Dhanna Ram Sankhla vs State And Ors
2022 Latest Caselaw 14574 Raj

(1 of 3) [CW-7542/2018]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 7542/2018

Dhanna Ram Sankhla S/o Late Shri Bhanwar Lal Sankhla, aged about 59 years, Resident Of Bhanwrani Ki Haweli, Brahmano Ki Gali, Ummed Chowk, Jodhpur.

----Petitioner Versus

1. That State Of Rajasthan Through The Secretary, Department Of Education, Government Of Rajasthan, Jaipur.

2. The Director, Elementary Education, Bikaner.

3. The Dy. Director, Elementary Education, Jodhpur.

4. The District Education, Elementary Education, Jodhpur.

5. The Additional District Education Officer Cum Block Elementary Education Officer, Panchayat Samiti, Mandore, District Jodhpur.

                                                                   ----Respondents


For Petitioner(s)           :     Mr. Sushil Solanki &
                                  Mr. Bhakti Singh
For Respondent(s)           :     Mr. K.K. Bissa

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

12/12/2022

Heard learned counsel for the parties.

The present writ petition has been filed against the order

dated 20/04/2018 passed by the respondent-Department,

whereby recovery amounting to Rs.1,22,950/- has been ordered

to be effected from the petitioner.

The prayer No.2 relating to grant of 3% of the regular pay

band as per Circular dated 12/10/2012 is not pressed by learned

counsel for the petitioner.

                                             (2 of 3)                   [CW-7542/2018]



      Learned     counsel     for     the     petitioner          submits   that   the

petitioner,   while   working       in    the     respondent-Department            on

completion of 27 years of service, was granted a grade pay of

Rs.4200/- and he was granted the amount due to him month by

month thereafter. Learned counsel for the petitioner submits that

all of a sudden after six years i.e. in the year 2018, an order has

been passed for recovery of sum from the petitioner. He submits

that since the petitioner has not misrepresented any fact before

the respondents, therefore, no recovery can be effected in view of

the judgment of Hon'ble Supreme Court in the case of State of

Punjab & Ors. vs. Rafiq Masih (White Washer) & Ors,

2015(4) SCC 334, wherein the Hon'ble Supreme Court has held

as under :-

"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 herein above, 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 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."

Learned counsel for the petitioner submits that this Court

vide order dated 29/05/2018 stayed the recovery from the

(3 of 3) [CW-7542/2018]

petitioner. He, therefore, prays that the writ petition may kindly be

allowed and the recovery orders dated 20/04/2018 & 23/05/2018

(Annex.3 & 4) may be quashed and set aside.

Learned counsel for the respondents is not in a position to

refute the submission of learned counsel for the petitioner

particularly in view of the judgment of the Hon'ble Supreme Court

in the case of Rafiq Masih (supra).

Considering the submissions made at the Bar and taking

note of the clear directions given by the Hon'ble Supreme Court in

the case of Rafiq Masih (supra), the case of the petitioner falls

squarely in the category of (i) & (ii) above and, therefore, no

recovery from the petitioner is permissible under the law.

In view of the discussions made above, the writ petition

merits acceptance and the same is allowed. The order of recovery

dated 20/04/2018 (Annex.3) is quashed and set aside.

It is made clear that whatever amount due to the petitioner

which has been withheld at the time of superannuation shall be

refunded to him within a period of eight weeks from today. If the

said amount is not paid within a period of eight weeks, then the

petitioner will be entitled to get interest @ 6% per annum on that

amount.

(VINIT KUMAR MATHUR),J 56-SanjayS/-

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