitted that the petitioner is not entitled for the enhanced amount, which has been granted to her because of the erroneous fixation, which is required to be adjusted from her pensionary benefits and prayed for dismissal of the petition.

5. Heard learned Counsel for the parties and perused the record.

6. The Hon'ble Apex Court in the case of Rafiq Masih (Supra) has carved out exception in regard to recovery of excess payment to the employee which is reproduced hereinunder:-

          "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 an extent, as would far outweigh the equitable balance of the employer's right to recover."

7. It is seen that admittedly the petitioner is a Class-III employee and falls in the category (ii) of the said Judgment. Similarly, it is also found that the recovery of the excess amount has been sought after the retirement of the petitioner and the said recovery is due to the erroneous fixation of pay on account of respective upgradation in the pay. Thus, the petitioner also falls in the category (iii) of the judgment.

8. The counsel for the respondents had tried to distinguish the case on the basis of the Judgement of Hon'ble Apex Court in the case of High Court of Punjab and Haryana & Others Vs. Jagdev Singh (2016) 14 SCC 267 by submitting that at the relevant point of time the petitioner has submitted undertaking that in case the petitioner is paid in excess to the entitlement, then it shall be refunded back. However, Full Bench of this Court in the case of The State of M.P. & Others Vs. Jagdish Prasad Dubey vide Order dated 6.3.2024 passed in WA No.815/2017 has held as under:-

          "35.(a) Question No.1 is answered by holding that recovery can be effected from the pensionary benefits or from the salary based on the undertaking or the indemnity bond given by the employee before the grant of benefit of pay refixation. The question of hardship of a Government servant has to be taken note of in pursuance to the judgment passed by the Larger Bench of the Hon'ble Supreme Court in the case of Syed Abdul Qadir (supra). The time period as fixed in the case of Rafiq Masih (supra) reported in (2015) 4 SCC 334 requires to be followed. Conversely an undertaking given at the stage of payment of retiral dues with reference to the refixation of pay or increments done decades ago cannot be enforced.

          (b) Question No.2 is answered by holding that recovery can be made towards the excess payment made in terms of Rules 65 and 66 of the Rules of 1976 provided that the entire procedures as contemplated in Chapter VIII of the Rules of 1976 are followed by the employer. However, no recovery can be made in pursuance to Rule 65 of the Rules of 1976 towards revision of pay which has been extended to a Government servant much earlier. In such cases, recovery can be made in terms of the answer to Question No.1.

          (c) Question No.3 is answered by holding that the undertaking given by the employee at the time of grant of financial benefits on account of refixation of pay is a forced undertaking and is therefore not enforceable in the light of the judgment of the Hon'ble Supreme Court in the case of Central Inland Water Transport Corporation Limited (supra) unless the undertaking is given voluntarily."

9. When the facts of the present case have been tested on the anvil of the Principle laid by this Court in the case of Jagdish Prasad Dubey (Supra), it is found that the undertaking cannot be used against the petitioner for recovery of the amount, which has been paid decade ago. It is also held that any undertaking given by the employee at the time of pay fixation on account of re-fixation of pay is a forced undertaking, and therefore, is not enforceable in the light of Judgement of the Hon'ble Supreme Court in the case of Central Inland Water Transport Co. Ltd. & Another Vs. Brojo Nath Ganguly and Another reported in (1986) 3 SCC 156, unless the undertaking is given voluntarily. The respondent/State has not substantiated that the undertaking has been given voluntarily.

10. Thus, on the basis of above enunciation of law and considering the factual matrix of the case, this Court is of the opinion that the impugned recovery directed against the petitioner vide Annexure P/2 could not pass judicial scrutiny of this Court and is hereby quashed. The respondents are directed to make the entire payment of the amount sought to be recovered through the order Annexure P/2 within a period of three months from the date of production of certified copy of the order.

11. The petition stands disposed of accordingly.