[2025:RJ-JP:48635-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Special Appeal Writ No. 809/2025 1. Jaipur Vidhyut Vitran Nigam Limited, Vidyut Bhawan, Jyoti Nagar, Jaipur Through Its Managing Director. 2. The Secretary (Administration), Jaipur Vidyut Vitran Nigam Ltd., Vidyut Bhawan, Jyoti Nagar, Jaipur 3. The Account Officer (Ea), Jaipur Vidyut Vitran Nigam Ltd., Shed No. 1, Old Power House, Banipark, Jaipur. ----Appellants Versus Rajendra Kumar Vijay Son Of Shri Gopal Vijay, Aged About 66 Years, Resident Of 84/20, Aravali Path, Mansarovar, Jaipur. ----Respondent For Appellant(s) : Mr. Ritwick Dave For Respondent(s) : HON'BLE MR. JUSTICE INDERJEET SINGH HON'BLE MR. JUSTICE RAVI CHIRANIA Order 01/12/2025 Learned counsel for the appellants fairly submits that the issue involved in this appeal has already been considered and decided by the Co-ordinate Bench of this Court in the matter of Jaipur Vidyut Vitran Nigam Limited, Jaipur & Anr. Vs. Udai Ram Verma (D.B. Special Appeal Writ No.467/2025), wherein, on 04.11.2025, the following order was passed:- “1. Learned counsel assails the order passed by the learned Single Judge whereby, the recovery sought to be made against the writ petitioners was set aside and relying on the judgment passed in State of Punjab & Ors. Vs. Rafiq Masih & Ors. (White Washer) reported in (2015) 4 SCC 334, it was held as under:- [2025:RJ-JP:48635-DB] (2 of 10) [SAW-809/2025] “10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court Under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India. 11. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters. (i). Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar MANU/SC/8491/2008 : (2009) 3 SCC 475, wherein this Court recorded the following observation in paragraph 58: 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in [2025:RJ-JP:48635-DB] (3 of 10) [SAW-809/2025] excess. See Sahib Ram v. State of Haryana MANU/SC/0848/1995 : 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India MANU/SC/0654/1994 : (1994) 2 SCC 521, Union of India v. M. Bhaskar MANU/SC/1156/1996 : (1996) 4 SCC 416, V. Ganga Ram v. Director MANU/SC/0746/1997 : (1997) 6 SCC 139, Col. B.J. Akkara (Retd.) v. Govt. of India MANU/SC/4389/2006 : (2006) 11 SCC 709, Purshottam Lal Das v. State of Bihar MANU/SC/4407/2006 : (2006) 11 SCC 492, Punjab National Bank v. Manjeet Singh MANU/SC/8807/2006 : (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur (2000) 10 SCC 99. (Emphasis is ours) First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and [2025:RJ-JP:48635-DB] (4 of 10) [SAW-809/2025] shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee. In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India MANU/SC/0654/1994 : (1994) 2 SCC 521, wherein this Court observed as under: 11. Although we have held that the Petitioners were entitled only to the pay scale of Rs. 330- 480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they have received the scale of Rs. 330- 560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the Petitioners due to the fault of the Respondents, the Petitioners being in no way responsible for the same. (Emphasis is ours) It is apparent, that in Shyam Babu Verma's case (supra), the higher pay-scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of [2025:RJ-JP:48635-DB] (5 of 10) [SAW-809/2025] the pay-scale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India. (ii). Examining a similar proposition, this Court in Col. B.J. Akkara v. Government of India MANU/SC/4389/2006 : (2006) 11 SCC 709, observed as under: 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 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. (Emphasis is ours) A perusal of the aforesaid observations made by this Court in Col. B.J. Akkara's case (supra) reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from employees in lower rung of service, would result in [2025:RJ-JP:48635-DB] (6 of 10) [SAW-809/2025] extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e., Class-III and Class-IV-sometimes denoted as Group 'C' and Group 'D') of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India. (iii). This Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows: 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 [2025:RJ-JP:48635-DB] (7 of 10) [SAW-809/2025] the Appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the Appellant teachers should be made. (Emphasis is ours) Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation. (iv). Last of all, reference may be made to the decision in Sahib Ram Verma v. Union of India MANU/ [2025:RJ-JP:48635-DB] (8 of 10) [SAW-809/2025] SC/0848/1995 : (1995) Supp. 1 SCC 18, wherein it was concluded as under: 4. Mr. Prem Malhotra, learned Counsel for the Appellant, contended that the previous scale of Rs. 220-550 to which the Appellant was entitled became Rs. 700-1600 since the Appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any force in this contention. It is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges to Rs. 700- 1600 but they insisted upon the minimum educational qualification of first or second class M.A., M. Sc., M. Com. plus a first or second class B. Lib. Science or a Diploma in Library Science. The relaxation given was only as regards obtaining first or second class in the prescribed educational qualification but not relaxation in the educational qualification itself. 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 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. (Emphasis is ours) It would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs. 700-1600. The above pay parity would extend to Librarians, subject to the condition that [2025:RJ-JP:48635-DB] (9 of 10) [SAW-809/2025] they possessed the prescribed minimum educational qualification (first or second class M.A., M. Sc., M. Com. plus a first or second class B. Lib. Science or a Diploma in Library Science, the degree of M. Lib. Science being a preferential qualification). For those Librarians appointed prior to 3.12.1972, the educational qualifications were relaxed. In Sahib Ram Verma's case (supra), a mistake was committed by wrongly extending to the Appellants the revised pay scale, by relaxing the prescribed educational qualifications, even though the concerned Appellants were ineligible for the same. The concerned Appellants were held not eligible for the higher scale, by applying the principle of "equal pay for equal work". This Court, in the above circumstances, did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post.” 2. Learned counsel submits that in view of the judgment passed in the case of High Court of Punjab & Haryana & Ors. Vs. Jagdev Singh (Civil Appeal No.3500/2006), the respondents could not object to the recovery being made even after their retirement. 3. We find that the view as expressed has been again considered at length by the Hon’ble Supreme Court in the case of Thomas Daniel Vs. State of Kerala & Ors. (2022) SCC online SC 536 wherein, it has been held as under:- “16. In the result, the appeal succeeds and is accordingly allowed. The Judgment and order of the Division Bench dated [2025:RJ-JP:48635-DB] (10 of 10) [SAW-809/2025] 02.03.2009 and also of the learned Single Judge of the High Court dated 05.01.2006 impugned herein, and the order dated 26.06.2000 passed by the Public Redressal Complaint Cell of the Chief Minister of Kerala and the recovery Notice dated 09.10.1997 are hereby set aside. There shall be no order as to costs.” 4. The said judgment was again followed by the Hon’ble Supreme Court in the case Jogeswar Sahoo & Ors. Vs. The District Judge, Cuttack & Ors., wherein, the law laid down in Thomas Daniel (supra) was reiterated and the recoveries were quashed. 5. Keeping in view the settled law as laid down by the Hon’ble Supreme Court in the recent judgment passed in Jogeswar Sahoo (supra) on 04.04.2025 as well as Thomas Daniel (supra), we find no reason to entertain this appeal. The order passed by the learned Single Judge is upheld. 6. The appeal is dismissed. 7. All pending applications shall stand disposed of.” In that view of the matter, the present appeal stands dismissed in view of the judgment passed by the Co-ordinate Bench of this Court in the matter of Jaipur Vidyut Vitran Nigam Limited (supra). (RAVI CHIRANIA),J (INDERJEET SINGH),J Upendra Pratap Singh /53