Rajasthan High Court - Jodhpur
Ram Bharat Yadav vs The Secretary, (2024:Rj-Jd:24144) on 27 May, 2024
[2024:RJ-JD:24144]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 17819/2019
1. Ram Bharat Yadav S/o Shri Devaki Nandan Yadav, Aged
About 48 Years, By Caste Yadav, R/o D-4, Staff Colony, Mlv
Textile College, Bhilwara, District - Bhilwara (Rajasthan).
2. Satya Narayan Parashar S/o Shri Mohanlal Parashar, Aged
About 59 Years, By Caste Parashar, R/o Behind Balaji Temple,
Sanganeri Gate, Bhilwara (Rajasthan).
3. Ramesh Chandra Sen S/o Dhan Rajji, Aged About 50 Years,
By Caste Sen, R/o Bus Stand Pur, Bhilwara (Rajasthan).
4. Suresh Kumar Sharma S/o Bajrang Lal Sharma, Aged About
55 Years, R/o D - 8, Staff Colony, Mlv Textile College,
Bhilwara, District - Bhilwara (Rajasthan).
5. Dhananjay Sinha S/o Harendra Nath Sinha, Aged About 52
Years, R/o I-328, Bapu Nagar, Bhilwara (Rajasthan).
6. Durga Prasad Sharma S/o Ram Ratan Sharma, Aged About
55 Years, R/o Behind Old Kachar, Junavas, Bhilwara
(Rajasthan).
7. Nand Lal Jain S/o Roop Chand Jain, Aged About 55 Years, R/o
G-124, New Bapu Nagar, Bhilwara (Rajasthan).
8. Vijay Kumar Sharma S/o Kishan Chandra Sharma, Aged
About 59 Years, R/o D - 5 Staff Colony, Mlv Textile
Engineering College, Bhilwara (Rajasthan).
9. Rameshwar Lal Jat S/o Rang Lal Jat, Aged About 53 Years, R/
o D - 3 Staff Colony, Mlv Textile Engineering College, Bhilwara
(Rajasthan).
10. Dinesh Kumar Rathi S/o Janki Lal, Aged About 49 Years, R/o
23/544, New Housing Board Chauraha, Shastri Nagar,
Bhilwara (Rajasthan).
11. Kailash Chandra Sen S/o Jagdish Chandra Sen, Aged About
57 Years, R/o Near Kumbha Circle, Joganiya Misthan Ki Gali,
Bhilwara (Rajasthan).
12. Udai Lal Suthar S/o Devi Lal Suthar, Aged About 51 Years, R/
o Mukam Post Bada Mahua, District - Bhilwara (Rajasthan).
----Petitioners
Versus
1. The Secretary, Finance Department, Government Of
Rajasthan, Jaipur (Rajasthan).
2. The Joint Secretary, Finance Department (Budget),
Government Of Rajasthan, Jaipur (Rajasthan).
3. The Joint Secretary, Finance Department (Rules),
Government Of Rajasthan, Jaipur (Rajasthan).
4. The Secretary, Department Of Technical Education,
Government Of Rajasthan, Jaipur (Rajasthan).
5. The Principal, Mlv Textile And Engineering College, Bhilwara,
Pratap Nagar, Pur Road, Bhilwara (Rajasthan).
----Respondents
For Petitioner(s) : Mr. Rajendra Singh Rathore.
(Downloaded on 30/05/2024 at 08:56:59 PM)
[2024:RJ-JD:24144]
For Respondent(s) : Ms. Mehali Mehta for
Mr. Manish Patel, AAG.
HON'BLE MR. JUSTICE ARUN MONGA
Order
27/05/2024
1. Grievance of the petitioners herein inter alia stems out of
order dated 16.05.2019 (Annex.4), vide which, respondents have
initiated recovery against the petitioners.
2. Briefly speaking, relevant facts as pleaded in the petition are
that the petitioners were initially appointed on the posts of
Technicians (Class-III) in the MLV Textile & Engineering College,
Bhilwara on temporary basis. Subsequently, their services were
confirmed vide order dated 18.11.2009 (Annex.1). Further, MLV
textiles Institute also approved rules for promotion for technical
staff as notified by Engineering College Kota. On account of non-
availability of any promotional post, petitioners were given benefit
of ACP after completion of 9 years' service.
2.1 Thereafter, posts on which the petitioners were working,
were bifurcated. According to said bifurcation, petitioners were
eligible for pay-scale of 5000-150-8000 after completion of 9
years' service. However, petitioners who were working on a higher
grade pay, on account of bifurcation of said posts, their fixation
was made on a lower grade pay. Pursuant to that, vide impugned
order dated 16.05.2019 (Annex.4), the Joint Secretary Education
Department directed the Principal MLV Textile and Engineering
College to initiate recovery against the petitioners.
2.2 Aggrieved, the petitioners thereafter gave representation /
legal notice (Annex.6) to the Principal MLV Textile and Engineering
[2024:RJ-JD:24144]
College indicating that petitioners are receiving salary as per
norms and no benefit of wrong fixation was given to them.
However, no heed was paid by the respondents. Hence this
petition.
3. Defence taken in the reply is that excess amount in salary
paid to the petitioner was under bonafide error. It is settled
position of law that an excess amount which has been paid to
employee to which he is not legally entitled can always be
recovered. Hence, the writ petition be dismissed.
4. From the above, it thus clearly emerges that there is no
misrepresentation and/or concealment of any kind by overt or
covert act or omission on the part of the petitioner, which led to
according him higher pay than the one he deserved. The mistake
was concededly on the part of the department and the petitioner
did not mislead the department or contribute in any manner to
accord himself higher salary than he ought to have been paid. In
that context, reference may be had to State of Punjab &Ors. v.
Rafiq Masih (White Washer) & Ors. : (2015) 4 SCC 334
which subsequently followed in Thomas Daniel v. State of
Kerala & Ors. : 2022 SCC Online SC 536.
5. The case of petitioner is squarely covered by parameters as
enumerated in case of Rafiq Masih (supra), which are reproduced
hereinbelow:-
"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 hereinabove, we may, as a ready
reference, summarise the following few situations, wherein recoveries by the
employers, would be impermissible in law:
[2024:RJ-JD:24144]
(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."
6. A perusal of the above leaves no manner of doubt that the
case of the petitioner is squarely covered by judgment rendered in
Rafiq Masih, ibid.
7. It is not controverted either in the reply or otherwise that the
benefit sated to have been erroneously conferred to the petitioner
lasted for as long as 30 years. Being so, the period is clearly
more than 5 years, as mentioned in sub-clause (ii) of para 18 of
the judgment ibid. The mistake, if any, was concededly on the
part of the department. In view the ratio laid down in Rafiq Masih
(supra), the impugned order is not sustainable.
8. Accordingly, the impugned order dated 16.05.2019
(Annex.4) is set aside with consequences to follow. Recovery, if
any, made from the petitioners shall be refunded back to the
petitioners alongwith interest as per applicable Service Rules.
9. Pending application(s), if any, stand disposed of.
(ARUN MONGA),J
123-Sumit/-
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