[2025:RJ-JP:28598] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No. 5508/2018 Sajjan Kumar Sharma S/o Late Shri Basanti Lal Joshi, R/o Joshiyon Ki Haweli, Mohalla Bada Baas, Ward No. 23, Kotputli, Dist- Jaipur Raj. ----Petitioner Versus 1. State Of Rajasthan Through Its Principle Secretary, Energy Department, Secretariat, Jaipur Raj. 2. Jaipur Vidyut Vitran Nigam Limited, Jaipur Through Its Secretary Admn., Vidyut Bhawan, Janpath, Jaipur Raj. 3. Rajasthan Rajya Vidyut Prasaran Nigam Limited, Through Its Deputy Secretary Pension, Vidyut Bhawan, Janpath, Jaipur Raj. 4. Assistant Engineer Oandm, Jaipur Vidyut Vitran Nigam Limited, Paota, Distt- Jaipur. ----Respondents For Petitioner(s) : Mr. Punit Singhvi Mr. Ayush Singh Ms. Shraddha Mehta Mr. Mihir Jangid For Respondent(s) : Mr. Shailesh Prakash Sharma HON'BLE MR. JUSTICE SUDESH BANSAL Order 29/07/2025 1. Petitioner stood retired w.e.f. 30.09.2014 from the post of Upper Division Clerk (UDC) and thereafter, vide order impugned dated 27.10.2015 (Annx.9A), the benefits of III ACP granted to the petitioner vide order dated 21.02.2013, has been cancelled and consequently, an amount of Rs.1,66,500/- has been recovered from the gratuity of petitioner. Petitioner has impugned the order dated 27.10.2015 (Annx.9A) by way of filing instant writ [2025:RJ-JP:28598] (2 of 4) [CW-5508/2018] petition on 12.03.2018 under Article 226 of the Constitution of India. 2. Heard learned counsel for both the parties, perused the impugned order and other material placed on record. 3. The contention of counsel for the petitioner is that petitioner is confining his prayer in respect of recovery of Rs.1,66,500/- made by respondent on account of cancellation of the benefit of III ACP. As far as reducing the amount of pension due to cancellation of ACP is concerned, same is not under challenge. 4. Counsel for the petitioner at the outset has placed reliance on oft-quoted and celebrated judgment of Hon'ble Supreme Court delivered in case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) [(2015) 4 SCC 334] and submits that petitioner falls in Group C and recovery from such employee post to his retirement, is impermissible. More so when there was no mis-statement/ misrepresentation of facts by petitioner, in opting benefits of III ACP. For ready reference, the relevant portion has been reproduced hereunder: “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. [2025:RJ-JP:28598] (3 of 4) [CW-5508/2018] (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.” 5. In addition, counsel for the petitioner submits that order of granting of benefit of III ACP, to petitioner, dated 21.02.2013 w.e.f. 1st April, 2010, was not issued on account of any kind of mis-statement/ misrepresentation by the petitioner, hence, no recovery of the benefit of III ACP, already released/paid to the petitioner, could have been made from his pensionary benefits (gratuity of petitioner). 6. The contention of counsel for the petitioner has been repelled by the learned counsel for the respondents on the ground that petitioner filed this writ petition, after effecting the recovery of the amount of Rs.1,66,500/-, pursuant to the impugned order dated 27.10.2015 (Annx.9A), hence, in such eventuality, the ratio decidendi of the judgment delivered by the Hon’ble Supreme Court in case of Rafiq Masih (Supra), may not be applied to the case of petitioner. 7. Having adverted to the rival contentions of learned counsel for both the parties, this Court prima facie finds that merely on account of approaching the High Court with a delay of 3 years, the action of respondents to recover the benefit of III ACP, already released/ paid to petitioner, may not be held justified more so, when such action is impermissible in view of the judgment of Hon’ble Supreme Court in case of Rafiq Masih (Supra). 8. It is further an undisputed fact that the benefits of III ACP to the petitioner was not granted on account of any mis-statement/ misrepresentation by the petitioner and the recovery has been [2025:RJ-JP:28598] (4 of 4) [CW-5508/2018] made from the gratuity amount of petitioner, that too after his retirement from the post of UDC (Grade C Employee) on 30.09.2014. 9. The net outcome is the instant writ petition succeeds and it is hereby declared that the recovery of Rs.1,66,500/- made by the respondent from gratuity amount of petitioner, was illegal and impermissible in law. 10. Hence, consequently the respondents are directed to refund such amount to the petitioner within a period of three months, failing which, such amount shall carry interest @ 6% p.a. 11. All pending application(s), if any, stand(s) disposed of. (SUDESH BANSAL),J RONAK JAIMAN/23