JUDGMENT : Abdul Moin, J. 1. Heard learned counsel for the petitioner, Shri Pankaj Patel, learned Standing counsel appearing on behalf of respondent No.1 and Shri Rishabh Tripathi, learned counsel appearing on behalf of respondents No.2 to 4. 2. With the consent of learned counsels appearing for the contesting parties, the writ petition is finally being decided. 3. The instant petition has been filed praying for the following main relief(s): "(i). Issue a writ, order or direction in the nature of certiorari thereby quashing the impugned order dated 13.10.2023 passed by the respondent No.3, a copy of which has been filed as annexure 1 to the petition. (ii). Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay the amount of Rs.553407.29/- along with interest which has been recovered by the respondents from the post retiral dues of the petitioner." 4. The contention of learned counsel for the petitioner is that the petitioner retired on attaining the age of superannuation on 30.11.2021 while working on the post of Sales Officer. Subsequent thereto, the respondents have issued the order impugned dated 13.10.2023, a copy of which is Annexure-1 to the writ petition, whereby they have made a recovery from the dues of the petitioner. 5. The contention is that at the time of retirement of the petitioner the Rules with which the petitioner was governed namely Model Conduct, Discipline and Appeal Rules for Services of U.P. State Enterprises Regulations (hereinafter referred to as "the Regulations") did not provide for taking of any action against a retired employee subsequent to the retirement of the employee concerned. 6. It is contended that an amendment in the Regulations has only been made by the respondent Corporation in its meeting held on 10.10.2022, a copy of which is part of Annexure SCA-2 to the supplementary affidavit dated 04.09.2024 per which it has been provided that in case subsequent to retirement of an employee any fact emerges then disciplinary proceedings can be held provided a period of four years has not lapsed since then. 7. 7. The contention is that in terms of Rule 48 of the Regulations any amendment could only come into force after a decision is taken by the Board and a decision has only been taken by the Board for amending its rules on 10.10.2022 consequently the petitioner having retired prior to the said date, the amended rules could not be made applicable for the petitioner for the purpose of taking action against the petitioner by way of recovery and hence the order impugned so far it pertains to recovery from the dues of the petitioner, merits to be set-aside. 8. The further contention is that the respondents have also indicated about an excess payment having been made on account of wrong fixation of his own salary by the petitioner while he was working as the Drawing & Disbursing Officer for which an amount of Rs.3,23,756/- has been adjusted from the gratuity payable to the petitioner. 9. The contention is that keeping in view of the law laid by the Hon'ble Supreme Court in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and Others 2015 (4) SCC 334 , no recovery is permissible from a retired employee and as such the order impugned dated 13.10.2023, so far as it pertains to recovering the amount of Rs.323756/-, merits to be quashed on this ground alone. 10. So far as the second recovery is concerned i.e. for an amount of Rs.229651.29/-, the contention of learned counsel for the petitioner is that the said recovery is towards the alleged loss which is said to have been caused by the petitioner to the Corporation and the order impugned for recovery having passed on 13.10.2023 and the petitioner having retired on 30.11.2021 and at the time of retirement of the petitioner there being no provision in the rules for making recovery from a retired employee, consequently, the amendment in rules, which has come into force subsequent to retirement of petitioner that is w.e.f. 10.10.2022, cannot be used by the respondents for making recovery from the petitioner. 11. 11. On the other hand, Shri Rishabh Tripathi, learned counsel appearing for the respondent(s)-Corporation has argued that the amendment in Rule 39 of the Regulations, which has come into force w.e.f. 10.10.2022, would also cover all retired employees provided the irregularity committed by them comes to the knowledge of the department within a period of four years of their retirement. As the petitioner has retired on 30.11.2021, consequently, the order impugned dated 13.10.2023, having been passed within the aforesaid period of four years, has correctly been passed and there is no infirmity in the same so far as it pertains to recovering an amount of Rs.2,29,651.29/- towards the loss caused to the Corporation. 12. Shri Tripathi, learned counsel for the respondent(s)- Corporation states that considering that the Board of Management has approved the said amendment in Rule 39 of the Regulations on 10.10.2022, as such, the said amendment would come into force with effect from the said date. 13. So far as the amount of Rs.3,23,756/- is concerned, Shri Tripathi has placed reliance on the judgment of Hon'ble Supreme Count in the case of High Court of Punjab and Haryana and Others vs. Jagdev Singh 2016 (14) SCC 267 to contend that as the petitioner had given an undertaking at the time of his pay fixation, a copy of which has been filed as annexure C.A.2 to the short counter affidavit dated 22.03.2024, that in case of wrong fixation, the excess amount can be recovered from his dues, consequently the respondents are within their right of recovering the aforesaid amount and the principle of law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) would not be applicable. 14. Heard the learned counsels for the parties and perused the record. 15. From the arguments as raised by learned counsels for the parties and a perusal of record, it emerges that the petitioner had retired on attaining the age of superannuation on 30.11.2021. Subsequent to his retirement, the order impugned dated 13.10.2023 has been passed for recovering of a certain amount from the petitioner. 16. 15. From the arguments as raised by learned counsels for the parties and a perusal of record, it emerges that the petitioner had retired on attaining the age of superannuation on 30.11.2021. Subsequent to his retirement, the order impugned dated 13.10.2023 has been passed for recovering of a certain amount from the petitioner. 16. The amount is sought to be recovered is in two parts namely (a) an amount of Rs.3,23,756/- is to be recovered on account of the incorrect pay fixation of his own salary which has been done by the petitioner while working as the Drawing & Disbursing Officer in the department and (b) a recovery of Rs.2,29,651.29/- which is towards the loss which has been caused to the Corporation. 17. So far as the amount of Rs.3,23,756/- is concerned, as the order impugned dated 13.10.2023 has been passed subsequent to the retirement of the petitioner, consequently at the first blush, the principle of law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) may be said to be applicable as the Hon'ble Supreme Court has said that no recovery can be made from a retired employee. 18. However, the controversy involved in the instant case is that the petitioner had given an undertaking, a copy of which has been filed as annexure CA-2 to the short counter affidavit, whereby he had authorised the Corporation to recover the amount from his dues in case any erroneous or wrong fixation is found in his pay fixation. Incidentally, there is no denial of the undertaking given by the petitioner as per the averment made in the rejoinder affidavit except indicating that the option was given in the year 2016-17 while recommending 7th pay scale while the recovery has been made on 17.11.2023. 19. Once an undertaking has been given by an employee, it is not the principle of law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) which would be applicable rather it would be the principle of law as per judgment of the Hon'ble Supreme Court in the case of Jagdev Singh (supra) which would be applicable wherein the Hon'ble Supreme Court, after considering an undertaking that had been given by an employee authorising the respondents to recover from his dues any erroneous fixation, has held as under: "11. The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scales. He is bound by the undertaking." 20. Accordingly, considering the law laid down by the Hon'ble Supreme Court in the case of Jadgev Singh (supra) , wherein the earlier judgment of Rafiq Masih (supra) had been considered and keeping in view of the undertaking that had been given by the petitioner authorising the respondents for recovering the amount from his dues in case any erroneous pay fixation was found and that the respondents in the order impugned having indicated that the amount of Rs.3,23,756/- is towards the erroneous pay fixation that had been done by the petitioner himself, consequently, no error is found in the order impugned dated 13.10.2023 so far as it pertains to recovering of an amount of Rs.3,23,756/- from the retiral dues of the petitioner. 21. At this stage, learned counsel for the petitioner states that the calculation sheet has not been provided to him. 22. It would be open for the respondents to supply the calculation sheet to the petitioner by which they have arrived at the figure of Rs.3,23,756/- and in case the petitioner is not satisfied with the same, he would be indicating the correct amount to be recovered which would also be considered in accordance with law by the respondents. 23. So far as the recovery of Rs.2,29,651.29/- is concerned, as has been indicated in the order impugned dated 13.10.2023, the sheet anchor of the respondent(s)-Corporation for recovering the said amount is on the basis of the amendment which has been made in the Regulations more particularly in Rule 39. 24. The amendment in Rule 39 of the Regulations reads as under: 25. The said amendment has been approved by the Board of Management in its meeting dated 10.10.2022 at Serial No.271(7) of the Resolution, a copy of which has been filed as part of annexure SCA-2 to the supplementary short counter affidavit. 26. Rule 48 of the Regulations reads as under: 27. The said amendment has been approved by the Board of Management in its meeting dated 10.10.2022 at Serial No.271(7) of the Resolution, a copy of which has been filed as part of annexure SCA-2 to the supplementary short counter affidavit. 26. Rule 48 of the Regulations reads as under: 27. From a perusal of the Rule 48 of the Regulations, it emerges that the Board can make amendment, changes and modification in the Rules and such changes will come into force w.e.f. the date indicated in the same. 28. Once the amendment in Rule 39 is read with Rule 48 of the Regulations, it clearly emerges that the said amendment of making recovery from a retired employee has only come into force w.e.f. 10.10.2022 and the instant case, the petitioner having retired at an earlier stretch of time i.e. 30.11.2021, would not be covered or governed by the said amendment whereby the Corporation has armed itself of making recovery after due proceedings from a retired employee. 29. Keeping in view of the aforesaid discussion, it is thus apparent that the order impugned dated 13.10.2023, so far as it recovers the amount of Rs.2, 29,651.29/- from the petitioner by exercising the power under the amended Rule 39 of the Regulations, has been exercised erroneously by the respondents which thus vitiates the order impugned dated 13.10.2023 to that extent. 30. Accordingly, the writ petition is partly allowed . The order impugned dated 13.10.2023, a copy of which is annexure 1 to the petition, so far as it directs for recovering of an amount of Rs.2,29,651.29/- from the petitioner, is quashed. The respondents are directed to refund the aforesaid amount, if already recovered, to the petitioner within a period of six weeks from the date of receipt of certified copy of this order.