1Whether reporters of Local Papers may be allowed to see the judgment? Yes IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.3932 of 2022 Date of decision: 30.05.2025 Daya Nand. ...Petitioner. Versus State of H.P. & Ors. ...Respondents. Coram: Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting? For the petitioner : Mr. Parkash Sharma, Advocate. For the respondents : Ms. Leena Guleria, Deputy Advocate General. Jyotsna Rewal Dua, Judge CMP-11929 of 2025 Application for early hearing is allowed and to stand disposed of. CWP - 3932 of 2022 Despite the notice having been issued to the respondents on 21.06.2022, when interim protection was also granted in favour of the petitioner against the impugned recovery proceedings, the respondents have till date not filed the reply. Accordingly, the matter is taken up for hearing on the basis of pleadings and documents on record. 2. Petitioner’s simple case is that he was initially appointed as Vidya Upasak on 11.09.2000. His services were -2- regularized as Junior Basic Teacher w.e.f. 01.10.2007. The respondent-Education Department granted him annual increment after regularization in the year 2012. Eight years later on 12.02.2020, a notice (Annexure P-3) was issued to the petitioner by the respondents that some error had occurred while adding annual increment to his salary when he had completed 4 years of regular service as Junior Basic Teacher. That on account of this error, overpayment of Rs.72,427/- had been made to him. Petitioner was directed to deposit the said amount of Rs.72,427/- in lumpsum. Feeling aggrieved petitioner instituted this writ petition for grant of following substantive relief:- “(i) That the impugned order dated 12.02.2020, Annexure P-3, issued by the respondents whereby ordered recovery of Rs.72,427/- from the petitioner may kindly be quashed and set aside.” 3. On 21.06.2022, by way of interim order, it was ordered that recovery proceeding, if not already concluded, shall remain stayed. Learned counsel for the petitioner submits that pursuant to the interim order, amount in question has not been recovered from the petitioner. -3- 4. The Hon’ble Apex Court in State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors.1 has held that recovery by the employer from the employees belonging to Class-III and Class-IV services, where payments have mistakenly been made by the employer in excess of their entitlement, would be impermissible. A Division Bench of this Court relying upon the aforesaid judgment and on consideration of several other precedents in the timeline including Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors.2 has held as under in CWPOA No.145 of 2019 (S.S. Chaudhary Vs. State of H.P. and Other and connected matters), decided on 24.03.2022:- “35. In view of the aforesaid discussion, as held by Hon'ble Supreme Court in Rafiq Masih's case (supra), it is not possible to postulate all situations of hardship, where payments have mistakenly been made by the employer, yet in the following situations, recovery by the employer 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. 1 (2015) 4 SCC 334 (2) 2 (2012) 8 SCC 417 -4- (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. (vi) Recovery on the basis of undertaking from the employees essentially has to be confined to Class- I/Group-A and Class-II/Group-B, but even then, the Court may be required to see whether the recovery would be iniquitous, harsh or arbitrary to such an extent, as would far overweigh the equitable balance of the employer's right to recover. (vii) Recovery from the employees belonging to Class-III and Class-IV even on the basis of undertaking is impermissible. (viii) The aforesaid categories of cases are by way of illustration and it may not be possible to lay down any precise, clearly defined, sufficiently channelized and inflexible gudielines or rigid formula and to give any exhaustive list of myriad kinds of cases. Therefore, each of such cases would be required to be decided on its own merit.” In Jogeswar Sahoo & Ors. vs. The District Judge, Cuttack & Ors.3 Hon’ble Apex Court held that excess payment made to an employee cannot be recovered, if such payment was not on account of any fraud or 3 SLP(C) No(s). 5918/2024 decided on 04.04.2024 -5- misrepresentation on the part of the employee. Also, excess payment to the employee due to any wrong application of the rule or incorrect calculation on the part of the employer is not recoverable. In view of above well-settled principles, recovery from the petitioner on account of error made by the respondents cannot be allowed. Petitioner is a Class-III employee. Ordering recovery from him would otherwise be inequitable and harsh upon him. This writ petition is therefore allowed. Recovery notice dated 12.02.2020 (Annexure P-3) issued by the respondents is quashed and set aside. Pending miscellaneous application(s), if any, to also stand disposed of. Jyotsna Rewal Dua 30th May, 2025 Judge (Pardeep)