Chattisgarh High Court
Dileram Kathe vs State Of Chhattisgarh on 22 July, 2025
1
2025:CGHC:34860
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
SMT
NIRMALA
RAO WPS No. 1399 of 2021
1 - Dileram Kathe S/o Shri Kartikram Kathe, Aged About 62 Years Retd.
Headmaster, Govt. Primary School, Mehandi, Block Pamgarh, District Janjgir
Champa (Chhattisgarh) R/o Cheudih, Post Meu, Via Pamgarh, District Janjgir
Champa Chhattisgarh., District : Janjgir-Champa, Chhattisgarh
... Petitioner(s)
versus
1 - State Of Chhattisgarh Through The Secretary, School Education
Department, Mahanadi Bhavan, Mantralaya, Atal Nagar, Raipur, District
Raipur Chhattisgarh, District : Raipur, Chhattisgarh
2 - Accountant General Raipur, District Raipur Chhattisgarh, District : Raipur,
Chhattisgarh
3 - Joint Director, Treasury, Account And Pension, Bilaspur, District Bilaspur
Chhattisgarh., District : Bilaspur, Chhattisgarh
4 - District Education Officer, Janjgir, District Janjgir Champa Chhattisgarh,
District : Janjgir-Champa, Chhattisgarh
5 - Block Education Officer, Pamgarh, District Janjgir Champa Chhattisgarh.,
District : Janjgir-Champa, Chhattisgarh
... Respondent(s)
For Petitioner : Mr. S.K.Kushawaha, Advocate.
For State/Respondents : Mr. Raj Kumar Gupta, Addl. A.G.
For Respondent No.2 : Mr. Ashwani Shukla, Advocate
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
22.07.2025
1. Challenge in this petition is to the order of recovery of Rs.1,10,394/-,
which has been issued vide order dated 6.9.2020 after the retirement
of the petitioner. It is not in dispute that the petitioner retired after
rendering services as a Headmaster, Government Primary School on
31.08.2020. It is contended that the petitioner was served with a notice
on 6.9.2020 to deposit the amount of excess payment to finalise his
pension case. The petitioner contends that the said recovery was made
by way of an arm-twisting method. Consequently, the petitioner
deposited the amount mentioned in the recovery notice Rs.1,10,394/-
so that his pension case may finalize. Learned counsel for the
petitioner would also submit that the issue involved in the present case
is squarely covered with the law laid down by Hon'ble Supreme Court
in the matter of State of Punjab & Others Vs. Rafiq Masih (White
Washer) & Others reported in 2015 (4) SCC 334. It is contended that
the petitioner held the post of Headmaster, Govt. Primary School, a
Class-III post; therefore, as per the law laid down, the recovery from
the petitioner is bad in law.
2. Learned State counsel would submit that the recovery is based on the
background of the excess payment made to the petitioner at the time of
the revision of the pay scale. The reference has been made to the
undertaking given by the petitioner. It is also contended that the excess
payment has been adjusted pursuant to the undertaking given by the
petitioner. It is argued that as per the law laid down in case of High
Court of Punjab & Haryana and Others v. Jagdev Singh reported in
AIR 2016 SC 3523, the undertaking having been given, the State is
within its right to recover the amount of excess payment.
3. I have heard learned counsel for the parties and perused the
documents present on record.
4. It is not in dispute that the petitioner was a Class-III government
servant, as he was the Headmaster in the Primary School. It is also not
in dispute that the order of recovery has been made after retirement. In
the case of Rafiq Masih (supra), the Supreme Court in para 18 has
laid down the following guidelines. For the sake of relevance, para 18
is reproduced hereunder:-
"18. 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
hereinabove, we may, as a ready reference,
summarise the following few situations, wherein
recoveries by the employers, would be impermissible
in law :
(i) Recovery from the employees belonging to
Class III and Class IV service (or Group C and Group
D service).
(ii) Recovery from the retired employees, or the
employees who are due to retire within one year, of the
order of recovery.
(iii) Recovery from the 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.
5. The reliance placed by the State in the case of High Court of Punjab
& Haryana v. Jagdev Singh, (2016) 14 SCC 267, would show that in
such a case, the Supreme Court permitted the recovery to be made on
the basis of the undertaking given earlier. In the said case, the
respondent was appointed as a Civil Judge and the Rules governing
the service were, namely the Haryana Civil Service (Judicial Branch)
and Haryana Superior Judicial Service Revised Pay Rules, 2001.
Under those Rules, every 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. There was such a mandatory provision in
the Rules themselves. The Supreme Court while deciding the said
case emphatically referred to the service rules and held that the
undertaking given in such circumstances would be executable and
observed that the ratio of State of Punjab & Ors. v. Rafiq Masih
(supra) cannot be applied uniformly.
6. In the instant case, as per Annexure P-3, the recovery has been made
for the period from 1.1.2006 till 01.07.2020. The undertaking was given
at a belated stage by the petitioner. It is pertinent to mention here that
in the Chhattisgarh Revision of Pay Rules, there is no provision for
undertaking. Therefore, the ratio of judgment of Jagdev Singh (supra)
would not attract.
7. Therefore, the ratio of judgment rendered in the case of State of
Punjab & Ors. v. Rafiq Masih (supra) would be applicable.
8. The facts further would show that the petitioner was required to deposit
an amount of Rs.1,10,394/- after his retirement. The petitioner was
superannuated on 31.08.2020 and as per the averments, the said
deposit was required to be made by 3.7.2020 in the Treasury, which
was done by the petitioner under protest. Therefore, the deposit under
such duress by the petitioner lies on the dark side of both illegality and
humanitarian principles. Consequently, it would be against the public
policy and contrary to the fundamental rights and the directive
principles enshrined in the Constitution. Accordingly, it cannot be
legalized or insulated.
9. As a result, the order of recovery dated 6.9.2020 issued by respondent
No.5 is hereby quashed. It is directed that the amount of Rs.1,10,394/-
deposited by the petitioner shall be refunded to him by the State within
a period of 60 days with interest of 6% per annum.
10. In view of the above, the petition is allowed to the above extent.
Sd/-
(Rakesh Mohan Pandey)
Judge
Nimmi
