2025:HHC:33399 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.11185 of 2025 Date of Decision: 25.09.2025 _______________________________________________________ Smt. Rachna Kumari …….Petitioner Versus State of H.P. and Others ….Respondents _______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner: Mr. Arun Kaushal, Advocate. For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General, with Mr. Ravi Chauhan, Deputy Advocate General, for State. ____________________________________________________ Sandeep Sharma, Judge (oral): By way of instant petition, petitioner has prayed for following main reliefs: “i) That issue a writ in the nature of certiorari to quash and set aside the recovery notice/order dated 03-07-2025 (Annexure P-4). ii) That issue a writ in the nature of Mandamus directing the respondents not to effect any recovery from the petitioner in respect of alleged overpayment of increment in 1996.” 2. Precisely, the facts of the case, as emerge from the pleadings adduced on record by respective parties are that petitioner herein was appointed as a Junior Basic Trained (JBT) Teacher on 29.06.1989 on contract basis. On 30.11.1994, services of the petitioner were regularised and she was posted at GPS Panjseri. On 1Whether the reporters of the local papers may be allowed to see the judgment? 2025:HHC:33399 2 01.01.1996, pay of the petitioner was fixed at ₹4850/- per month. With effect from afore date till 30.06.2025, petitioner kept on discharging duties with utmost devotion and ultimately she retired on 30.06.2025 from the post of BEEO, after attaining the age of superannuation. 3. After three days of her retirement, recovery notice dated 03.07.2025, issued under the signatures of Deputy Director Elementary Education, Chamba, District Chamba, came to be served upon the petitioner to show-cause that why recovery be not effected from her for her having received amount in excess on account of wrong fixation of pay. In the afore background, petitioner has approached this Court in the instant proceedings praying therein for reliefs, as have been reproduced hereinabove. 4. In nutshell, grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Arun Kaushal, learned counsel representing the petitioner is that since amount, if any, received by the petitioner was not on account of her misrepresentation, rather same was received by the petitioner pursuant to order passed by the department, at the time of pay fixation, no recovery, if any, could be affected. In support of his afore submission, Mr. Kaushal, learned counsel representing the petitioner, placed reliance upon the judgment dated 04.04.2025 passed by the Hon’ble Apex Court in Jogeswar Sahoo vs. The District Judge 2025:HHC:33399 3 Cuttack, Civil Appeal of 2025 (arising out of SLP(C) No.5918/2024), wherein Hon’ble Apex Court while placing reliance upon its earlier judgment titled as State of Punjab v. Rafiq Masih (White Washer), (2015) 4 SCC 334, reiterated that no recovery is permissible from the retired employee, especially when there is nothing to suggest that amount sought to be recovered was received by the employee concerned on his/her misrepresentation. 5. Respondents by way of reply have attempted to refute the claim of the petitioner on the ground that during the course of scrutiny of service book of the petitioner, it transpired that at the time of petitioner’s promotion to the post of BEEO, benefit of the bunching increment was granted to the petitioner on 01.01.1996, as a result thereof, her pay was fixed at ₹4850/- instead of ₹4550/-. As per clarification issued by Director, School Education, Himachal Pradesh, vide letter dated 24.12.2010, wherein it was observed that Finance Department has advised that the benefit of bunching increment shall not be admissible on the initial ad hoc services, notice of recovery, as detailed hereinabove, came to be issued to the petitioner. 6. I have heard the parties and gone through the record of the case. 7. Since it is quite apparent from the pleadings adduced on record by the respective parties, especially reply filed by the 2025:HHC:33399 4 respondents that amount, sought to be recovered through impugned recovery notice, was not received by the petitioner on her misrepresentation, rather respondents themselves, at the time of promotion of the petitioner, wrongly fixed her pay @ ₹4850/- instead of 4550/-, coupled with the fact that petitioner now stands retired, no ₹ recovery is permissible. 8. Hon’ble Apex Court in Rafiq Masih (supra) has categorically held that recovery from Class-III and Class-IV employee is wholly impermissible, especially after retirement. Moreover, amount sought to be recovered never came to be received by the petitioner on account of misrepresentation or fraud. Legal position as detailed hereinabove is not disputed by learned counsel representing the respondent. Relevant para of the afore judgment reads as under: “12. 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 2025:HHC:33399 5 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. 13. We are informed by the learned counsel representing the appellant- State of Punjab, that all the cases in this bunch of appeals, would undisputedly fall within the first four categories delineated hereinabove. In the appeals referred to above, therefore, the impugned orders passed by the High Court of Punjab and Haryana (quashing the order of recovery), shall be deemed to have been upheld, for the reasons recorded above.” 9. Learned Counsel for the petitioner, while relying upon the judgment passed by the Hon’ble Apex Court in Civil appeal No.7115 of 2010 titled as Thomas Daniel v. State of Kerala, submitted that although the Kerala High Court had directed recovery of the excess amount from the Death-cum-Retirement Gratuity (DCRG) of the appellant, but Hon’ble Apex Court, after considering various precedents, overruled this view and held that recovery from the appellant is impermissible in the absence of any misrepresentation or fault on the part of the employee. Drawing the same analogy, this Court is of the considered view that amount sought to be recovered from the petitioner cannot be recovered, particularly in view of the fact that the petitioner has already retired from service. 10. Consequently, in view of the above as well as law taken into consideration, this Court finds merit in the present petition and accordingly, same is allowed. Impugned recovery notice dated 2025:HHC:33399 6 03.07.2025 (Annexure P-4) is quashed and set aside. Amount, if any, recovered pursuant to afore recovery notice shall be refunded to the petitioner forthwith with up-to-date interest. Pending application(s), if any, also stands disposed of. p` (Sandeep Sharma), Judge September 25, 2025 (Rajeev Raturi)