2025:CGHC:16566 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.(S) No. 6477 of 2022 Ujiyar Singh Kulmitra S/o Tungan Ram Kulmitra Aged About 62 Years Retired Head Master (Middle School R/o Ward No. 15, Opposite Gayatri Mandir, Lormi, District Mungeli Chhattisgarh) ---- Petitioner Versus 1 - State Of Chhattisgarh Through The Secretary, Department Of School Education, Mantralaya, Mahanadi Bhawan, Atal Nagar, Naya Raipur District Raipur Chhattisgarh 2 - Director Directorate Of Public Instruction, Raipur District Raipur Chhattisgarh 3 - Accountant General Chhattisgarh Raipur, District Raipur Chhattisgarh 4 - Divisional Joint Director Treasury, Account And Pension, Bilaspur Division, District Bilaspur Chhattisgarh 5 - District Treasury Officer Bilaspur District Bilaspur Chhattisgarh 6 - District Education Officer Bilaspur, District Bilaspur Chhattisgarh 7 - Block Education Officer Takhatpur, District Bilaspur Chhattisgarh Respondents For Petitioner : Shri Govind Dewangan, Advocate. For Respondent No. 1,2,4,5,6 & 7/State : Shri Vedant Shadangi, P.L. For Respondent No.3 : Shri Ashish Gupta, Advocate appeared on behalf of Shri Ashwin Shukla, Advocate. Hon'ble Shri Justice Sachin Singh Rajput Order on Board 12/11/2025 1. This writ petition has been filed by the petitioner seeking for the following relief : (10.1) That, this Hon'ble Court may kindly be pleased to call for the entire records in relates to the case of the petitioner from the possession of respondents for its kind perusal. (10.2)That, this Hon'ble Court may kindly be pleased to quash the impugned and arbitrary action on the part of ASHISH TIWARI Digitally signed by ASHISH TIWARI Date: 2025.11.19 11:14:30 +0530 -2- the respondents, whereby the respondents authority have been recovered the excess amount from the petitioner to the sum of Rs. 1,58,322/- in the gratuity amount payable to him. (10.3) That, this Hon'ble Court may kindly further be pleased to direct the respondents to return back the entire amount to the sum of Rs. 1,58,322/-to the petitioner which has been recovered/adjusted from gratuity amount payable to the petitioner. (10.4) That, this Hon'ble Court may kindly be pleased to grant any other relief/relief's in favour of the petitioners, which the Hon'ble Court deemed it & just in the facts and circumstances of the case, including awarding of the costs to the petitioner. 2. Learned counsel for the petitioner submits that the petitioner was initially appointed in the year-1982 on the post of Assistant Teacher in the Department of School Education and since then he worked with School Education Department till retirement of service. Petitioner was due to retire on 30/06/2022 and prior to 02 days of his retirement a recovery order Annexure P/1 dated 28/06/2022 was issued thereby the respondent have directed that an excess payment of Rs.158322/- was made to the petitioner as a result of wrong fixation of his pay scale from the period from 04/01/2006 to 09/03/2017. The said amount was recovered from the retrial due of the petitioner. He submits that though the petitioner was retired from the post of Head Master. However, the impugned notice (Annexure-P/1) was issued 02 days prior to his retirement and recovery of the alleged excess payment from the period of 04/01/2006 to 09/03/2017 i.e. excess of five years prior to his retirement. 3. He submits that the case of the petitioner squarely falls in the law laid down by the Hon’ble Supreme court in case of State of Punjab Vs. Rafiq Masih, (2015) as under :- “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 here-in-above, we may, -3- 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.” 4. Shri Dewangan, Advocate further submits that the requirement of submission of undertaking by the employee has to be provided under the Rules which was exactly the position in the matter before this and order passed by the Division Bench of this Court in W.A. No. 376/2019 (State of Chhattisgarh & Ors. Vs. Pramila Mandavi) is applicable in the case in hand. Therefore, he submits that impugned notice (Annexure P/1) be quashed and the excess payment recovered from the retrial dues of the petitioner may be directed to be refunded back. 5. Per contra learned counsel for the respondents submits that the petitioner is a Class-II - Gazetted Officer. Therefore, the law laid down by the Hon’ble Supreme Court in case of Rafiq (Supra) would not be applicable. In case in hand, they further submits that the impugned recovery notice was already issued prior to his retirement, therefore it is not a case that a recovery is made after his retirement. Therefore, this writ petition may be dismissed. 6. Heard learned counsel for the parties and peruse the record. 7. The case in hand that the petitioner was supposed to retire on 30/06/2022; Annexure P/1 was issued two days prior to his retirement. Perusal of it and the -4- documents appended in the writ petition goes to shows that the said amount of Rs.158322/- in lieu of the excess payment was paid to the petitioner in the wrong fixation of his pay scale from the period 04/01/2006 to 09/03/2017. 8. In the opinion of this Court as the said notice was issued by the respondent two days before retirement of the petitioner and recovery is alleged to be made on prior to more that five years of his retirement. Therefore, in the opinion of this Court they cannot be sustained in light of judgment of Hon’ble Supreme Court in case of Rafiq Masih (supra). As a result, Annexure P/1 is quashed. If any amount is recovered from the petitioner, it would be refunded back to him within a period of 60 days from the date of receipt of copy of this order, failing which it will carry interest at the rate of 6% from the date of recovery till actual payment. 9. With these observation and direction, this writ petition is allowed. Sd/- Sd/- Sd/- (Sachin Singh Rajput) Judge Ashish