Samaresh Das vs The State Of Tripura
2025 Latest Caselaw 277 Tri

Tripura High Court

Samaresh Das vs The State Of Tripura on 10 January, 2025

                HIGH COURT OF TRIPURA
                      AGARTALA
                  W.P.(C) No.332 of 2024

Samaresh Das,
S/O. Late Binod Bihari Das,
Resident of Gobinda Tilla, P.O. Amarpur,
Gomati, Tripura, PIN:799 101
Aged:45 years
                                              ----Petitioner (s)
                            Versus

1. The State of Tripura,
   to be represented by the Secretary,
   Rural Development Department,
   Government of Tripura, New Secretariat Building,
   New Capital Complex, Kunjaban,
   P.S. New Capital Complex, Agartala,
   West Tripura, PIN: 799 010
2. The Secretary,
   Rural Development Department,
   Government of Tripura, New Secretariat Building,
   New Capital Complex, Kunjaban,
   P.S. New Capital Complex, Agartala,
   West Tripura, PIN:799 010
3. The Joint Secretary,
   Rural Development Department,
   Government of Tripura, New Secretariat Building,
   New Capital Complex, Kunjaban,
   P.S. New Capital Complex, Agartala,
   West Tripura, PIN:799 010
4. The Deputy Secretary,
   Rural Development Department,
   Government of Tripura, New Secretariat Building,
   New Capital Complex, Kunjaban,
   P.S. New Capital Complex, Agartala,
   West Tripura, PIN:799 010
5. The District Magistrate & Collector,
   Gomati District, Udaipur,
   Office of the District Magistrate & Collector,
   Gomati District, Udaipur, PIN:799 101
6. The Block Development Officer,
   Silachari R.D. Block,
   Office of the Block Development Officer,
   Silachari R.D. Block, Gomati District,
   PIN:799 104

                                          ---- Respondents (s)

For Petitioner(s) : Mr. P. Roy Barman, Sr. Adv.

Mr. Samarjit Bhattacharjee, Adv.

For Respondent(s)  :           Mr. M. Debbarma, Addl. G.A.
Date of Hearing &
Judgment and Order :           10.01.2025
Whether fit for
Reporting                :     NO


        HON‟BLE MR. JUSTICE BISWAJIT PALIT

                    Judgment & Order (Oral)

Heard Learned Senior Counsel Mr. P. Roy Barman

assisted by Mr. S. Bhattacharjee, Learned counsel appearing

on behalf of the petitioner and also heard Mr. M. Debbarma,

Learned Addl. G.A. appearing on behalf of the State-

respondents.

02. By means of filing this writ petition, the present

petitioner has sought for the following reliefs:

(i) Issue Rule upon the Respondents to show

cause as to why Writ in the nature of mandamus

and/or Order/direction shall not be issued

whereby quashing and cancelling the letter,

dated, 20.02.2024, issued by the Block

Development Officer, Silachari RD Block, Gomati

District.

(ii) Issue Rule upon the Respondents to show

cause as to why Writ in the nature of mandamus

and/or Order/direction shall not be issued

whereby directing the Respondents not to cause

any recovery from the Petitioner in connection

with his ACP-1 financial benefits.

(iii) Make the rules absolute.

(iv) Call for records.

(v) Pass any further order/orders as this Hon'ble

High Court considered fit and proper.

03. The brief facts of this writ petition is that

according to the petitioner vide Order

No.F.2(9)/DIT/Estt./2000/1140-44, dated 22.06.2002,

issued by the Director, Information Technology Department,

Government of Tripura, the petitioner was appointed to the

post of Computer Operator in Community Information

Centre, under the Directorate of Information Technology

(Department of Industries and Commerce) on contract basis

for a period of two years on the terms and conditions

mentioned in the order and after appointment the petitioner

joined under the respondents w.e.f. 08.07.2002. Thereafter,

vide notification dated 27.06.2009 issued by the Joint

Secretary, Rural Development Department, Government of

Tripura the petitioner was offered appointment to the

temporary post of Computer Operator (CIC) (Group-C, Non-

Gazetted) on regular pay scale of Rs.4200-8650/- per

month plus other admissible allowances under R.D.

Department w.e.f 01.12.2008 on the terms and conditions

mentioned in the said offer of appointment as the petitioner

had completed six years of service on fixed pay basis and

accordingly the petitioner joined in the post of Computer

Operator under Rural Development Department,

Government of Tripura vide memo dated 27.06.2009

marked as Annexure-2.

04. Thereafter vide notification dated 27.06.2009

issued by the Joint Secretary, Rural Development

Department, Government of Tripura, the Governor was

pleased to grant regular scale of pay of Rs.4200-8650/- to

52 Computer Operators (CIC) (Group-C, Non-Gazetted),

including the petitioner after completion of six years of

continuous service without break on fixed pay basis. It was

also mentioned that the past services of those 52 nos.

Computer Operators under CIC rendered in the IT

Department would be taken into consideration for future

service benefit. The notification dated 27.06.2009 is

annexed with this petition marked as Annexure-2. After

that, vide Order No.F.1(114-B)-DM/G/ESTT/2012/133,

dated 17.02.2014 issued by the District Magistrate &

Collector, Gomati District, Udaipur the petitioner along with

others were allowed benefit of ACP-I w.e.f. 08.07.2012 on

completion of his 10 years of regular and satisfactory

service from the date of his entry into service i.e. on

22.06.2022 and the effective date from which the ACP shall

be admissible was determined on 08.07.2012. The order is

annexed with the petition marked as Annexure-3.

05. It was also further stated that the Deputy

Secretary, Government of Tripura, Rural Development

Department vide letter dated 20.09.2014 informed the

District Magistrate & Collector, West Tripura that contractual

service period is not taken into account for computing the

required period of service for ACP as per reference

Computer Operators (CIC) has been allowed ACP taking the

contract period of service into consideration and it should be

cancelled immediately and excess amount paid to the

incumbents shall be recovered at the earliest. Subsequently,

another letter dated 05.05.2018 was issued by the Addl.

Secretary, Rural Development Department, Govt. of Tripura

to all the District Magistrate and Collectors, requesting them

to examine whether any Senior Computer Assistant (SCA)

has been granted ACP benefit by wrongly counting the

contract period of their service, and in case, the concerned

SCA is enjoying the ACP granted wrongly, request was

made by the Addl. Secretary to withdraw the same

immediately and send action taken report to the

Department positively by 15.05.2018. Copies of the letters

dated 20.09.2014 and 05.05.2018 annexed with this

petition marked as Annexure-4.

06. Being aggrieved by the aforesaid letters dated

20.09.2014 and 05.05.2018 the present petitioner and

others filed one Writ Petition being W.P.(C) No.536 of 2018

before the High Court and this High Court and this High

Court stayed the operation of impugned memo dated

08.05.2018 whereby the benefit of ACP-1 was arbitrarily

withdrawn by the DM & Collector, South Tripura, Belonia.

Thereafter, this High Court allowed the writ petition by the

common judgment and order dated 03.10.2019 along with

other writ petitions quashed the memorandum dated

20.09.2014 and 05.05.2018 and directed the respondents

to restore and continue to give benefits of ACP-I to the

petitioner. The State-respondents being aggrieved with the

said judgment preferred one appeal which was numbered as

WA 136/2020 and the Division Bench of this High Court

quashed the writ appeal by the judgment and order dated

02.03.2021. But the Division Bench did not direct the

respondents to cause recovery of the said benefit already

given to the incumbents.

07. Thereafter all on a sudden, the Block

Development Officer, Silachari RD Block, Gomati District,

issued letter dated 20.02.2024 to the Asstt. Accounts Officer

(AAO), Accounts Section, Silachari RD Block stating inter

alia that in pursuance to the Memo No.F.1(114-B)-

ESTT/MACP/DM(G)/2019-20/6091 dated 30.07.2021 issued

by the District Magistrate & Collector, Gomati District,

Udaipur for recovery of excess amount paid to the present

petitioner in connection with cancellation of ACP-I which

was granted w.e.f. 08.07.2012 the excess amount comes to

Rs.6,92,866/- from 08.07.2012 to 31.01.2024 expressing

that the BDO, Silachari RD Block instructed the AAO,

Silachari RD Block to recover the excess amount of

Rs.6,92,866/- drawn by the petitioner on monthly basis

from the month of February, 2024 and further mentioned

that the 1st installment to be recovered would be of

Rs.6461/- out of 108 installments followed by remaining

installments @ Rs.6415/- each. Copy of the letter dated

20.02.2024 is annexed with this petition marked as

Annexure-7. Hence the present petitioner filed this writ

petition.

08. The State-respondents have contested the case

by filing counter-affidavit and in the counter-affidavit the

State-authority denied the claim of the petitioner and

submitted that there are several other judgments of the

Hon'ble Supreme Court regarding recovery of excess

amount which is legally permissible and prayed for dismissal

of this writ petition.

09. Taking part in the hearing Learned Senior

Counsel Mr. P. Roy Barman assisted by Mr. S.

Bhattacharjee, Learned counsel appearing for the petitioner

stated that the petitioner Samaresh Das was initially

appointed as Computer Operator (Group-C, Non-Gazetted)

in the establishment of R.D. Department in the year 2002

on contractual basis and in the year 2008 his service was

regularized and after completion of ten years of service,

CAS-1(ACP-I) was granted to him. Thereafter in the year

2012 the Department provided him the benefit of CAS-1

after taking into account of his period of contractual service

and regular service both, on completion of ten years of

service. Learned Senior Counsel further submitted that on

20.09.2014 the Deputy Secretary to the Government of

Tripura, Rural Development Department in formed the

District Magistrate & Collector, West Tripura that contractual

service period is not taken into account for computing the

required period of service for ACP as per Rule and

subsequently, on 05.05.2018 a letter was issued by the

Addl. Secretary, Rural Development Department, Govt. of

Tripura to all the District Magistrate & Collectors for

withdrawal of benefit of CAS-1(ACP-I) from the petitioner

(Annexure-4) and being aggrieved thereby the petitioner

filed one writ petition before this High Court which was

numbered as WP(C)No.536 of 2018 and a Coordinate Bench

of this High Court allowed the writ petition filed by the

petitioner. After that the Government of Tripura challenged

the said judgment before the Division Bench of this High

Court which was numbered as WA No.136 of 2020 and the

Division Bench of this High Court by judgment dated

02.03.2021 reversed the judgment of the Learned Single

Judge holding that the past service of contractual service

cannot be counted for granting of CAS-1(ACP-I). Learned

Senior Counsel Mr. Roy Barman further submitted that in

the said judgment of the Hon'ble Division Bench there is no

observation or decision made by the Division Bench of this

High Court for recovery of amount already paid to the

petitioner. But despite the same the D.M. & Collector vide

letter dated 20.02.2024 directed the concerned B.D.O. to

recover the said overdrawn amount from the salary of the

petitioner and in compliance of the said direction of the said

D.M. & Collector, Gomati District, Udaipur, the B.D.O.,

Silachari RD Block issued memorandum dated

20.02.2024(Annexure-7) directed the Accounts Department

of the Silachari RD Block to recover the excess amount

drawn by the petitioner for the period from 08.07.2012 to

31.01.2024 in 108 nos. of installments @ Rs.6415/- per

month from the month of February, 2024. Learned Senior

Counsel further submitted that as per the decision of this

High Court in connection with Case No.WP(C)1342 of 2016,

WP(C)1345 of 2016 and WP(C)1346 of 2016 dated

13.07.2017 of a coordinate Bench of this High Court and

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

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

reported in (2015) 4 SCC 334 that no such deduction is

permissible as per law as there was no false representation

or information from the side of the petitioner who is a

Group-C employee and excess amount, if any, was paid that

was only for the fault of the department not for the fault of

the petitioner. Learned Senior Counsel also submitted that

as per Annexure-7 i.e. communication of DM & Collector,

Gomati District, Udaipur, the period of excess amount of the

petitioner as Computer Operator was with effect from

08.07.2012 to 31.01.2024, so in view of the judgment of

the Hon'ble Apex Court in aforenoted case Rafiq Masih

(supra), recovery of excess amount beyond five years is not

permissible.

10. The State has contested the case by filing the

counter-affidavit as already stated denying the assertions of

the writ petitioner rather the State has taken the plea that

there are several judgments in this regard that recovery is

permissible and the State finally by the counter-affidavit

urged for dismissal of this writ petition. However, in course

of hearing Learned Addl. G.A. Mr. M. Debbarma appearing

on behalf of the State has submitted that initially a

Coordinate Bench of this High Court by a judgment dated

03.10.2019 in connection with case Nos. W.P.(C) No.515 of

2018 W.P.(C) No.527 of 2018 W.P.(C) No.528 of 2018

W.P.(C) No.529 of 2018 W.P.(C) No.530 of 2018 W.P.(C)

No.531 of 2018 W.P.(C) No.532 of 2018 W.P.(C) No.533 of

2018 W.P.(C) No.534 of 2018 W.P.(C) No.535 of 2018

W.P.(C) No.536 of 2018 W.P.(C) No.537 of 2018 W.P.(C)

No.538 of 2018 W.P.(C) No.539 of 2018 W.P.(C) No.540 of

2018 W.P.(C) No.541 of 2018 W.P.(C) No.542 of 2018

W.P.(C) No.741 of 2018 allowed the similar claim of those

petitioners. But challenging the said judgment the State of

Tripura preferred an appeal before the Division Bench of this

High Court and the Division Bench of this High Court by the

judgment dated 02.03.2021 delivered in case Nos. W.A. 143

of 2019, W.A. 18 of 2020, W.A. 125 of 2020, W.A. 126 of

2020, W.A. 127 of 2020, W.A. 129 of 2020, W.A. 130 of

2020, W.A. 131 of 2020, W.A.134 of 2020, W.A. No.135 of

2020, W.A. No.136 of 2020, W.A. No.137 of 2020, W.A. 138

of 2020, W.A. 139 of 2020, W.A. 140 of 2020, W.A. 141 of

2020, W.A. 142 of 2020, W.A. 143 of 2020, W.A. 144 of

2020, W.A. 170 of 2020, W.A. 171 of 2019, W.A. 172 of

2019, W.A. 173 of 2019, W.A. 174 of 2019, W.A. No.175 of

2019, W.A. No.176 of 2019, W.A. No.177 of 2019 and W.A.

No.178 of 2019 reversed the judgment of the Learned

Single Judge of this High Court and the said fact is narrated

in the counter-affidavit filed by the state-respondents.

11. I have heard rival submissions of both the parties

and perused the writ petition filed by the petitioner as well

as the counter-affidavit filed by the State-respondents.

There is no dispute on record that the present petitioner

was initially appointed as Computer Operator (Group-C) in

the establishment of RD Department in the year 2002 on

contractual basis and thereafter in the year 2008 his service

got regularized and after completion of ten years of service

he was given CAS-1 (ACP-I) by the department after taking

into account of his period of contractual service and regular

service. But the dispute started after issuing memorandum

by DM & Collector, South Tripura on 08.05.2018 regarding

withdrawal of ACP-1 benefit provided to the present

petitioner along with others and after that the petitioner

challenged the same before this High Court as discussed

earlier.

12. The Hon'ble Supreme Court of India in State of

Punjab and Others vs. Rafiq Masih (White Washer)

and Others reported in (2015) 4 SCC 334 in para No.18

observed 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 employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from 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."

Referring the same Learned Senior Counsel

submitted that in view of the principle of law laid down by

the Hon'ble Apex court in the said case there is no scope to

recover the excess amount already paid by the respondents

to the petitioner. It was also submitted that the aforesaid

clause-i and clause-ii of the said judgment would be applied

in this case.

13. The petitioner also relied upon another

judgment of this High Court in WP(C) No.1342 of 2016

dated 13.07.2017 in para Nos.5, 6, 7, 8 and 9, wherein this

High Court observed as under:

"5. The grievance of the petitioners is thus confined to the recovery as directed by the order dated 15.11.2016. Mr. Pal, learned counsel has fairly submitted that in terms of the said memorandum dated 21.06.2013 if the pay of the petitioners is refixed, the said arrears as calculated by the Head of Office, can be shown as the excess drawn by the petitioners, but after five years when the petitioners have consumed that sum whether the recovery should be permitted. This is the sole question that has fallen for consideration of this court. Mr. Pal, learned counsel has asserted that in view of Rafiq Masih (supra) such recovery cannot be permitted as the Apex Court has clearly laid the guideline that recovery from the employees belonging to the class III and class IV services or Group „C‟ and Group „D‟ services whose excess payment has been made for a period in excess of five years before the order of recovery was issued cannot be made.

6. In the present case, the petitioners have enjoyed the said excess amount for five years when the order of recovery was issued and hence following the guidelines as laid down by the Apex Court in Rafiq Masih (supra), the respondents be prohibited from recovering any amount from the petitioners. For purpose of reference, the relevant paragraph where the guidelines are laid down has been extracted hereunder:

"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 employees belonging to Class-

III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from 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."

7. Mr. Chakraborty, learned Additional Government Advocate has fairly admitted that on the day of issuing the impugned order dated 15.11.2016 (Annexure P-7 to the writ petition) the time frame of five years had expired, but the notice was issued to the petitioner much before that, i.e. on 22.09.2016. That apart, Mr. Chakraborty, learned Additional Government Advocate has submitted that an undertaking was taken from the petitioner at the time of making payment on refixation of pay in the promotional post that had they received any amount in excess they would refund the said amount. Mr. Chakraborty, learned Additional Government Advocate did not dispute the fact that after issuance of the memorandum dated 21.06.2013 the clarification generated a new circumstances when the fact of the drawal of the excess amount was located as the petitioners‟ pay in the promotional post was again refixed. Mr. Chakraborty, learned Additional Government Advocate has submitted having referred para 11 of the reply that the Head of Office for reason best known to him had taken the action after 3 years and 4 months from the date of issuance of the said memorandum dated 21.06.2013.

8. Having appreciated the submissions made by the learned counsel appearing for the parties, this court is of the view that if the recovery is permitted, it would be inequitous and harsh and it would out-weigh the equitable balance.

9. In view of this, the impugned order of recovery dated 15.11.2016 (Annexure 7 to the writ petition) is set aside

and quashed. The respondents are directed not to recover any amount from the petitioner which has been determined to have drawn by the petitioner in excess of the pay till their refixation in terms of the memorandum dated 21.06.2013 (Annexure R-1 to the writ petition)."

Referring the same Learned Senior Counsel

appearing for the petitioner submitted that in view of the

aforesaid citation there is no scope on the part of the State-

respondents to recover the amount from the petitioner

which is already been paid.

14. Learned Senior Counsel finally relied upon

another citation of the Hon'ble Supreme Court in Jagdish

Prasad Singh vs. State of Bihar and Others reported in

2024 SCC OnLine SC 1909 wherein para Nos. 23, 24, 27

and 28 Hon'ble the Apex Court observed as under:

"23. In the case of State of Punjab and Others v. Rafiq Masih (White Washer) and Others3, this Court 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 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."

(emphasis supplied)

24. Recently, this Court in Thomas Daniel v. State of Kerala and Others: 2022 SCC OnLine SC 536, held that the

State cannot recover excess amount paid to the ex- employee after the delay of 10 years.

27. The order dated 8th October, 2009 passed by the State Government directing reduction in the pay scale of the appellant from Rs.6500-10500 to Rs.5500-9000 w.e.f. 1st January, 1996 and directing recovery of the excess amount from him is grossly illegal and arbitrary and is hereby quashed and set aside. The impugned order dated 27th August, 2012 passed by the Division Bench of the High Court does not stand to scrutiny and is hereby quashed. Therefore, the appellant shall continue to receive the pension in accordance with the pay scale of Rs.6500-10500.

28. In case, if any reduction in pension and consequential recovery was effected on account of the impugned orders, the appellant shall be entitled to the restoration/reimbursement thereof with interest as applicable."

Referring the same Learned Senior Counsel

further drawn the attention of this court that since similar

other matters of other petitioners are also pending and by

this time some amount is already been deducted from the

salary bill of the petitioners so a direction may accordingly

be given to the State-respondents to refund/restore the said

amount to the petitioners if deducted from the salary bill.

15. So, after hearing detailed submission of Learned

Counsels of both the parties and also after going through

the principles of law laid down by the Hon'ble Apex Court in

the aforenoted cases and also after perusal of the judgment

of a coordinate Bench of this High Court, this court is of the

view that if at this stage the recovery is permitted it would

be unjustified and harsh for the petitioner and also would

came under hardships of the petitioner, so in view of the

above, the impugned order of recovery dated 20.02.2024

issued by B.D.O., Silachari RD Block i.e. Annexure-7 of the

writ petition accordingly stand set aside and quashed. The

respondents are directed not to recover any amount from

the petitioner which has been determined to have been

withdrawn by the petitioner, in excess of the pay.

16. In the result, the writ petition is allowed to the

extent as indicated above. However, if any amount by this

time is deducted from the salary bill of the petitioner that

shall be refunded/restored to the petitioner by the

respondents immediately.

Pending application, if any, stands disposed of.

There shall be no order as to costs.

                                                               JUDGE





MOUMITA                    MOUMITA DATTA

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