1Whether reporters of Local Papers may be allowed to see the judgment? Yes IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.7470 of 2022 Date of decision: 20.08.2025 Jagdish Chand. ...Petitioner. Versus Secretary, Elementary Education, Government of Himachal Pradesh & Ors. ...Respondents. Coram: Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting? For the petitioner : Mr. Ravi Tanta, Advocate. For the respondents : Mr. Vishwadeep Sharma, Additional Advocate General. Jyotsna Rewal Dua, Judge Petitioner feels aggrieved against the recovery effected from his monthly salary by the respondents on account of alleged overpayment made to him as a result of wrong fixation of his pay. 2. Heard learned counsel for the parties and considered the case file. 2(i). Petitioner is an ex-serviceman and after rendering 17 years 10 months and 1 day’s army service, he joined civil employment in the respondent-Education Department on 16.09.2023 on regular basis. Respondents fixed petitioner’s pay under office order 04.09.2020 (Annexure P-1). Petitioner -2- started receiving his pay in terms of the said order. On 07.09.2021, petitioner’s pay was refixed by the respondents in supersession of previous order. Under office order dated 07.09.2021, petitioner’s pay got reduced. 2(ii). Respondents issued notice to the petitioner on 06.09.2022 for effecting recovery in lieu of overpayment made to him under office order dated 04.09.2020. Petitioner preferred representation on 28.09.2022 to the respondents. Hearing no response, he instituted this writ petition on 18.10.2022 seeking following substantive reliefs:- “a. That the pay fixed vide office order no. EDN-Ele. (III)B2)Pay fixation/2-17-18-Sml Directorate of Elementary Education Himachal Pradesh, Lalpani Shimla-I dated 09.09.2020, is correct calculation of the pay of the petitioner. b. That the pay fixation office order no. EDN-Ele. (III)B(2)Pay fixation/2-17-18-Sml Directorate of Elementary Education Himachal Pradesh, Lalpani Shimla-I dated 07.09.2021 and its further follow up vide letter no.Education-Shimla-(1-3)B Special Pay Increase/2021-23720 dated 07.12.2021 and letter no. EDU-CHH-SML-(Estt(1)/2011-168 dated 06.08.2022, are without legal authority and travelled beyond the purview of law, thus mandating the same to be quashed and set aside. c. That the deduction of an amount of Rs. 40,000/- from salary for the month of September 2022, is illegal under the garb of recovery, which amount as deducted should be forthwith directed to be remitted to the petitioner.” During the course of hearing today, learned counsel for the petitioner submitted that he is under instructions to state that this writ petition be confined only -3- to the relief against the recovery effected by the respondents and not against the alleged wrong fixation of petitioner’s pay by the respondents. It is further submitted that the petitioner will not be pressing this case against the re- fixation of his pay carried out under office order dated 07.09.2021 (Annexure P-2). Accordingly, the writ petition has been heard confined to the petitioner’s prayer against the recovery of overpayment made to him under office order dated 04.09.2020. 3. Respondents in their reply have not denied recovering excess payment from the petitioner-a Class-III employee. According to the respondents, an amount of Rs.6,54,633/- was required to be recovered from the petitioner in view of wrong fixation of his pay ordered on 04.09.2020. It has been submitted by learned counsel for the petitioner that the aforesaid amount has already been recovered from the petitioner. 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 1 (2015) 4 SCC 334 (2) -4- 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. (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 2 (2012) 8 SCC 417 -5- 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 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. 3 SLP(C) No(s). 5918/2024 decided on 04.04.2024 -6- 5. The ratio of the aforesaid decision is applicable to the case of the petitioner. Admittedly, it was not on account of the petitioner’s fault or misrepresentation that the respondents had granted him the benefit of a higher pay scale. The petitioner was a Class-III employee, who retired on 31.01.2023, and the recovery was effected by the respondents at the fag end of his service career. This recovery would have definitely caused hardship to him. This writ petition is, therefore, allowed. Annexure P-4 dated 06.08.2022 is quashed and set aside to the extent it directs recovery of overpayment made to the petitioner. The respondents are directed to refund the entire amount recovered from the petitioner as overpayment within four weeks from today, failing which the amount shall carry interest @ 5% per annum from the date of filing of the petition. Pending miscellaneous application(s), if any, to also stand disposed of. Jyotsna Rewal Dua 20th August, 2025 Judge (Pardeep)