1 2025:CGHC:9046 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1628 of 2023 Manohar Goswami S/o Late Domaji Goswami Aged About 60 Years Resident Of Shankar Nagar, Durg District- Durg Chhattisgarh. ---Petitioner versus 1 - State of Chhattisgarh Through Secretary, Department of School Education, Mahanadi Bhawan, Mantralaya, New Raipur, District- Raipur Chhattisgarh. 2 - District Education Officer, Durg District- Durg Chhattisgarh. 3 - Block Education Officer, Block Durg District-Durg Chhattisgarh. 4 - Divisional Joint Director, Treasury And Pension Durg, District - Durg Chhattisgarh. --- Respondent For Petitioner : Mr. Ajay Shrivastava, Advocate. For Respondent/ State : Mr. Suyash Dhar Badgaiyan, Dy. G.A. Hon'ble Shri Justice Amitendra Kishore Prasad Order On Board 20.02.2025 1. By way of this petition, the Petitioner has prayed for following relief(s) :- “i. That, this Hon’ble Court may kinldy be pleased to quash the recovery order (Annexure P/1) and direction may be issued to release the retiral dues without any deduction, in the interest of justice. ii. That, this Hon’ble Court may kindly be pleased to held that the circular dated 01.12.2016 is not applicable in the case of the petitioner and it is applicable prospectively, in the interest of justice. Digitally signed by AMIT PATEL Date: 2025.02.28 11:24:22 +0530 2 iii. Any other relief which may be suitable in the facts and circumstances of the case including cost of the petition, may also be granted.’’ 2. The facts of the case, as projected in the present writ petition, in brief are that the wife of the petitioner Late Smt. Baisa Goswami, was working as Upper Division Teacher at Govt. Middle School, Tuturdih, District- Durg, Chhattisgarh and she died in harness on 02.11.2022. Upon the death of the said deceased employee, her legal heirs are entitled for the death-cum-retiral benefits. In the process of settlement of the death-cum-retiral dues, the respondents No. 4 has now issued a recovery order stating that the deceased employee while she was in service, she was paid two advance increments on obtaining the qualification of B.Ed. in the year 1989 and the said amount was erroneously paid to her and thus, the husband of the petitioner has received an excess amount of Rs. 2,46,574/-. That the respondent No. 4 further has issued the impugned order (Annexure P/1) directing the petitioner to deposit the aforesaid excess amount and thereby, enabling the respondents to clear the other retiral dues payable to the petitioner. 3. Learned counsel for the petitioner submits that the impugned order of recovery is per se illegal, bad-in-law in the light of the judgment of the Hon’ble Supreme Court rendered in the case of “ State of Punjab vs. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334..” According to learned counsel for the petitioner, it is a case where the alleged excess payment was made in the year 1993 i.e. more than 30 years earlier from the date when the wife of the petitioner died. Further, the said two advance increments paid to his wife was not on account of any misrepresentation or fraud committed on the part of his wife. Even if the said amount has been paid erroneously, the error was at the hand of the authorities. Therefore, the 3 recovery from the legal heirs now is not justified and the same is liable to be quashed. He also places reliance upon the decisions of Hon’ble Apex Court in the matters of N.D.P. Namboodripad (dead) by Lrs. vs. Union of India & Other, reported in (2007) 4 SCC 502 Thomas Daniel vs. State of Kearala and others, reported in 2022 SCC OnLine SC 536 and on the decision of this Hon’ble Court in the matter of Hazera Begam vs. State of Chhattisgarh, reported in 2024 SCC OnLine Chh 10550. He submits that in view of the aforesaid decisions, recovery made by respondents from the petitioner is erroneous and not permissible. Order Annexure P/1 so far as it relates to the petitioner, may be set aside and subsequently, direction may also be issued to the respondent authorities to refund back the amount already recovered from the petitioner. 4. On the other hand, learned counsel for the respondents/State would oppose the submission made by the counsel for the petitioner and would submit that the order of recovery is legal and justified as due to wrong fixation of pay, the wife of the petitioner has been granted two advance increments during her service period for which, she was not entitled. Hence, the impugned order of recovery of excess payment is justified and in accordance with law. He submits that as per the order dated 07.03.2020 (Annexure R/2), the State Government has duly clarified that the Assistant Teachers who were appointed after 16.06.1993 are not liable for the benefit of grant of advance increments payable on account of teachers holding B.Ed./D.Ed./BTI. Therefore, on account of this order, the wife of the petitioner is not liable for the advance increments being wrongly paid to her. However, he does not oppose the submission of the counsel for the petitioner that the impugned order was issued after death of the wife of the petitioner namely Late Smt. Baisa Goswami. 4 5. I have heard learned counsel for the parties and perused the documents placed on record. 6. Perusal of the impugned order would show that the impugned order has been issued on 30.12.2022 for refund of excess amount of Rs. 2,46,574/- whereas, the advance increments which were granted to the wife of the petitioner was of the year 1993. Perusal of the order would also show that the wife of the petitioner died in harness while working on the post of Upper-Division Teacher which is a Class – III category post. It is also evident that the order was passed after 30 years of granting of the advance increments which was made after fixation of pay by the respondent authorities. 7. Hon’ble Supreme Court in the case of Rafiq Masih (supra) 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 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. 5 (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.” 8. In the light of above judgment, when the facts of the present case are to be examined. The alleged excess payment was not made by any misrepresentation or fraud on the part of the wife of the petitioner is squarely covered by the decision in the case of Rafiq Masih (supra). Therefore, the impugned order (Annexure P/1) issued by the respondent authorities for recovery of the excess payment is set aside and the amount which has been recovered, if any, as excess payment , shall be refunded to the petitioner within a period of 60 days from the date of receipt of copy of this order, failing which, it will carry interest @ 6% from the date of filing of this writ petition. 9. Respondents are further directed to release the retiral dues of the petitioner within a period of 04 weeks from the date of receipt of copy of this order. 10. As an upshot, the instant petition stands allowed with the aforesaid observations and directions Certified Copy as per rules. Sd/- (Amitendra Kishore Prasad) JUDGE AMIT PATEL