1 2025:CGHC:149 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 3743 of 2015 Atmaram Jaiswal S/o Late Kali Ram Jaiswal, Aged About 47 Years Working As Lecturer, Govt. Higher Secondary School, Amera, District- Baloda Bazar- Bhatapara, Chhattisgarh. -- Petitioner versus 1- State of Chhattisgarh, Through Secretary, Education Department, Mantralaya, P.S. Rakhi, Tahsil- Aarang, Naya Raipur, District Raipur, Chhattisgarh. 2- Commissioner, Director Public Instructions, Raipur, District- Raipur, Chhattisgarh. 3- Joint Director, Accounts Treasury And Pension, Raipur, District Raipur, Chhattisgarh. -- Respondents For Petitioner : Mr. C. Jayant. K. Rao, Advocate. For Respondents/State : Mr. Devesh G. Kela, PL. Hon'ble Smt. Justice Rajani Dubey Order on Board 02.01.2025 1. The petitioner has filed the present writ petition seeking the following reliefs:- “10.1. That this Hon’ble Court pleased to issue a writ in the nature of mandamus setting aside the remarks made by respondent No. 3 in the service book of the petitioner (Annexure P/3). 10.2. That the Hon’ble Court may kindly be pleased to grant any other relief as it may deems fit and appropriate. 2. The case of the petitioner in brief is that he was appointed on 2 02.03.1987 on the post of Assistant Teacher with a regular pay scale. However, respondent No. 3 in an illegal and arbitrary manner on 16.09.2014 made entry in the service book of the petitioner that he is entitled for regular pay scale from the year 03.03.1988 and accordingly crossed the actual date of 03.03.1987, from which, he is getting the regular pay scale and made entry in the service book to recover the excess payment made to the petitioner from 03.03.1988 to 23.02.1996. 3. Learned counsel for the petitioner submits that the petitioner is legally entitled for the regular pay scale from the very date of his appointment, as he was appointed on compassionate basis on 02.03.1987 and from the very date of his appointment, he is getting the regular pay scale. He submits that before making the above entry in the service book of the petitioner, no opportunity of hearing was afforded to the petitioner, who is a Class-III employee. Therefore, the impugned remarks made by respondent No. 3 in the service book of the petitioner are liable to be set aside. Reliance has been placed on the judgment of Supreme Court in the matter of State of Punjab vs. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334. 4. On the other hand, learned counsel for the State would oppose the submissions made by counsel for the petitioner and submits that office of Joint Director/Respondent No. 3 raised objection that the petitioner is entitled for regular pay scale from 03.03.1988 in place of 03.03.1987, from the date he was getting the regular pay scale and due to wrong fixation excess payment was paid to the petitioner, which is recoverable from his salary. Therefore, the present petition lacks any substance and is liable to be dismissed. 3 5. I have heard learned counsel for the respective parties and perused the material available on record. 6. It is not disputed that petitioner was appointed on compassionate basis on the post of Assistant Teacher on 02.03.1987. It is also not disputed that as per service book (Annexure P/3), on 16.09.2014 entry was made in his service book to recover the excess payment amount. 7. It is vivid that the entry was made in the petitioner’s service book after 18 years and it is clear that as per this entry the excess payment shall be recovered from the petitioner from 03.03.1988 to 23.02.1996. 8. It is also quite vivid that respondents did not file any recovery order or any order of competent authority, which shows that on what ground this entry was made in service book of the petitioner. 9. The Hon’ble Supreme Court while dealing with the similar issue in the Rafiq Masih (supra) in para 18 held as under. “ 18. 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 4 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.” 10. Looking to the facts of the present case and the law laid down by the Hon’ble Apex Court, the order of recovery issued by respondents against the petitioner in service book of the petitioner is hereby quashed and the amount, if any, recovered from the petitioner shall be refunded forthwith. 11. With the aforesaid observations, this petition is disposed of. Sd/- (Rajani Dubey) JUDGE AMIT PATEL Digitally signed by AMIT PATEL Date: 2025.01.06 04:45:57 +0530