Himachal Pradesh High Court

Sarita Kumari vs State Of Himachal Pradesh And ... on 13 October, 2023

Bench: Sandeep Sharma

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWP No. 5569 of 2023 with
CWP No. 5904, 5905, 5571, 6138, 5565, 5583, 5585, 5586, 5589,
5669, 5992 and 5991 of 2023
Decided on: October 13, 2023

.
________________________________________________________

1. CWP No. 5569 of 2023
Sarita Kumari .. Petitioner
Versus
State of Himachal Pradesh and others Respondents

2. CWP No. 5904 of 2023
Chander Kiran .. Petitioner
Versus
State of Himachal Pradesh and others Respondents

3. CWP No. 5905 of 2023
Hem Raj .. Petitioner
Versus
State of Himachal Pradesh and others Respondents

CWP No. 5571 of 2023

Sujata Sood .. Petitioner
Versus
State of Himachal Pradesh and others Respondents

5. CWP No. 6138 of 2023

Savita Sharma .. Petitioner
Versus
State of Himachal Pradesh and others Respondents

6. CWP No. 5565 of 2023
Rajinder Kumar .. Petitioner
Versus

State of Himachal Pradesh and others Respondents

7. CWP No. 5583 of 2023

Chaman Lal .. Petitioner
Versus
State of Himachal Pradesh and others Respondents

8. CWP No. 5585 of 2023
Sonki Ram .. Petitioner
Versus
State of Himachal Pradesh and others Respondents

9. CWP No. 5586 of 2023
Narotam Chand .. Petitioner
Versus
State of Himachal Pradesh and others Respondents

::: Downloaded on - 17/10/2023 20:40:53 :::CIS
2

10. CWP No. 5589 of 2023
Jaram Singh .. Petitioner
Versus
State of Himachal Pradesh and others Respondents

.
11. CWP No. 5669 of 2023

Rajender Prasad .. Petitioner
Versus
State of Himachal Pradesh and others Respondents

12. CWP No. 5992 of 2023
Chitbatan Singh .. Petitioner
Versus
State of Himachal Pradesh and others Respondents

13. CWP No. 5991 of 2023

Ravi Kumar .. Petitioner
Versus
State of Himachal Pradesh and others Respondents

________________________________________________________
Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1

For the Petitioners : Mr. Prashant Sharma and Mr.
Naresh Kaul, Advocates, for the

petitioners in respective petitions.

For the respondents :
Mr. Anoop Rattan, Advocate General
with Mr. Rajan Kahol, Mr. Vishal

Panwar and Mr. B.C. Verma,
Additional Advocates General & Mr.
Ravi Chauhan & Ms. Sunaina,

Deputy Advocates General.
Mr. Chitranjan Kumar Sharma,
Advocate, for Accountant General,

Himachal Pradesh in CWP Nos.
5991-5992 of 2023.
________________________________________________________
Sandeep Sharma, Judge (oral):

Since common questions of law and facts are involved in these

petitions, the same were taken up together and are being disposed of

Whether the reporters of the local papers may be allowed to see the judgment?

by this common order, praying therein for following main relief(s), which

are similar in all the petitions:

"i) That office order dated 20/03/2023 (Annexure P-5), may kindly be quashed and set aside.

.

ii) That the respondents may be directed not to make any

recovery from the pay of the petitioner pursuant to communication dated 20/03/2023 (Annexure P-5).

iii) That the respondents be directed to count the Adhoc service period of the petitioner towards regular service for all intent and purposes."

2. Though, in all the above captioned cases, time was granted to

the respondents to file reply but today during proceedings of the case,

Mr. Rajan Kahol, learned Additional Advocate General placed on

record instructions dated 12.10.2023 issued by Director Elementary

Education, to fairly state that the cases of the petitioners are squarely

covered by judgment rendered in Madan Lal and others v. State of

H.P. and another, CWPOA No. 7531 of 2019, decided on 30.12.2022

and respondents have decided to grant similar benefits to the

petitioners herein also.

3. Having perused aforesaid commutation, which is taken on

record, this court finds that the issue raised in the petitions at hand is

squarely covered by Madan Lal supra and though said judgment was

laid challenge by way of LPA, but same stands dismissed and now

respondents have decided to extend the benefits in question vide letter

dated 16.9.2023, which is also on record, as a result whereof,

petitioners have become entitled to the reliefs as have been granted in

Madan Lal.

4. So far second issue regarding recovery made/being made from

the petitioners is concerned, recently, Division Bench of this court, in

CWPOA No. 3145 of 2019, titled S.S. Chaudhary v. State of H.P. &

Others, decided on 24.3.2022, having taken note of various judgments

passed by Hon'ble Apex Court including in State of Punjab and

others v. Rafiq Masih, (2015) 4 SCC 334, laid down certain situations,

wherein recovery would be impermissible from the employees. It would

be apt to take note of following para of S.S. Chaudhary supra:

"35. In view of the aforesaid discussion, as held by Hon'ble Supreme

Court in Rafiq Masih's case (supra), it is not possible to postulate all situations of hardship, where payments have mistakenly been made by the employer, yet in the following situations, 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.

(vi) Recovery on the basis of undertaking from the employees essentially has to be confined to Class I/Group-A and Class-

II/Group-B, but even then, the Court may be required to see whether the recovery would be iniquitous, harsh or arbitrary to such an extent, as would far overweigh the equitable balance of the employer's right to recover.

(vii) Recovery from the employees belonging to Class-III and Class-IV even on the basis of undertaking is impermissible.

(viii) The aforesaid categories of cases are by way of illustration and it may not be possible to lay down any precise, clearly defined, sufficiently channelised and inflexible guidelines or rigid formula and to give any exhaustive list of myriad kinds of cases. Therefore, each of such cases would be required to be decided on its own merit."

5. In the aforesaid judgment Division Bench has clarified that

recovery on the basis of undertaking from employees, essentially is to

be confined to Class I and II employees (Group A and B) meaning

thereby recovery is otherwise totally impermissible from Class III and

IV employees. In the aforesaid case, Division Bench has decided that

recovery though is permissible from employees of Class I and II (Group

A and B) on account of undertaking but in case court comes to

conclusion that same is iniquitous, harsh and arbitrary, it may

intervene.

Hon'ble Apex Court in Thomas Daniel v. State of Kerala

reported in [2022 SCC Online SC 536], taking note of Rafiq Masih,

held the recovery from employees therein to be bad as the same was

not due to any mis-representation or fraud by them, rather was the

result of misinterpretation of the service rules and came to the notice of

the employer on being pointed out by the office of Accountant General.

Hon'ble Apex Court held as under:

"(14) Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by

the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala

Service Rules which was subsequently pointed out by the Accountant General.".

7. Since in the cases at hand, all the petitioners are Class III

employees and recovery is sought to be effected from the petitioner, of

amount which was started to be paid to the petitioners with effect from

1.1.1996, hence, this court is justified in exercising power under Art.

226 of the Constitution of India to interfere.

8. Consequently in view of fair stand adopted by respondent state,

it is directed that the directions contained in Madan Lal, supra, shall

apply to the case of the petitioners, mutatis mutandis, so far extension

of benefit in terms thereof is concerned. So far recovery part is

concerned, the respondents are directed not to make any recovery

from the respondents and recovered amount, if any, shall be refunded

to the petitioners within six weeks, failing which the petitioners shall be