1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 3210 of 2022  Shriram S/o Late Shri Ramcharan Aged About 66 Years Retired Form The Post Of Chowkidar/dairy Attendant, Department Of Veterinary Services At Bilaspur, Chhattisgarh, R/o Lalbagh Rajnandgaon, District : Rajnandgaon, Chhattisgarh ... Petitioner(s) versus 1. State Of Chhattisgarh Through Itss Secretary, Department Of Animal Husbandry, Veterinary Services And Dairy Development, Mantralaya, Mahanadi Bhawan, Atal Nagar, Raipur, District : Raipur, Chhattisgarh 2. The Director Office Of Directorate Animal Husbandry And Dairy Deparment (Veterinary Services), Indrawati Bhawan, Atal Nagar, Raipur, District : Raipur, Chhattisgarh 3. Joint Director Department Of Animal Husbandry (Veterinary Services), Bilaspur,, District : Bilaspur, Chhattisgarh 4. Assistant Milk Commissioner State Dairy Laboratory, Bilaspur, District : Bilaspur, Chhattisgarh ... Respondent(s) For Petitioner : Mr. Vinod Deshmukh, Advocate along with Ms. Azka Alam, Advocate For State : Mr. Vedant Shadangi, P.L. Hon’ble Shri Justice Rakesh Mohan Pandey Order On Board 01-09-2025 Digitally signed by AJINKYA PANSARE Date: 2025.09.02 14:24:34 +0530 2 1) By way of this petition, petitioner has sought following reliefs:- i. That, this Hon'ble court may kindly be pleased to call for entire records of the case. ii. That, this Hon'ble court may kindly be pleased to quash the order dated 19.07.2021 (Annexure P/1) and order dated 13.07.2021 (Annexure P/2) issued by respondent no. 3. iii. That, this Hon'ble Court may kindly be pleased to further direct the respondent authority to not recover the service benefits and arrears of salary which has already been granted to the petitioner vide order dated 17.09.2019. iv. Any other relief as deemed fit by this Hon'ble Court. 2) Facts of the present case are that initially, petitioner was appointed as Dairy Attendant on daily-rate basis under respondents on 01.07.1982. Thereafter, petitioner was regularized vide order dated 10.02.2004. On 17.11.2015, he moved a representation for his regularization w.e.f. 01.07.1982 or 01.07.1987 and also prayed for correction of date of regularization in his service record. Petitioner stood retired from services from the post of Chowkidar on 31.12.2016. Petitioner along with other persons filed WPS No. 3071 of 2019 before this Court for counting his past service on daily-rate basis in his service book, which was disposed vide order dated 26.04.2019. Thereafter, Assistant Milk Commissioner State Dairy Laboratory, Bilaspur i.e. respondent No. 4 decided the representation of petitioner vide order dated 17.09.2019 and extended the benefit of regularization and regular 3 pay-scale to the petitioner w.e.f. 01.07.1987 (after five years of his initial appointment on daily-rate basis). Subsequently, Joint Director Department Of Animal Husbandry (Veterinary Services), Bilaspur i.e. respondent No. 3 vide its orders dated 19.07.2021 (Annexure P-1) and 13.07.2021 (Annexure P-2), cancelled the order dated 17.09.2019 and proposed recovery from the petitioner. 3) Learned counsel for the petitioner submits that respondent No. 4 decide the representation made by petitioner pursuant to order passed in WPS No. 3071 of 2019 vide its order dated 17.09.2019 and benefit of regularization and regular pay-scale were extended to petitioner w.e.f. 01.07.1987. He further submits that petitioner is a Class-IV employee and he stood retired from services w.e.f. 31.12.2016, thus it would be very difficult for him to refund the amount. He contends that benefit of regular pay-scale was extended to petitioner w.e.f. 01.07.1987 and it continued till retirement of petitioner on 31.12.2016 whereas the orders impugned were passed only in the year 2021 after five years of petitioner’s retirement. He argues that that issue involved in present case is squarely covered by the judgment rendered by the Hon’ble Supreme Court in matter of State of Punjab v. Rafiq Masih (White Washer) and others1. He prays to allow this petition. 4) On the other hand, learned State counsel submits that petitioner 1. (2015) 4 SCC 334 4 was granted benefit of regularization and regular pay-scale by respondent No. 4 without obtaining prior sanction from the superior authorities and without there being any provision in this regard, petitioner was regularized with retrospective effect. He further submits that when this mistake came within knowledge of the superior authorities, orders in this regard were issued by respondent No. 2 on 19.07.2021 and 13.07.2021 whereby earlier order dated 17.09.2019 has been canceled and recovery has been contemplated. He contends that petitioner cannot be allowed to avail the benefit of an erroneous order, therefore this petition deserves to be dismissed. 5) Heard learned counsel for the parties and perused the documents placed on record. 6) Evidently, petitioner was initially appointed on 01.07.1982 on daily-rate basis ; he was regularized vide order dated 10.02.2004 and he stood retired on 31.12.2016. Thereafter, petitioner filed WPS No. 3071 of 2019 seeking therein a direction to the respondent authorities to decide his representation with regard to inclusion of service rendered by him as a daily-rated employee in the service record. Pursuant to order passed in writ petition dated 26.04.2019, respondent No. 4 decided the representation so moved by the petitioner vide order dated 17.09.2019 and granted him the benefit of regularization and regular pay-scale w.e.f. 01.02.1987 i.e. five years from his date of initial appointment. Subsequently, orders impugned were passed in year 2021 5 canceling the order dated 17.09.2019 and contemplating recovery against petitioner. 7) The Hon’ble Supreme Court in the matter of Rafiq Masih (supra) observed that:- 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 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. 8) Admittedly, petitioner is a class-IV employee ; there was no misrepresentation on the part of petitioner and he has retired from service w.e.f. 31.12.2016, thus it would be difficult for him to 6 refund the huge amount of recovery. 9) Taking into consideration the facts of the present case and the law laid down by the Apex Court in the matter of Rafiq Masih (supra), orders issued by respondent No. 2 dated 19.07.2021 and 13.07.2021 are not sustainable in the eyes of law and are hereby set aside. 10) Accordingly, this petition stands allowed. Sd/- (Rakesh Mohan Pandey) JUDGE Ajinkya