JUDGMENT : Abdul Moin, J. 1 . Heard. 2 . Instant writ petition has been filed seeking following reliefs:- "(a) issue a writ, order or direction in the nature of certiorari quashing the orders dated 31.07.2024 and 29.08.2024 as contained in Annexure no.11 & 10 respectively to this writ petition. (b) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to not to reduce the basis monthly pension of the petitioner from Rs.56,200/- to Rs.52,950/- per month and restore the monthly basic pension of the petitioner at Rs.56,200/- per month and continue to pay him pension at that rate. (c)...." 3 . Bereft of unnecessary details the facts of the case as set forth by the petitioner are that the petitioner retired on attaining the age of superannuation on 30.04.2021. All the dues were paid to the petitioner on 22.05.2021. All of sudden, pay of the petitioner was reduced and a recovery ordered vide order dated 31.01.2024, a copy of which is Annexure-2 to the petition. 4 . Being aggrieved the petitioner filed Writ A No.1336 of 2024 In Re Anil Kumar Gangwar vs State of U.P. & Ors. This Court vide order dated 19.03.2024, a copy of which is Annexure-3 to the petition, quashed the order dated 31.01.2024 and granted liberty to the respondents to pass a fresh order in accordance with law but after issuing show cause notice to the petitioner. 5 . A Show Cause Notice dated 03.04.2024, a copy of which is Annexure-4 to the petition, was issued to the petitioner. The petitioner claims to have submitted his reply on 08.04.2024 and 30.04.2024. 6 . Vide order dated 10.05.2024, a copy of which is Annexure-7 to the petition, an order of recovery was again passed against the petitioner. Being aggrieved the petitioner filed Writ A No.4742 of 2024 In Re Anil Kumar Gangwar vs State of U.P. & Ors . This Court vide interim order dated 27.06.2024, a copy of which is Annexure-8 to the petition, stayed the recovery initiated against the petitioner in pursuance to the order dated 10.05.2024 until further orders. It is stated that the said writ petition is still pending before this Court for consideration. 7 . This Court vide interim order dated 27.06.2024, a copy of which is Annexure-8 to the petition, stayed the recovery initiated against the petitioner in pursuance to the order dated 10.05.2024 until further orders. It is stated that the said writ petition is still pending before this Court for consideration. 7 . Subsequent thereto the respondent No.2 passed the impugned order dated 31.07.2024, a copy of which is Annexure-11 to the petition, whereby the respondent No.3 has been informed that in pursuance to the order of the writ court dated 27.06.2024, no recovery is to be made from the pension of the petitioner but the revised pension payment order dated 31.07.2024 was being sent to the respondent No.3. 8 . The revised pension payment order dated 31.07.2024, a copy of which is part of Annexure-11 to the petition (Page 83), would indicate that the pay of the petitioner has been reduced which according to the petitioner was earlier Rs.56,200/- which now stands reduced to Rs.52,950/- as indicated in the pension payment order. This also stands indicated in the order dated 29.08.2024, a copy of which is Annexure-10 to the petition, which has been issued by the Lucknow Development Authority, which indicates the earlier pay of the petitioner was Rs.56,200/- vis a vis Rs.52,950/- as finds place in the revised pension payment order. 9 . On the basis of the order dated 31.07.2024 another order dated 29.08.2024, a copy of which is Annexure-10 to the petition was issued which indicates reduction in the pay of the petitioner which the petitioner was drawing at the time of his retirement and the Lucknow Development Authority having written to the bank for deduction of amount of Rs.35,579/- per month from the pension of the petitioner. The order also contains a note for not deducting any amount till further orders. 10 . Being aggrieved the instant writ petition has been filed. 11 . The order also contains a note for not deducting any amount till further orders. 10 . Being aggrieved the instant writ petition has been filed. 11 . Contention of the learned counsel for the petitioner is that despite the order of the writ court dated 19.03.2024 which had granted liberty to the respondents to pass a fresh order after due opportunity of hearing to the petitioner, the Show Cause Notice dated 03.04.2024 that has been issued to the petitioner does not indicate any notice pertaining to any action to be undertaken for the purpose of reduction of pension of the petitioner and for making any deduction from the pension of the petitioner and consequently the impugned order would be in the teeth of the judgment and order dated 29.03.2024 passed by the writ court which has attained finality as such the order impugned merits to be quashed on this ground alone. 12 . Further, Shri Shireesh Kumar, learned counsel for the petitioner places reliance on the judgment of the Hon'ble Supreme Court in the case of State of Punjab & Ors vs. Rafiq Masih (White Washer): (2015) 4 SCC 334 to contend that no recovery can be made from a retired employee. Further reliance has been placed on the recent judgment of the Hon'ble Supreme Court in the case of Jagdish Prasad Singh vs State of Bihar & Ors : 2024 SCC OnLine SC 1909 wherein the Hon'ble Supreme Court after placing reliance on its earlier judgment in the case of Syed Abdul Qadir vs State of Bihar : (2009) 3 SCC 475 has held that a decision taken by the State Government to reduce an employee's pay scale and recover the excess amount cannot be applied retrospectively and that too after long time gap to contend that once the respondents in the counter affidavit have specifically averred that the benefit that had been granted to the petitioner had been granted on the basis of his alleged option of retiring at the age of 58 years as such it is apparent that the said benefits have been given to the petitioner a long time back and consequently there cannot be any occasion for re-fixation or recovery. 13 . 13 . Shri Shireesh Kumar, learned counsel for the petitioner also points out that a specific averment has been made in para 17 of the writ petition that at no stretch of time has he ever exercised an option for retirement at the age of 58 years which averment has not been denied by the respondents while giving the reply to the aforesaid para as would be apparent from perusal of the para 7 of the counter affidavit filed on behalf of the respondent No.2 meaning thereby that even the respondents do not deny that the petitioner at no stretch of time had given an option for retirement at the age of 58 years consequently the respondents on their own accord had extended the said benefit as a matter of course as such there cannot be any occasion of making any recovery from the petitioner. 14 . Responding to the aforesaid arguments Shri Jyotinjay Verma, learned counsel appearing for respondent No.2 has argued on the basis of the averments contained in the counter affidavit that the petitioner has received the benefits of higher pay fixation on account of he having given the option of retiring at the age of 58 years which entailed benefits in respect of increments and promotional pay scale to be granted after completion of 8 years, 14 years, 19 years and 24 years of service. 15 . It is contended that as the petitioner retired at the age of 60 years, he was entitled to the benefits of increments and promotional pay scale after completion of 10 years, 16 years, 19 years and 24 years of service and thus it is apparent that the petitioner has been given enhanced benefits which were admissible to him had he retired on attaining the age of 58 years and as he has continued to 60 years consequently as he is not entitled to the enhanced benefit as such a conscious decision has been taken for reduction of his pay and for making recovery from the pension of the petitioner. 16 . 16 . Shri Verma also argues that the petitioner had given an affidavit dated 20.05.2021, a copy of which is Annexure-1 to the counter affidavit, whereby the petitioner had undertaken that in case he has been given the benefits to which he was not entitled as per the rules consequently he would have no objection to the same being revised and also undertook to refund the excess amount, if any, that has been paid to him. 17 . Placing reliance on the judgment of the Hon'ble Supreme Court in the case of High Court of Punjab & Haryana & Others vs. Jagdev Singh reported in 2016 (14) SCC 267 the argument is that once the undertaking has been given by the petitioner authorizing the respondents to recover the excess amount or pay back the same consequently no error has been committed by the respondents in issuing the impugned order. 18 . Shri Verma has also placed reliance on the Rules applicable in the Department more particularly Rule 13(4) of the Uttar Pradesh Vikas Pradhikaran Kendriya Sewanivratti Labh Niyamavali, 2011 (hereinafter referred to as 'Rules, 2011') to contend that the said undertaking has been given by the petitioner in terms of the aforesaid rule and consequently the petitioner would be bound by the aforesaid undertaking that has been given by him. Consequently no error has been committed by the respondents while passing the order impugned. 19 . Shri Anagh Shukla, learned counsel appearing for respondent No.3 states that the order impugned dated 29.08.2024 as has been issued by the respondent No.3, has been issued on the basis of letter dated 31.07.2024 that has been sent by the respondent No.2 and once re-fixation/reduction of the pay of the petitioner has been done consequently even the pension would stand reduced with a further direction for making recovery from the pension of the petitioner which recovery at the moment has been stopped consequently no error has been committed by the respondents while passing the order impugned. He also adopts the arguments of Shri Jyotinjay Verma, Advocate. 20 . Heard learned counsels for the parties and perused the record. 21 . From the arguments as raised by the learned counsels for the contesting parties and perusal of record, it emerges that the petitioner retired on attaining the age of superannuation on 30.04.2021. He also adopts the arguments of Shri Jyotinjay Verma, Advocate. 20 . Heard learned counsels for the parties and perused the record. 21 . From the arguments as raised by the learned counsels for the contesting parties and perusal of record, it emerges that the petitioner retired on attaining the age of superannuation on 30.04.2021. An order dated 31.01.2024 was issued by the respondents reducing the pay of the petitioner and directing for a recovery. The said order was quashed by the writ court vide judgment and order dated 19.03.2024. The respondents were granted liberty to pass a fresh order. A Show Cause Notice dated 03.04.2024 was issued to which a reply was submitted by the petitioner but vide order dated 10.05.2024 an order of recovery was again passed against the petitioner. Said order was challenged in Writ A No.4742 of 2024 by the petitioner in which an interim order dated 27.06.2024 was passed and the recovery initiated against the petitioner was stayed until further orders which writ petition is still pending for consideration before this Court. 22 . Subsequent thereto, the respondent No.2 passed the order impugned dated 31.07.2024 whereby the petitioner has been informed that in pursuance to the order of this Court dated 27.06.2024 no recovery is to be made from the pension of the petitioner but the revised pension payment order dated 31.07.2024 was being sent to respondent No.3. A perusal of the revised pension payment order would indicate that the pay of the petitioner has been reduced from Rs.56,200/- which he was drawing earlier to Rs.52,950/- as indicated in the pension payment order. This would also be clear from perusal of the order dated 29.08.2024 which has been passed by the respondent No.3. 23 . On the basis of the order dated 31.07.2024 the order impugned dated 29.08.2024 was issued by the respondent No.3 indicating the reduction in the pay of the petitioner, which the petitioner was drawing at the time of his retirement vis a vis as indicated in the order dated 31.07.2024. The said order indicates of respondent No.3 having written to the bank for deduction of an amount of Rs.35,579/- per month from the pension of the petitioner but the order also contains a note for not deducting any amount till further orders. 24 . Being aggrieved by the orders dated 31.07.2024 and 29.08.2024, the instant petition has been filed. 25 . 24 . Being aggrieved by the orders dated 31.07.2024 and 29.08.2024, the instant petition has been filed. 25 . Argument of the learned counsel for the petitioner is on the basis of judgment of Hon'ble Supreme Court in the case of Rafiq Masih (supra) wherein the Hon'ble Supreme Court has held that no recovery can be made from a retired employee. 26 . The judgment of the Hon'ble Supreme Court in the case of Jagdev Singh (supra) over which reliance has been placed by the learned counsel for the respondents has been distinguished by the learned counsel for the petitioner on the ground that at the time of his initial pay fixation, no such undertaking was given by him rather the undertaking over which reliance has been placed by the respondents is an undertaking dated 25.05.2021 which is subsequent to the retirement of the petitioner and thus it is contended that the respondents are precluded from making any recovery from the petitioner. 27 . Placing reliance on the judgment of the Hon'ble Supreme Court in the case of Jagdish Prasad Singh (supra) the argument is that even re-fixation cannot be made as said pay fixation has been done long time back and the Hon'ble Supreme Court in the judgment of the Jagdish Prasad Singh (supra ) has held that pay re-fixation cannot be done after long period of time. 28 . On the other hand, learned counsel for the respondents has justified the recovery from the pension of the petitioner by contending that as the petitioner had given an undertaking authorizing the respondents to recover excess amount from the petitioner consequently keeping in view the judgment of the Hon'ble Supreme Court in the case of Jagdev Singh (supra) they are within the rights of passing the orders impugned and for making recovery from the petitioner after refixation of pay. 29 . Considering the aforesaid arguments, following questions are required to be considered by this Court, which are indicated below:- (a) Whether any recovery can be made from a retired employee? (b) In case an undertaking has been given by an employee authorizing the respondents to recover wrong fixation then whether the judgment of the Hon'ble Supreme Court in the case of Rafiq Masih (supra) would be attracted? and (c) Whether refixation of pay can be done after long period of time? 30 . (b) In case an undertaking has been given by an employee authorizing the respondents to recover wrong fixation then whether the judgment of the Hon'ble Supreme Court in the case of Rafiq Masih (supra) would be attracted? and (c) Whether refixation of pay can be done after long period of time? 30 . As questions (a) and (b) are dependent on each other consequently they are being taken up together for being decided. 31 . The matter pertaining to recovery from a retired employee has engaged the attention of the Hon'ble Supreme Court in the case of Rafiq Masih (supra) wherein the Hon'ble Supreme Court has held as under:- "12. 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." (emphasized by Court) 32 . From perusal of the judgment of the Hon'ble Supreme Court in the case of Rafiq Masih (supra), it is apparent that no recovery is permissible from a retired employee and consequently it is apparent that the respondents are precluded from making any recovery from the petitioner. 33 . From perusal of the judgment of the Hon'ble Supreme Court in the case of Rafiq Masih (supra), it is apparent that no recovery is permissible from a retired employee and consequently it is apparent that the respondents are precluded from making any recovery from the petitioner. 33 . However, at the same time, the Court may not lose sight of the undertaking/affidavit dated 20.05.2021 which has been given by the petitioner undertaking before the respondents that in case he has been given the benefits to which he was not entitled as per the rules, consequently, he would have no objection for the same being revised and also to refund the excess amount. 34 . At the first blush, the said undertaking appears to fall within the ambit of the Hon'ble Supreme Court in the case of Jagdev Singh (supra) However, the petitioner admittedly retired on 30.04.2021 while the undertaking /affidavit has been given on 20.05.2021 i.e. subsequent to the retirement of the petitioner. 35 . In the aforesaid case, Jagdev Singh (supra) who was working as Civil Judge (Jr. Division), at the time of being given the senior scale of pay was required to submit an undertaking that excess amount which may be found to have been paid will be refunded to the Government. In pursuance thereof and while being paid the revised pay scale, Jagdev Singh undertook to refund any excess payment if it was so detected and demanded. Subsequently the revised pay scale was allowed to him. A few years later, a letter for recovery of an alleged excess amount was served upon Jadgev Singh. The said action for recovery was challenged before the High Court wherein the writ petition filed by Jagdev Singh was allowed. Upon challenge being raised to the judgement of the High Court by the Punjab and Chandigarh High Court before the Supreme Court, the Hon'ble Supreme Court after considering the judgment of Rafiq Masih (supra) held that the excess amount could be recovered where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. In these circumstances, the judgment of Rafiq Masih (supra) was distinguished. 36 . For the sake of convenience, the relevant observations of Jagdev Singh (supra) are reproduced as under:- "2. In these circumstances, the judgment of Rafiq Masih (supra) was distinguished. 36 . For the sake of convenience, the relevant observations of Jagdev Singh (supra) are reproduced as under:- "2. The facts lie in a narrow compass. The Respondent was appointed as a Civil Judge (Junior Division) on 16 July 1987 and was promoted as Additional Civil Judge on 28 August 1997 in the judicial service of the State. By a notification dated 28 September 2001, a pay scale of Rs. 10000-325-15200 (senior scale) was allowed under the Haryana Civil Service (Judicial Branch) and Haryana Superior Judicial Service Revised Pay Rules 2001. Under the rules, each officer was required to submit an undertaking that any excess which may be found to have been paid will be refunded to the Government either by adjustment against future payments due or otherwise. 3. The Respondent furnished an undertaking and was granted the revised pay scale and selection grade of Rs. 14300-400- 18000-300. While opting for the revised pay scale, the Respondent undertook to refund any excess payment if it was so detected and demanded subsequently. The revised pay scale in the selection grade was allowed to the Respondent on 7 January 2002. 4. The Respondent was placed under suspension on 19 August 2002 and eventually, was compulsorily retired from service on 12 February 2003. 5. In the meantime, this Court in Civil Writ (C) 1022 of 1989 accepted the recommendations of the First National Judicial Pay Commission (Shetty Commission). Thereupon, the Haryana Civil Services (Judicial Branch) and Haryana Superior Judicial Service Revised Pay Rules 2003 were notified on 7 May 2003. 6. In view thereof the pay scales of judicial officers in Haryana were once again revised with effect from 1 January 1996. An exercise was undertaken for adjustment of excess payments made to judicial officers, following the notification of the revised pay rules. On 18 February 2004, a letter for the recovery of an amount of Rs. 1,22,003/- was served upon the Respondent pursuant to the direction of the Registrar of the High Court. 7. The Respondent challenged the action for recovery in writ proceedings Under Article 226. The petition was allowed by the impugned judgment of the High Court. On 18 February 2004, a letter for the recovery of an amount of Rs. 1,22,003/- was served upon the Respondent pursuant to the direction of the Registrar of the High Court. 7. The Respondent challenged the action for recovery in writ proceedings Under Article 226. The petition was allowed by the impugned judgment of the High Court. The High Court found substance in the grievance of the Respondent that the excess payment made to him towards salary and allowance prior to his retirement could not be recovered at that stage, there being no fraud or misrepresentation on his part. 8. The order of the High Court has been challenged in these proceedings. From the record of the proceedings, it is evident that when the Respondent opted for the revised pay scale, he furnished an undertaking to the effect that he would be liable to refund any excess payment made to him. In the counter affidavit which has been filed by the Respondent in these proceedings, this position has been specifically admitted. Subsequently, when the Rules were revised and notified on 7 May 2003 it was found that a payment in excess had been made to the Respondent. On 18 February 2004, the excess payment was sought to be recovered in terms of the undertaking. 9. The submission of the Respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the state. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the Respondent was clearly on notice of the fact that a future re-fixation or revision may warrant an adjustment of the excess payment, if any, made. 10. In State of Punjab and Ors. etc. v. Rafiq Masih (White Washer) etc. While opting for the benefit of the revised pay scale, the Respondent was clearly on notice of the fact that a future re-fixation or revision may warrant an adjustment of the excess payment, if any, made. 10. In State of Punjab and Ors. etc. v. Rafiq Masih (White Washer) etc. this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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. 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 scale. He is bound by the undertaking". (emphasized by Court) 37 . In the instant case, as per the respondents themselves, erroneous fixation of pay has occurred on account of the petitioner being given enhanced benefits by treating his retirement at 58 years vis a vis 60 years at which he admittedly retired which resulted in the petitioner being given increments and promotional pay scale after completion of 8 years, 14 years, 19 years and 24 years of service instead of on completing 10 years, 16 years, 19 years and 24 years of service. Obviously, the said benefits were given to the petitioner at the time when he was in service and thus the undertaking which has been given by the petitioner subsequent to his retirement on 30.04.2021 on 20.05.2021 would not authorize or empower the respondents from making any recovery from the dues/pension of the petitioner. 38 . Accordingly, judgment of the Hon'ble Supreme Court in the case of Jagdev Singh (supra) would have no applicability to the facts of the instant case so as to authorize the respondents from recovering any amount from the petitioner in pursuance to the undertaking given by him. Both the questions stand decided accordingly. 39 . So far as question (c) is concerned, Hon'ble Supreme Court in the case of Jagdish Prasad Singh (supra) has held as under:- "21. We firmly believe that any decision taken by the State Government to reduce an employee's pay scale and recover the excess amount cannot be applied retrospectively and that too after a long time gap. " 40 . From perusal of the judgment of the Hon'ble Supreme Court in the case of Jagdish Prasad Singh (supra), it clearly emerges that the Hon'ble Supreme Court has held that an employee's pay scale cannot be reduced after a long time gap. 41 . In the instant case, as per the respondents themselves the wrong fixation appears to have occurred on account of petitioner being granted the benefits of increment and promotional pay scale on completion of 8 years, 14 years, 19 years and 24 years of service vis a vis 10 years, 16 years, 19 years and 24 years of service to which he was actually entitled meaning thereby that the pay fixation, grant of increments and grant of promotional pay scale occurred a long time back. Thus keeping in view the judgment of the Hon'ble Supreme Court in the case of Jagdish Prasad Singh (supra) the respondents are clearly precluded in refixing the pay and consequently the pension of the petitioner. The said question also stands answered accordingly. 42 . Keeping in view the aforesaid discussion, the writ petition is allowed . A writ of certiorari is issued quashing the order dated 31.07.2024 and 29.08.2024, copies of which are Annexure-11 and 10 respectively. The said question also stands answered accordingly. 42 . Keeping in view the aforesaid discussion, the writ petition is allowed . A writ of certiorari is issued quashing the order dated 31.07.2024 and 29.08.2024, copies of which are Annexure-11 and 10 respectively. A writ of mandamus is issued commanding the respondents to pay monthly pension to the petitioner on the basis of pay of the petitioner of Rs.56,200/- along with all consequential benefits.