1Whether reporters of Local Papers may be allowed to see the judgment? Yes IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.98 of 2023 Date of decision: 11.07.2025 Dinesh. ...Petitioner. Versus State of H.P. & Ors. ...Respondents. Coram: Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting? For the petitioner : Mr. Parkash Sharma, Advocate. For the respondents : Ms. Leena Guleria, Deputy Advocate General. Jyotsna Rewal Dua, Judge CMP-15632 of 2025 Application for early hearing is allowed and to stand disposed of. CWP-98 of 2023 Petitioner feels aggrieved by the decision of the respondent-Education Department, as communicated to him vide office letter dated 31.12.2022 (Annexure P-3), ordering recovery of an amount of ₹78,929/-, allegedly paid in excess to him w.e.f. 01.03.2013 on account of incorrect pay fixation. 2. The petitioner was appointed as a Junior Basic Teacher (Class-III) on 28.02.2009 in the pay scale of ₹4550– 7220/- along with usual allowances. The respondent-State -2- revised the pay scales of certain categories of its employees in the year 2012, and the petitioner’s pay scale was also revised accordingly. On the basis of the revised scale, increments were granted to the petitioner in the year 2013. However, on 31.12.2022, the respondents communicated to the petitioner that an amount of ₹78,929/- had been overpaid to him, and directed him to deposit the said amount either in lump sum or in installments. The reason assigned for such overpayment was the alleged incorrect fixation of the petitioner’s pay on 01.03.2013. Feeling aggrieved petitioner has preferred this writ petition seeking following substantive relief:- “(i). That the impugned order dated 31.12.2022, Annexure P-3, issued by the respondents whereby ordered recovery of Rs.78929/- from the petitioner may kindly be quashed and set aside, with all consequential benefits.” 3. Vide order dated 06.01.2023 passed in the matter, operation of impugned recovery notice dated 31.12.2022 (Annexure P-3) was stayed. 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 1 (2015) 4 SCC 334 (2) -3- to Class-III and Class-IV services, where payments have 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, 2 (2012) 8 SCC 417 -4- 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. (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 3 SLP(C) No(s). 5918/2024 decided on 04.04.2024 -5- rule or incorrect calculation on the part of the employer is not recoverable. In view of above well-settled principles, recovery from the petitioner on account of error made by the respondents cannot be allowed. Petitioner is a Class-III employee. Ordering recovery from him would otherwise be inequitable and harsh upon him. This writ petition is therefore allowed. Recovery notice dated 31.12.2022 (Annexure P-3) issued by the respondents is quashed and set aside. Pending miscellaneous application(s), if any, to also stand disposed of. Jyotsna Rewal Dua 11th July, 2025 Judge (Pardeep)