1. This special appeal is directed against the judgment and order dated 22.11.2022 passed by learned Single Judge in Writ-A No.7718 of 2020 whereby the decision of the appellant to recover Rs.14,30,067/- from the retiral dues of the respondent has been set aside relying upon the judgment of the Supreme Court in the case of State of Punjab and others vs. Rafiq Masih (White Washer), 2015 (4) SCC 334 [LQ/SC/2014/1385] .

2. Respondent was employed in the Armed Forces and ultimately superannuated. He was thereafter appointed as Constable in U.P. Police on 17.10.1998. An order dated 30.9.2010 was passed fixing the pay scale of the respondent by including his services rendered in the Armed Forces. The benefit thus extended was allowed to the respondent and he attained the age of superannuation on 31.8.2020. It is thereafter that an order came to be passed on 13.8.2020, pursuant to the order of Assistant Accounts Officer, U.P. Police, Headquarters, Lucknow dated 23.6.2020, holding that the services rendered by the respondent in the Armed Forces could not have been counted towards fixation of pay scale of the respondent. The benefit so extended was, therefore, adjusted from the retiral dues admissible to him. Aggrieved by this order, the respondent filed the writ petition no.7718 of 2020.

3. Learned Single Judge has relied upon the ratio of law laid down by the Supreme Court in Rafiq Masih (supra) and directed the respondent not to deduct any amount from the retiral benefits of the respondent.

4. Learned State counsel in support of the present appeal submits that the past services rendered by the respondent in the Indian Army could not have been counted for fixation of pay scale admissible to the respondent.

5. So far as the counting of past services rendered in the Indian Army by the respondent is concerned, it is admitted to the counsel for the respondent that under the applicable rules such period could not have been included towards his working. What is, however, urged is that the benefits already extended could not have been denied to him.

6. We have heard learned counsel for the parties and have gone through the materials placed on record.

7. It is apparent that no misrepresentation or fraud on part of the respondent is attributed or established as being the cause for incorrect fixation of pay scale. The benefits were unilaterally extended to the respondent though they were not admissible. The question is as to whether such excess sum could be adjusted from the retiral dues of the respondent.

8. Law on the aspect has been considered by the Supreme Court in Rafiq Masih (supra) and Thomas Daniel vs State of Kerala & others 2022 SCC OnLine SC 536. Though the judgment in Rafiq Masih (supra) has been distinguished in High Court of Punjab & Haryana and others vs. Jagdev Singh (2016) 14 SCC 267 [LQ/SC/2016/968] but that judgment is clearly distinguishable, inasmuch as the respondent herein had not given any undertaking for such excess sum to be recovered from the respondent. The principles of law laid down in Rafiq Masih (supra) and Thomas Daniel (supra) are, therefore, clearly applicable in the facts of the present case.

9. We thus find ourselves in agreement with the view taken by the learned Single Judge vide judgment dated 22.11.2022, directing the appellant not to recover any amount from the retiral dues on account of wrong fixation of pay scale.

10. This intra-court appeal, consequently, fails and is, accordingly, dismissed.