Himachal Pradesh High Court
Kirpa Ram vs State Of H.P. & Ors on 1 May, 2025
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.6468 of 2024
Date of decision: 01.05.2025
Kirpa Ram. ...Petitioner.
Versus
State of H.P. & Ors. ...Respondents.
Coram:
Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?
For the petitioner : Mr. Sat Prakash, Advocate.
For the respondents : Mr. Sikander Bhushan, Deputy
Advocate General.
Jyotsna Rewal Dua, Judge
Petitioner is aggrieved against the recovery of an
amount ordered against him by the respondents on account
of alleged excess payment made to him w.e.f. 27.08.2009 to
31.12.2015 and w.e.f. 01.01.2016 to 31.12.2021.
2. Heard learned counsel for the parties and
considered the case file.
2(i). The State of Himachal Pradesh formulated a
scheme on 30.08.1997 re-designating all the skilled and
semi-skilled categories as Junior Technicians. Total 29
categories of skilled workers were re-designated as Junior
Technician. The petitioner was serving as Mason, Grade-II, a
Class-III employee. His category was also one of the
1Whether reporters of Local Papers may be allowed to see the judgment? Yes
categories which was clubbed and re-designated as Junior
Technician (Mechanic-cum-Fitter Grade-II).
2(ii). The State of Himachal Pradesh on 01.09.1998
granted 3-tier payscale to the category of Junior Technician
in the ratio of 20:30:50 under Assured Career Progression
Scheme ('ACP Scheme') for eliminating stagnation in career
progression. Vide office order dated 02.04.2014, benefit of
Rs.2400/- was granted to the petitioner on his placement as
Technician Grade-II (Mechanic-cum-Fitter). This was
pursuant to approval conveyed by the higher authorities on
07.03.2014. On that basis, the petitioner was also granted
benefit of ACP Scheme on completion of 4 & 9 years of
service w.e.f. 27.08.2009 and 01.01.2014, respectively. The
benefits were granted to the petitioner on notional basis
w.e.f. 27.08.2009 and on actual basis w.e.f. 09.08.2012 vide
office order dated 07.03.2014.
2(iii). It appears that vide office letter dated 31.12.2021
the proficiency benefit earlier granted to the petitioner under
office order dated 02.04.2014 was withdrawn. His pay was
regulated and re-fixed under office order dated 24.03.2022.
This was done in view of clarification letter dated 29.05.2014
that category of Technician is not entitled for the benefit of
ACP Scheme.
The petitioner had enjoyed the benefits of 4-9-14
years under the ACP Scheme, accordingly, the respondents
subsequent to re-fixation of petitioner's pay worked out an
amount of Rs.1,98,715/- recoverable from the petitioner as
excess paid to him for the period 27.08.2009 to 31.12.2015
and also for the period of 01.01.2016 to 31.12.2021
(Annexure P-1). Out of above amount, an amount of
Rs.35,000/- has been recovered from the petitioner.
Recovery of remaining amount Rs.1,63,715/- had been
stayed pursuant to interim order passed in this petition on
10.07.2024.
3. Hon'ble Apex Court in State of Punjab and Ors.
vs. Rafiq Masih (White Washer) and Ors. 1 has held that
recovery by the employer from the employees belonging to
Class-III and Class-IV services, where payments have
mistakenly been made by the employer in excess of their
entitlement, would be impermissible.
A Division Bench of this Court relying upon the
aforesaid judgment and on consideration of several other
(2015) 4 SCC 334 (2)
precedents in the timeline including Chandi Prasad Uniyal
& Ors. Vs. State of Uttarakhand & Ors.2 has held as
under in CWPOA No.145 of 2019 (S.S. Chaudhary Vs.
State of H.P. and Other and connected matters), decided
on 24.03.2022:-
"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
(2012) 8 SCC 417
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
channelized and inflexible gudielines 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."
In Jogeswar Sahoo & Ors. vs. The District
Judge, Cuttack & Ors.3 Hon'ble Apex Court held that
excess payment made to an employee cannot be recovered, if
such payment was not on account of any fraud or
misrepresentation on the part of the employee. Also, excess
payment to the employee due to any wrong application of the
rule or incorrect calculation on the part of the employer is
not recoverable.
4. The ratio for the aforesaid decision is applicable
to the case of the petitioner. Admittedly, it was not for
petitioner's fault or misrepresentation that respondents had
granted him benefit of higher pay scale. The petitioner had
SLP(C) No(s). 5918/2024 decided on 04.04.2024
continued to receive the benefit w.e.f. the year 2014 onwards
till 2022. Petitioner is a Class-III employee left with one
month to superannuate. In the given facts and
circumstances, the respondents cannot be permitted to
recover alleged overpayment from the petitioner at the fag
end of his service career. This recovery would otherwise be
very harsh upon him. This writ petition is therefore allowed.
Recovery ordered by the respondents vide Annexure P-1 is
quashed and set aside. Respondents are directed to release
the recovered amount of Rs.35,000/- to the petitioner within
four weeks from today, failing which the amount shall carry
interest @ 5% per annum from the date of filing the petition.
Pending miscellaneous application(s), if any, to
also stand disposed of.
Jyotsna Rewal Dua
1st May, 2025 Judge
(Pardeep)
