Ramesh Thakur vs The State Of Bihar And Ors
2022 Latest Caselaw 3663 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No 17248 of 2018
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Ramesh Thakur S/o Late Bhup Narain Thakur, Resident of Village- Kharagpur, P.S.- Desari, District- Vaishali.

... ... Petitioner/s

Versus

1. The State Of Bihar through the Principal Secretary, Department of Finance, Government of Bihar, Patna

2. The Additional Secretary, Department of Water Resources, Government of Bihar, Patna.

3. The Engineer-in-Chief (Headquarter), Department of Water Resources, Bihar, Patna.

4. The Accountant General (A and E), Bihar, Patna.

5. The Treasury Officer, Secretariat Treasury, Sichai Bhawan, Bailey Road, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr Suneil Kumar Thakur, Advocate

For the S t a t e : Mr Anjani Kumar, AC to AAG IV

For Accountant General : Mr Arun Kumar Arun, Advocate

====================================================== CORAM: HONOURABLE MR JUSTICE MADHURESH PRASAD

ORAL JUDGMENT

Date : 11-07-2022

Heard learned counsel for the petitioner and the

respondents.

2 The petitioner was granted scale of Rs 5,500 - 9,000/-

with effect from 20.12.2000 as benefit of first Assured Career Patna High Court CWJC No.17248 of 2018 dt.11-07-2022

Progression (for brevity, ACP). The same is sought to be

withdrawn by the impugned Office Order dated 10.07.2018 by

assigning a reason that in view of the Finance Department Circular

dated 04.08.2016 bearing Memo No 6200, the petitioner's

entitlement has been modified and instead of the pay scale of Rs

5,500 - 9,000/-, he has been placed in the pay scale of Rs 4,500 -

7,000/- with effect from 20.12.2000. The impugned office order

also directs for recovery of the financial benefits which now

appear to be excess in view of the refixation.

3 The petitioner is a Clerk and reliance is placed on a

decision in the case of State of Punjab & Others -Versus- Rafiq

Masih (White Washer) & Others, since reported in (2015) 4

Supreme Court Cases 334 wherein the Apex Court has postulated

all situations of hardship which would govern employees on the

issue of recovery where payments have mistakenly been made by

the employer and sought to be rectified after a long time.

4 In the instant case, the ACP, granted to the petitioner

with effect from 20.12.2000, is sought to be recovered 18 years

later, as if all along the petitioner has kept the said amount aside

waiting for the authorities to realize that excess was paid, and

thereafter proceed to recover the same. The facts are glaring and if

recovery is permitted, the same would cause severe hardship to the Patna High Court CWJC No.17248 of 2018 dt.11-07-2022

petitioner, in light of the decision in the case of Rafiq Masih

(White Washer) (supra). The Apex Court has laid down that

recovery would be impermissible in certain circumstances of

hardship, which read as follows:

"(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 This Court is inclined to set aside the Office Order

dated 10.07.2018, in so far as it directs recovery from the

petitioner. To that limited extent, the Office Order dated

10.07.2018 is quashed.

Patna High Court CWJC No.17248 of 2018 dt.11-07-2022

6 The petitioner shall not be subjected to recovery on

account of the Office Order dated 10.07.2018.

7 However, for the purposes of fixation, the same shall

stand.

8 Writ petition stands allowed.

(Madhuresh Prasad, J) M.E.H./-

AFR/NAFR                  NAFR
CAV DATE                    NA
Uploading Date          20.07.2022
Transmission Date           NA