1 2025:CGHC:59545 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 3793 of 2023 1 - Kaushal Verma D/o Lt. Sh. R.P. Verma Aged About 56 Years Posted As Nursing Sister, Community Health Centre, Ambagarh Chowki, Distt. Mohla-Manpur- Ambagarh Chowki Chhattisgarh ... Petitioner(s) versus 1 - The State Of Chhattisgarh Through The Secretary, Department Of Health And Family Welfare, Mantralaya, Mahanadi Bhawan, Atal Nagar, New Raipur, District Raipur Chhattisgarh 2 - Director Health Services, Directorate, Old Nurses Hostel, Dks Bhawan, Raipur Chhattisgarh 3 - Block Medical Officer, Community Health Centre, Ambagarh Chowki, Distt. Mohla-Manpur-Ambagarh Chowki Chhattisgarh ... Respondent(s) (Cause-title is taken from Case Information System) For Petitioner : Mr. Ravitosh Kale, Advocate appearing on beahlf of Mr. Rahul Tamaskar, Advocate For State : Mr. Hariom Rai, Panel Lawyer SB- Hon'ble Shri Justice Amitendra Kishore Prasad Order on Board 08/12/2025 1. The petitioner has filed this writ petition seeking following reliefs :- “10.1. The Hon'ble Court may kindly be pleased to quash the impugned order dated 31.03.2023 Annexure P/1 and direct the Respondent authorities not to make any recovery from the petitioner for alleged excess payment made by the concerned authorities. Digitally signed by SHAYNA KADRI 2 10.2. The Hon'ble Court may kindly be pleased to direct the respondent authorities to grant the benefit of advance increment and its arrears as per the circular Annexure P/2. 10.3. Any other relief, which this Hon'ble Court deems fit and proper, may also be awarded to the Petitioner including the cost of the petition.” 2. The facts of the case, as emerging from the record, are that the petitioner was appointed to the post of Staff Nurse vide order dated 02.05.1990 and joined her duties on 27.06.1990 after completing a diploma in General Nursing and Midwifery. She is presently serving as a Nursing Sister at CHC, Ambagarh Chowki, District Mohla-Manpur- Ambagarh Chowki (C.G.). Under the policy of the erstwhile State of Madhya Pradesh, three advance increments were admissible to diploma-holder health workers and four increments to degree-holder staff nurses, with the benefit also extended to those appointed between 01.04.1981 and 10.09.1985, as per order dated 11.09.1985 (Annexure P/2). This policy was subsequently adopted by the State of Chhattisgarh vide order dated 27.05.2003, reiterating the same benefit (Annexure P/3), and later further clarified and superseded by order dated 05.01.2008 (Annexure P/4). Thereafter, certain confusion persisted regarding the entitlement of staff nurses appointed after 1985, prompting correspondence between departments, including letters dated 15.12.2016 and 12.06.2017 (Annexure P/5). In accordance with the 2008 order, the petitioner, being a diploma holder, was granted three advance increments. However, by the impugned order dated 31.03.2023 (Annexure P/1), the authorities directed recovery of the alleged excess amount paid, without granting the 3 petitioner any prior notice or opportunity of hearing and after more than five years of the grant of benefit, despite there being no fraud or misrepresentation on her part as a Class-III employee. The recovery was ordered based on a clarification issued by the OSD of the Finance Department dated 05.08.2014 (Annexure P/6), though such an opinion does not override the policy decisions of the State issued through statutory circulars. No amount has yet been recovered from the petitioner, who has therefore filed the present petition challenging the impugned recovery order. 3. Learned counsel for the petitioner submits that the impugned order directing recovery is wholly unsustainable as it has been passed in flagrant violation of the principles of natural justice, without issuing any notice or affording the petitioner an opportunity of hearing. It is argued that any alleged excess payment was not a result of fraud, misrepresentation or any act attributable to the petitioner; rather, it was made pursuant to clear and prevailing administrative instructions in force at the relevant time. The petitioner, being a Class-III employee, would suffer grave financial hardship if recovery is permitted after an inordinate lapse of more than five years. It is further contended that the issue is no longer res integra and is squarely covered by the judgment of the Hon’ble Supreme Court in State of Punjab v. Rafiq Masih, wherein the Court has categorically held that recovery from Class-III/IV employees, or where excess payment has continued for more than five years, is impermissible in law and would be iniquitous, harsh and arbitrary. Hence, the impugned order deserves to be quashed. 4. Learned State counsel, opposing the petition, submits that the claim of the petitioner is wholly misconceived and devoid of merit. It is argued 4 that the petitioner was appointed as a Staff Nurse on 02.05.1990, long after the cut-off date of 01.01.1986, which is the crucial threshold under the circular dated 05.01.2008 governing the grant of advance increments. The learned counsel contends that the benefit of 3 or 4 advance increments was available only to diploma and degree holder Staff Nurses appointed prior to 01.01.1986, and therefore the petitioner, having joined service on 27.06.1990, was never legally entitled to such benefit. It is further submitted that the petitioner obtained the advance increments despite being fully aware of her ineligibility, and consequently her pay was wrongly fixed, resulting in excess payment which the State is entitled to recover. The State counsel also submits that the principles of natural justice are not violated merely because no prior notice was issued, as issuance of notice would have been an empty formality where the petitioner’s ineligibility under the policy is undisputed. Reliance on State of Punjab v. Rafiq Masih is stated to be misplaced, as the case pertains to bona fide excess payments, whereas in the present case the increments were erroneously granted contrary to clear policy restrictions. It is thus asserted that the impugned order directing recovery is lawful, proper, and free from infirmity, and that the petition deserves to be dismissed. 5. I have heard the learned counsel for the parties at length and carefully perused the documents placed on record with utmost circumspection. 6. Two linked aspects determine the outcome of this petition. Firstly, whether, as a matter of law and administration, the respondents were entitled to recover the amounts they now claim and whether the manner and timing of the impugned order offend the principles of 5 natural justice and established equitable doctrine. 7. On the first aspect, the material shows that the grant of the advance increments to the petitioner was made pursuant to administrative orders and clarifications which were in circulation and which the administration itself applied when fixing her pay. The subsequent issuance of an “opinion” or clarification by a Finance Officer (or OSD) cannot, in my view, have the effect of retroactively nullifying the earlier executive action in such a manner as to penalize a Class–III employee who received salary in good faith for many years. The respondents themselves treated the matter as one susceptible of administrative ambiguity for years, which confirms that the scheme was not a straightforward case of deliberate overpayment by the employee. 8. On the second aspect, the impugned order was passed after a very long lapse of time, more than five years from the date when the increments were drawn, and without issuing any show-cause notice or affording the petitioner a hearing. It is a well-settled principle of administrative law that the doctrine of legitimate expectation and the duty to act fairly require that where an employee has been paid sums under an administrative order and has continued to draw and rely upon that pay, retrospective recovery cannot be effected without at least notice, an opportunity to be heard and clear reasons. The absence of any such procedure in the present case is a fatal procedural infirmity. 9. Hon'ble Supreme Court in the case of State of Punjab and Ors. Vs. Rafiq Masih (White Washer) and Ors., reported in (2015) 4 SCC 334 while considering the recovery of excess payment made to the employees observed thus 6 “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, 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 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. In the above judgment, Hon'ble Supreme Court has held that recovery from the employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service) is impermissible in law. 11.Relying upon the decision in the case of Rafiq Masih (supra), Hon'ble Supreme Court in the case of Thomas Daniel Vs. State of Kerala & Ors., reported in (2022) SCC OnLine SC 536 has further held that recovery from the employees after long time to be unjustified. 7 12. The facts of the present case fall squarely within the protective umbrella of that precedent. The petitioner is a Class–III employee, the alleged excess payment has subsisted for many years, and there is no charge of deliberate wrongdoing or deception by the petitioner. The State’s submission that the petitioner was never legally entitled to the benefit because her appointment post-dates the cut-off in earlier circulars overlooks two realities: (i) the administrative practice and subsequent clarificatory orders were applied to fix pay in the petitioner’s case; and (ii) even if there were an arguable legal infirmity in the original sanction, equitable and procedural safeguards require that the administration must proceed in accordance with law, by giving notice, affording hearing, explaining the factual and legal basis for recovery, and assessing hardship, before seeking to recoup salaries paid long ago. None of that occurred here. 13. For these reasons the impugned order cannot be permitted to stand. Equity and public law demand that the State should not, by summary administrative fiat after many years, attempt to unsettle finalized pay and to saddled a rank-and-file employee with retrospective liability in the absence of due process. 14. In view of the above, the writ petition is allowed. The impugned order dated 31.03.2023 (Annexure P/1) is quashed and set aside. 15. The respondents are restrained from effecting any recovery from the petitioner on account of alleged excess payment. However, the respondents shall be at liberty to undertake the process of revising/rectifying the pay fixation of the petitioner prospectively, strictly in accordance with law and after affording him due opportunity of 8 hearing. 16. It is made clear that if any recovery has already been made from the petitioner pursuant to the impugned order, the same shall be refunded to him within a period of three months from the date of production of certified copy of this order. There shall be no order as to costs Sd/- (Amitendra Kishore Prasad) Shayna JUDGE