HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 857 of 2022 Girish Chandra @ Girish Chandra Pandey ...Petitioner Versus State of Uttarakhand and others ….Respondents Present: Mr. Harshit Sanwal, Advocate for the petitioner. Mr. N.S. Pundir, D.A.G. for the State. Hon’ble Ravindra Maithani, J.(Oral) By means of instant petition, the petitioner has sought the following reliefs:- “(i) Issue an appropriate writ order or direction in the nature of certiorari quashing the letter No.1993 dated 09.07.2021, issued by the respondent no.2 in so far as it directed for recovery of the excess payment made to the petitioner (Annexure No.1); (ii) Issue an appropriate writ order or direction in the nature of certiorari quashing the Office Memo No. 538 dated 4.5.2022 (Annexure No.2) and letter No. 539 dated 04.05.2022 issued by the Respondent No.3, (Annexure 3) towards the recovery of the excess payments made to the petitioner. (iii) Issue an appropriate writ order or direction in the nature of mandamus with direction to the Respondents to make payment of the amount, along with interest, which may 2 have been recovered pursuant to the impugned order dated 4.5.2022; (iv) Award the cost of the petition to the petitioner.” 2. Heard learned counsel for the parties and perused the record. 3. It is the case of the petitioner that he retired from the post of Tube-well Operator, the Class IVth post on 31.12.2020. His services were clean. In the entire service period, there was no issue with regard to any excess payment to the petitioner. But suddenly, on 04.05.2022, the respondent no.3 issued an order directing the petitioner to deposit Rs.1,33,845/- on the ground is that on 01.01.2009, when the salary of the petitioner was re-fixed, it was wrongly re-fixed. 4. State has filed its counter affidavit. According to it, the petitioner was not entitled to any increment on 01.07.2009 as he had already been paid increment on 01.01.2009, therefore, the extra amount is proposed to be recovered so as to save the tax payers’ money. 5. Learned counsel for the petitioner would submit that the petitioner has not misrepresented anything. He 3 retired as a Group IV employee. For an increment which was allegedly given to him from 11 years prior to his retirement, recovery cannot be initiated now. He would refer to the principles of law, as laid down by the Hon’ble Supreme in the case of State of Punjab and others Vs. Rafiq Masih and others, (2015) 4 SCC 334. 6. In the case of Rafiq Masih (supra), the Hon’ble Supreme Court culled up the principles with regard to the recovery from the employees and in para 18 observed as follows:- “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 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. 4 (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.” 7. Learned State counsel would submit that due to mistake excess payment has been made, which is sought to be recovered. 8. The Court posed a pointed question to learned counsel for the State as to whether, under the facts and circumstances of this case, in view of the principles, laid down by the Hon’ble Supreme Court in the case of Rafiq Masih (supra), such recovery can be made? 9. Learned State counsel would submit that the petitioner has not ever misrepresented. 10. The petitioner had retired on 31.12.2020. Now, what is sought to be recovered is that he was paid extra increment in the month of July, 2009. Admittedly, the petitioner did not misrepresent or did not commit any fraud. The recovery is sought to be made almost after two years of his retirement. In view of the judgment passed in 5 the case of Rafiq Masih (supra), such recovery cannot be made. Accordingly, the writ petition deserves to be allowed. 11. The writ petition is allowed. 12. Impugned orders are quashed. (Ravindra Maithani, J.) 18.03.2025 Jitendra