Chattisgarh High Court
Atmaram Jaiswal vs State Of Chhattisgarh on 2 January, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:149
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 3743 of 2015
Atmaram Jaiswal S/o Late Kali Ram Jaiswal, Aged About 47 Years Working As
Lecturer, Govt. Higher Secondary School, Amera, District- Baloda Bazar-
Bhatapara, Chhattisgarh.
-- Petitioner
versus
1- State of Chhattisgarh, Through Secretary, Education Department, Mantralaya,
P.S. Rakhi, Tahsil- Aarang, Naya Raipur, District Raipur, Chhattisgarh.
2- Commissioner, Director Public Instructions, Raipur, District- Raipur, Chhattisgarh.
3- Joint Director, Accounts Treasury And Pension, Raipur, District Raipur,
Chhattisgarh.
-- Respondents
For Petitioner : Mr. C. Jayant. K. Rao, Advocate.
For Respondents/State : Mr. Devesh G. Kela, PL.
Hon'ble Smt. Justice Rajani Dubey
Order on Board
02.01.2025
1. The petitioner has filed the present writ petition seeking the following
reliefs:-
"10.1. That this Hon'ble Court pleased to issue a writ in
the nature of mandamus setting aside the remarks
made by respondent No. 3 in the service book of the
petitioner (Annexure P/3).
10.2. That the Hon'ble Court may kindly be pleased to
grant any other relief as it may deems fit and
appropriate.
2. The case of the petitioner in brief is that he was appointed on
02.03.1987 on the post of Assistant Teacher with a regular pay scale.
However, respondent No. 3 in an illegal and arbitrary manner on
16.09.2014 made entry in the service book of the petitioner that he is
entitled for regular pay scale from the year 03.03.1988 and accordingly
crossed the actual date of 03.03.1987, from which, he is getting the
regular pay scale and made entry in the service book to recover the
excess payment made to the petitioner from 03.03.1988 to 23.02.1996.
3. Learned counsel for the petitioner submits that the petitioner is legally
entitled for the regular pay scale from the very date of his appointment,
as he was appointed on compassionate basis on 02.03.1987 and from
the very date of his appointment, he is getting the regular pay scale.
He submits that before making the above entry in the service book of
the petitioner, no opportunity of hearing was afforded to the petitioner,
who is a Class-III employee. Therefore, the impugned remarks made
by respondent No. 3 in the service book of the petitioner are liable to
be set aside.
Reliance has been placed on the judgment of Supreme Court in the
matter of State of Punjab vs. Rafiq Masih (White Washer) and
others, reported in (2015) 4 SCC 334.
4. On the other hand, learned counsel for the State would oppose the
submissions made by counsel for the petitioner and submits that office
of Joint Director/Respondent No. 3 raised objection that the petitioner
is entitled for regular pay scale from 03.03.1988 in place of 03.03.1987,
from the date he was getting the regular pay scale and due to wrong
fixation excess payment was paid to the petitioner, which is
recoverable from his salary. Therefore, the present petition lacks any
substance and is liable to be dismissed.
5. I have heard learned counsel for the respective parties and perused
the material available on record.
6. It is not disputed that petitioner was appointed on compassionate basis
on the post of Assistant Teacher on 02.03.1987. It is also not disputed
that as per service book (Annexure P/3), on 16.09.2014 entry was
made in his service book to recover the excess payment amount.
7. It is vivid that the entry was made in the petitioner's service book after
18 years and it is clear that as per this entry the excess payment shall
be recovered from the petitioner from 03.03.1988 to 23.02.1996.
8. It is also quite vivid that respondents did not file any recovery order or
any order of competent authority, which shows that on what ground this
entry was made in service book of the petitioner.
9. The Hon'ble Supreme Court while dealing with the similar issue in the
Rafiq Masih (supra) in para 18 held as under.
" 18. 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."
10. Looking to the facts of the present case and the law laid down by the
Hon'ble Apex Court, the order of recovery issued by respondents
against the petitioner in service book of the petitioner is hereby
quashed and the amount, if any, recovered from the petitioner shall be
refunded forthwith.
11. With the aforesaid observations, this petition is disposed of.
Sd/-
Digitally signed (Rajani Dubey)
by AMIT PATEL
JUDGE
Date:
2025.01.06
04:45:57 +0530
AMIT PATEL
