Rajasthan High Court - Jodhpur
Purna Shanker Sharma vs The Secretary, (2024:Rj-Jd:40745) on 1 October, 2024
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
[2024:RJ-JD:40745]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 18683/2019
Purna Shanker Sharma S/o Sh. Ram Chandra Sharma, Aged
About 55 Years, Resident Of Danthal, Tehsil And District Bhilwara
(Raj.) At Present Posted At Computer Cum Data Entry Operator,
M.l.v. Textile And Engineering College, Pur Road, Bhilwara
(Rajasthan).
----Petitioner
Versus
1. The Secretary, Finance Department (Budget),
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 & Engineering College,
Bhilwara, Pratap Nagar, Pur Road, Bhilwara (Rajasthan).
----Respondents
For Petitioner(s) : Mr. Dinesh Choudhary
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Order
01/10/2024
1. Grievance of the petitioner herein inter alia stems out of order
dated 16.05.2019 (Annex.4), vide which, respondents have
initiated recovery against the petitioner.
2. Briefly speaking, relevant facts as pleaded in the petition are
that the petitioner was initially appointed on the post of
Computer-cum-Data Entry Operator in the MLV Textile &
Engineering College, Bhilwara on temporary basis. Subsequently,
[2024:RJ-JD:40745] (2 of 4) [CW-18683/2019]
his services were confirmed in the year 1993. 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 petitioner was working, were
bifurcated. According to said bifurcation, petitioner was eligible for
pay-scale of 5000-150-8000 after completion of 9 years' service.
However, petitioner who was working on a higher grade pay, on
account of bifurcation of said posts, his 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 petitioner.
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
[2024:RJ-JD:40745] (3 of 4) [CW-18683/2019]
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:
(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
[2024:RJ-JD:40745] (4 of 4) [CW-18683/2019]
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.
(VINIT KUMAR MATHUR),J
436-/Arun Pandey/-
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