IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1643 of 2025 Date of Decision: 11.12.2025 _____________________________________________________________________ Chaman Singh ……...Petitioner Versus State of Himachal Pradesh & Ors. …....Respondents Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. Bodh Raj Thakur, Advocate. For the respondents: Mr. Anup Rattan, Advocate General, Mr. Rajan Kahol, Additional Advocate General and Mr. Anish Banshtu, Deputy Advocate General, for respondents/State. Mr. Karun Negi, Advocate, for respondent No.5. ___________________________________________________________________________ Sandeep Sharma, J. (Oral) Petitioner herein, who was a Class-III employee and has superannuated from the post of Head Teacher, GPS Lohani, Education Block Salooni, District Chamba, Himachal Pradesh on 31.1.2023, is aggrieved by recovery of Rs. 44,600/- from his bank account on account of alleged excess payment received by him during his service career. 2. Precisely, facts of the case as emerge from pleadings adduced on record by the respective parties are that petitioner herein was appointed as Voluntary Teacher w.e.f. 4.3.1992 and thereafter, his services were regularized as JBT teacher on 1.8.1998. On 18.8.2021, petitioner was promoted to the post of Head Teacher and 2 was posted at GPS Lohani, Education Block Salooni, District Chamba, Himachal Pradesh. After his having rendered more than 20 years of service, petitioner ultimately retired on 31.1.2023, after his having attained age of superannuation. Vide e-challan dated 20.6.2023, sum of Rs. 44,600/-, came to be recovered from the bank account of the petitioner on account of alleged excess payment received by him during his service tenure. 3. In nutshell, case of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Bodh Raj, learned counsel for the petitioner is that since amount otherwise sought to be recovered from the petitioner after his retirement was never received by him on account of misrepresentation or fraud, rather same was given to him on account of his placement as Head Teacher, there was no occasion, if any, for the respondents to recover the afore amount. In support of his claim, Mr. Bodh Raj, learned counsel, placed heavy reliance upon judgment rendered by the Hon’ble Apex Court in State of Punjab and Ors v. Rafiq Masih (2015) 4 SCC 334 (2), wherein it has been categorically held that recovery from Class-III and IV employees is wholly impermissible, especially after retirement. 4. Pursuant to notices issued in the instant proceedings, respondent-State has filed reply, wherein it has been submitted that as per Himachal Pradesh Civil Services (Revised Pay) Rules, 2022 (in short the “Rules”), the pay scale of JBTs is identical/same in the pay 3 matrix and hence benefit of FR 22(1)a(i) is not available to those Head Teachers who are promoted on or after 1.1.2016. Since benefit of FR22(1)a(1) was granted to the petitioner on 19.8.2021 before notification of the Rules, which are effective from year 2016, same was rightly withdrawn and one increment has been reduced, as a result thereof, recovery of amount of Rs. 44,600/- was made from the petitioner and deposited in the treasury vide challan dated 20.6.2023. 5. Mr. Rajan Kahol, learned Additional Advocate General, vehemently argued that amount otherwise sought to be recovered was never payable to the petitioner and as such, no illegality can be said to have been committed by the respondents while effecting recovery qua the same. In support of his aforesaid submission, Mr. Kahol placed reliance upon the judgment dated 17.8.2012 passed by the Hon’ble Apex Court in Chandi Prasad Uniyal and Ors. v. State of Uttarakhand and Ors., wherein it came to be ruled that any amount received/paid without authority of law can always be recovered barring few exceptions of extreme hardships, but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. 6. Besides above, it is also argued at the behest of the respondents that petitioner himself at the time availing the benefit of FR22(1)a(1) had furnished an undertaking that he shall refund the over payment, if found or pointed out by the audit in lump sum. 4 7. Having heard learned counsel for the parties and perused material available on record, this Court is persuaded to agree with Mr. Bodh Raj, learned counsel for the petitioner that amount otherwise sought to be recovered from the petitioner was not granted/paid to the petitioner on his misrepresentation, rather respondents themselves revised the pay of the petitioner on account of his placement against the post of Head Teacher. As a matter of fact revision of pay of the petitioner was done as per Rules and department itself revised the pay of the petitioner and granted promotional benefits at the time of placement of the petitioner to the post of Head Teacher. After his retirement, sum of Rs.44,600/-, is sought to be recovered on the ground that afore amount was not payable to the petitioner. 8. Since it is apparent from the reply filed by the respondents that amount otherwise sought to be recovered was not received by the petitioner on account of his misrepresentation, rather same was received by him pursuant to orders passed by the respondents, action of respondents No.1 to 4 in recovering the aforesaid amount from the petitioner cannot be said to be justifiable and as such, needs to be rectified in accordance with law. 9. No doubt, in Chandi Prasad Uniyal (supra), Hon’ble Apex Court has held that any amount paid, received without authority of law, is required to be recovered, but after passing of aforesaid judgment, Hon’ble Apex Court in Rafiq Masih’s case (supra), has laid 5 down certain exceptions under which amount, if any, received in excess cannot be recovered. It has been categorically held in the aforesaid judgment that no amount can be recovered from Class-III and IV employees after the retirement. 10. Issue regarding recovery has been decided by Hon’ble Division Bench of this Court vide judgment dated 24.3.2022 passed in CWPOA No. 3145 of 2019, titled S.S. Chaudhary v. State of Himachal Pradesh and Ors. wherein after taking into consideration entire law on the subject, Hon’ble Division Bench of this Court has laid down following parameters, where recovery would be permissible/impermissible from the employee, Paragraph 35 whereof reads as under:- “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 6 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 be 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 ClassI/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 ClassIII 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 guidelines 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.” 11. At this stage, it would be apt to refer to the judgment rendered by Hon’ble Supreme Court in Thomas Daniel v. State of Kerala and Ors. 2022 AIR (SC) 2153, decided on 2.5.2022, wherein it has been held as under:- “(9) This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or 7 allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess. (10) In Sahib Ram v. State of Haryana and Others this Court restrained recovery of payment which was given under the upgraded pay scale on account of wrong construction of relevant order by the authority concerned, without any misrepresentation on part of the employees. It was held thus : “5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on the revised scale. However, it is not on account of any 1 1995 Supp (1) SCC 18 misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.” 8 (11) In Col. B.J. Akkara (Retd.) v. Government of India and Others2 this Court considered an identical question as under: “27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 76 1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] , Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652] ): (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular 2 (2006) 11 SCC 709 interpretation of rule/order, which is subsequently found to be erroneous. 28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the 9 excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery. 29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to inservice employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 761999 till the issue of the clarificatory circular dated 11- 92001. Insofar as any excess payment made after the circular dated 1192001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made.” (12) In Syed Abdul Qadir and Others v. State of Bihar and Others3 excess payment was sought to be recovered which was made to the appellants teachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The appellants therein 10 contended that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellants cannot be held responsible in such a situation and recovery of the excess payment should not be ordered, especially when the employee has subsequently retired. The court observed that in general parlance, recovery is prohibited by courts where there exists no misrepresentation or fraud on the part of the employee and when the excess payment has been made by applying a wrong interpretation/ understanding of a Rule or Order. It was held thus: “59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of 11 the amount that has been paid in excess to the appellant teachers should be made.” (13) In State of Punjab and Others v. Rafiq Masih (White Washer) and Others4 wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and 4 (2015) 4 SCC 334 disallowed the same, exempting the beneficiary employees from such recovery. It was held thus: “8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. xxx xxx xxx 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, 12 based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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.” (14) Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General. (15) Having regard to the above, we are of the view that an attempt to recover the said increments after passage of ten years of his retirement is unjustified.” 13 12. Consequently, in view of the above, present petition is allowed and impugned action of the respondents in recovering the amount is held to be bad in law and as such, E-challan dated 20.6.2023 (Annexure P-1) is quashed and set-aside and respondents are directed to refund the aforesaid amount to the petitioner expeditiously, preferably, within four weeks. 13. In the aforesaid terms, present petition is disposed of alongwith pending applications, if any. December 11, 2025 (Sandeep Sharma), Manjit Judge