1 2025:CGHC:18681 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1543 of 2025 1 Sushil Kumar Shukla S/o Late Shri Pilababu Shukla Aged About 64 Years Occupation Retired Head Master, At Govt. Higher Secondary School Bodsara (Middle School Deport.) Block-Nawagarh District Janjgir-Champa Chhattisgarh ... Petitioner(s) versus 1 State Of Chhattisgarh Through Department Of School Education Department, Mahanadi Bhawan, Atal Nagar New Raipur Chhattisgarh 2 The District Education Officer District Janjgir Champa Chhattisgarh 3 The Principal District Institution Of Education And Training Janjgir District Janjgir Champa Chhattisgarh 4 The Principal Govt. Higher Secondary School Bodsara Block- Nawagarh District Janjgir-Champa Chhattisgarh 5 The Joint Director Accounts Treasury And Pension, Bilaspur Chhattisgarh ...Respondent(s) JYOTI SHARMA Digitally signed by JYOTI SHARMA Date: 2025.04.26 12:41:12 +0530 2 For Petitioner : Shri Ashwani Shukla, Advocate. For Respondents/ State : Shri Rishabh Bisen, P.L. For Respondent No. 5 : Shri Aman Tamboli, Advocate Hon'ble Justice Shri Bibhu Datta Guru Order on Board 24/04/2025 1. The petitioner has filed this petition seeking the following relief(s):- 10.1 That this Hon'ble Court may pleased to issue a writ in the nature of certiorari quashing the amended pay scale chart due to recovery is made against the petitioner amount of Rs. 86320/- (Annexure P-1). 10.2 That this Hon'ble Court may pleased to issue a writ in the nature of mandamus directing the respondents to refund the recovery amount which is due to the petitioner with interest. 10.3 That, the Hon'ble Court may kindly be pleased to grant any other relief as it may deems fit and appropriate. 2. Learned counsel for the petitioner submits that the petitioner is holding the post of Head Master and working in the Office of respondent No. 4 Vide letter dated 13.10.2017 respondent No. 3 amended the pay fixation of the petitioner mentioning that the pay of the petitioner was wrongly fixed on the higher side vide order dated 1.1.2006. He also contended that thereafter vide order dated 13.10.2017, a recovery order for an amount of Rs.86,320/- was issued against the petitioner along with another individual. Against that order, the petitioner has filed this writ petition, however, by the time the writ petition came up for hearing, the 3 amount mentioned in the order was recovered. He further contended that the petitioner is holding a Class-II post and according to the decision rendered in the case of State of Punjab and others v. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334 recovery is not permissible. He further argued that a similar view has been taken by the Hon’ble Supreme Court in the case of the High Court of Punjab and Haryana and others v. Jagdev Singh, (2016) 14 SCC 267. The petitioner also refers to the judgment rendered by a Division Bench of this Court in the case of State of Chhattisgarh v. Labha Ram Dhruv in Writ Appeal No.264 of 2020 and also in the case of State of Chhattisgarh and others v. Roshan Lal Baghel, Writ Appeal No.265 of 2020. He submits that recovery made by the respondents from the petitioner is erroneous and not permissible. The order Annexure-P/3 so far as it relates to the petitioner may be set aside and a direction may be issued to respondent No.4 to refund the recovered amount. 3. Learned State counsel opposing the submissions made by counsel for the petitioner would submit that at the time of pay revision, the pay of the petitioner was wrongly fixed at the higher side in the year 2006 and the petitioner was paid salary based on wrong fixation of pay till 2017. The department detected the mistake of wrong fixation of the salary of the petitioner and other similarly situated government servants in the year 2017 and 4 thereafter order Annexure P/1 was issued, whereby the salary of the petitioner was revised and thereafter vide Annexure-P/1, an order of recovery was issued against the petitioner and other government servants. The petitioner had also expressed his willingness to return back the excess amount towards the wrong fixation of salary and consent was given to deduct the amount of excess payment from his pension, gratuity and leave encashment amount, hence, he is not entitled to get the benefit of the decisions relied upon by him. 4. Heard learned counsel for parties and perused the documents placed on the record. 5. Undisputedly, as per the decision of pay revision, the pay of the petitioner was revised on 1.1.2006. As per the submissions made by counsel for both sides, the pay was erroneously fixed, which led to excess payment to the petitioner. The order of pay fixation was issued in the year 2009 whereas the benefit was given from 1.1.2006. 6. The Hon’ble Supreme Court in the case of Rafiq Masih (supra) observed thus:- “10. In State of Punjab v. Rafiq Masih (Supra) this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV 5 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. 11. The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.” 7. In the case of Jagdev Singh (supra), the Hon’ble Supreme Court though had considered the issue with regard to the undertaking, however, Para-10(i) of the decision in the case of Rafiq Masih (supra) has not been overruled or interfered with. This aspect is also considered by a Division Bench of this Court in the case of Labha Ram Dhruv (supra) and observed thus:- 6 “9.In the case at hand, the Revision of Pay Rules, 2009 and 2017 do not make any enabling provision reserving option for the employer to seek refund of the amount paid in excess, by making the employee to furnish an undertaking. Even if we conclude, for the sake of arguments, that even in the absence of enabling provision under the Rules, undertaking given by the employee would operate, the fact remains that against the classes of employees against whom recovery would be impermissible in law, as held by the Hon’ble Supreme Court in the matter of Rafiq Masih (Supra), recovery from the employees belonging to Class-III and Class- IV service (or Group 'C' and Group 'D' service) would still be impermissible in law. Meaning thereby that even when undertaking is submitted by the employee, but he otherwise belongs to Class-III and Class-IV service, and the amount has been paid more than 5 years back, the law declared by the Hon’ble Supreme Court in the matter of Rafiq Masih (Supra) would still hold the field in favour of such employees, because the judgment in the matter of Rafiq Masih (Supra) has not been overruled, but only clarified, by the Hon’ble Supreme Court in its later judgment in the matter of Jagdev Singh, Supra” 8. In the aforementioned facts and circumstances of the case, it is quite vivid that the department detected its mistake after 14 years and there is no provision with regard to undertaking in the Revision of Pay Rules, therefore, the law laid down in the matter of Rafiq Masih (supra) would attract. 9. For the foregoing discussion and in the light of the decision of the Hon’ble Supreme Court and a Division Bench of this Court, the impugned order of recovery dated Annexure-P/1 so far as it relates to the petitioner is quashed. 7 10. The respondents are directed to refund the recovered amount to the petitioner within a period of 6 weeks from the date of receipt of a copy of the order, otherwise, the amount shall carry interest at the rate of 5% per annum. 11. With the aforesaid observation(s) and direction(s), the instant petition stands finally disposed of. SD/- (Bibhu Datta Guru) Judge Jyoti