Orissa High Court
Union Of India And vs Bharat Chandra Nayak .... Opp. Party on 17 September, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.43196 of 2023
Union of India and
others .... Petitioners
Mr. Dipti Ranjan Bhokta,
Central Govt. Counsel
-versus-
Bharat Chandra Nayak .... Opp. Party
CORAM:
THE HON'BLE MR. JUSTICE S.K. SAHOO
THE HON'BLE MR. JUSTICE SIBO SANKAR MISHRA
ORDER
Order No. 17.09.2025
02. This matter is taken up through Hybrid
arrangement (video conferencing/physical mode).
Heard Mr. D.R. Bhokta, learned Central
Government Counsel appearing for the petitioner.
The petitioners have filed this writ petition
challenging the order dated 15.09.2023 passed by the
learned Central Administrative Tribunal, Cuttack Bench,
Cuttack in O.A. No.130 of 2022 thereby quashing the
order of recovery dated 22.11.2021.
In the aforesaid Original Application, the present
Opposite Party Bharat Chandra Nayak has prayed, inter
Signed by: RAJESH KUMAR BADHEI
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA,
Order No.36/22/2017-Estt./829 dated 22.11.2021 in his
CUTTACK
Date: 18-Sep-2025 18:08:58
respect and consequently, to issue direction to the
respondents therein (petitioners herein) to refund the
amount with interest which has already been recovered
from the petitioner and further to grant the differential
salary for the period from 26.03.2018 to 11.06.2019,
i.e., during the period in which the petitioner was illegally
reverted.
Learned Tribunal after hearing learned counsel for
both the parties passed the order holding as follows :-
"13. It is not the case of the respondents
that the applicant had obtained the
promotion due to mistake on his part or
withholding of any information. If employee
is appointed to officiate on a higher rank
involving assumption of duties and
responsibilities of greater importance than
those of substantive post, then he is entitled
on the salary of officiating post. The
applicant had worked in the said post after
being given promotion and therefore he is
eligible to get the pay for the said post and
the recovery of the same is illegal. The
citations relied on by the learned counsel for
the respondents are not applicable to the
facts and circumstances of the present case
since the case of Debendra Sharma (supra)
relied on by respondents is about claiming
salary on the basis of forged letter of
appointment. The case of Sanjay K Sinha
(supra) relied on by the respondents is also
distinct since it was about creation of posts
and appointment therein. In the instant
case, the respondents wrongly calculated the
vacancies and gave appointment and
subsequently revered which they corrected
after the order of this Tribunal dated
17.10.2019.
14. In view of the discussions above, the
order of recovery dated 22.11.2021 (A/8) is
quashed. Resultantly the respondents are
directed to refund any amount recovered
from the applicant within a period of 60
days. However the prayer of the applicant
for grant of differential salary or the period
from 26.03.2018 to 11.06.2019 is not
accepted since the applicant had not
performed the duties and responsibilities of
the higher post of SI Gr. II during that
period."
Mr. D.R. Bhokta, learned Central Government
Counsel appearing for the petitioners urged that O.A.
Nos.650 & 651 of 2017, O.A. Nos.169, 170. 171, 172 &
177 of 2018 were heard analogously and a common
order was passed, so far as O.A. Nos.650 & 651 of 2017,
but so far as the petitioners' case, i.e., O.A. No.169 of
2018 is concerned, a separate order was passed and in
O.A. Nos.650 & 651 of 2017, a specific order was passed
by the learned Tribunal that the petitioners would be at
liberty to pass appropriate order to withdraw or disallow
any service benefit that would have accrued to the
applicants because of the interim order dated 07.12.2017
after following due process of law and in view of such
order passed by the learned Tribunal in O.A. Nos.650 &
651 of 2017, steps have been taken against the opposite
parties for recovery of the amount already paid as per
the order of recovery dated 22.11.2021.
After hearing learned counsel for the petitioners
and going through the order passed by the learned
Tribunal in O.A. Nos.650 & 651 of 2017, we found that
the present Opposite Party Bharat Chandra Nayak was
not an applicant in the two Original Applications and in
view of the specific order passed by the learned Tribunal
in those two Original Applications, which were disposed
of by a common order that the petitioners would be at
liberty to pass appropriate order to withdraw any benefit
would not be applicable for the opposite party as in the
case of the opposite party whose Original Application is
O.A. No.169 of 2018, which was disposed of along with
O.A. Nos.170, 171, 172 & 177 of 2018 by a common
order dated 17.10.2019, no such liberty was granted to
the petitioners for recovery of any service benefits, which
have already been given to the opposite party.
Learned counsel for the Opposite Party has relied
upon the decision of the Hon'ble Supreme Court in the
case of State of Punjab -Vrs.- Rafiq Masih reported
in (2015) 4 Supreme Court Cases 334, wherein it is
held as follows:
"6. In view of the conclusions extracted
hereinabove, it will be our endeavour, to lay
down the parameters of fact situations,
wherein employees, who are beneficiaries of
wrongful monetary gains at the hands of the
employer, may not be compelled to refund
the same. In our considered view, the
instant benefit cannot extend to an
employee merely on account of the fact, that
he was not an accessory to the mistake
committed by the employer; or merely
because the employee did not furnish any
factually incorrect information, on the basis
whereof the employer committed the
mistake of paying the employee more than
what was rightfully due to him; or for that
matter, merely because the excessive
payment was made to the employee, in
absence of any fraud or misrepresentation at
the behest of the employee."
After going through the ratio laid down by the
Hon'ble Supreme Court and the findings of the learned
Tribunal, we are of the view that when the Opposite Party
has been appointed to officiate on a higher rank involving
assumption of duties and responsibilities of greater
importance than those of substantive post and when he
had not obtained promotion due to mistake on his part or
withholding any information from the petitioners and he
has already received the amount, then the learned
Tribunal was justified in holding that the recovery would
be illegal. We are also of the view that the learned
Tribunal is quite justified in differentiating the judgments
of the Hon'ble Supreme Court, relied upon by the
petitioners, in the cases of State of Bihar -Vrs.-
Devendra Sharma reported in (2020) 15 Supreme
Court Cases 466 and Sanjay K. Sinha-II -Vrs.- State
of Bihar reported in (2004) 10 Supreme Court
Cases 734 wherein the factual aspects were quite
different than that of the case in hand. Therefore, the
learned Tribunal is justified in quashing the order of
recovery dated 22.11.2021, which was passed against
the opposite party.
In view of the foregoing discussions, we find that
there is no infirmity or illegality in the impugned order
passed by the learned Central Administrative Tribunal,
Cuttack Bench.
Accordingly, the writ petition being devoid of merits
stands dismissed.
( S.K. Sahoo)
Judge
( S.S. Mishra)
Judge
Rajesh
