1Whether reporters of Local Papers may be allowed to see the judgment? Yes IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1712 of 2023 Date of decision: 31.07.2025 Kuldeep Chand Chadda. ...Petitioner. Versus State of Himachal Pradesh & Ors. ...Respondents. Coram: Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting? For the petitioner : Mr. R.K. Dogra and Mr. S.P. Chatterji, Advocates. For the respondents : Ms. Leena Guleria, Deputy Advocate General. Jyotsna Rewal Dua, Judge Relying upon Inder Singh vs. State of Himachal Pradesh & Ors.1, Harinder Paul Behal vs. State of Himachal Pradesh & Ors.2 and Shyama Nand vs. State of HP & Ors.3, petitioner, a retired employee, seeks refund of the amount recovered from him by the employer, terming it as an inadvertent excess payment. 2. Heard learned counsel for the parties and considered the case file. 3. The case. 3(i). Petitioner was appointed as Group Instructor in the respondent-Technical Education Department on ad hoc 1 CWP No.3198 of 2020 decided on 14.07.2022. 2 CWPOA No.7452 of 2020 decided on 29.07.2022. 3 CWPOA No.7203 of 2020 decided on 24.07.2024. -2- basis on 28.11.1985. His services were regularized on 04.03.1995. The petitioner was promoted as Principal on 01.11.1999. He superannuated from service on 30.11.2020 after rendering about 35 years of service. 3(ii). Paras Ram vs. State of Himachal Pradesh & Anr.4 directed the respondents to count the ad hoc service rendered by the petitioner therein before his regularization for the purpose of annual increments. On the basis of aforesaid decision, Neera Sharma vs. State of H.P. & Ors.5 was disposed of with directions to the respondents to consider the case of the petitioner therein and if found similar, to give her similar treatment as given to Paras Ram. 3(iii). As per the reply filed by the respondents, the Government took a decision on 15.03.2011 to count ad hoc services rendered by all similarly situated officials, including the present petitioner, before regularization, for the purpose annual increments and pensionary benefits with a rider that those, who had moved the Court for counting the ad hoc service towards increments would be granted financial benefits for a period of three years prior to institution of the petitions and in rest of the cases notional benefits will be granted without payment of any arrears. As a consequence thereof, petitioner’s pay was refixed by the respondents vide 4 CWP(T) No.7712 of 2008 decided on 19.05.2009. 5 CWP No.199 of 2010 decided on 25.02.2010. -3- office order dated 21.10.2011. As a result of refixation of petitioner’s pay, he was paid an amount of Rs.4,46,389/- during the year 2012 on account of arrears of pay and allowances for the period from 04.03.1995 to 15.03.2011. 3(iv). Six years after the release of the aforesaid amount to the petitioner, respondent No.2 issued a memorandum on 19.07.2017 (Annexure P-4) ordering recovery from the petitioner of arrears paid to him in excess. Petitioner, who was nearing his retirement and was serving as Principal at the relevant time, deposited the aforesaid amount in monthly installments. It appears that that similar recovery notices were also issued to S/Sh. Inder Singh and Harinder Paul Behal. These two employees took recourse to the legal remedies against the recovery notices. Both the matters were decided by the Division Benches of this Court in favour of the petitioners therein by placing reliance upon following paragraph from S.S. Chaudhary vs. State of H.P. & Ors.6 “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). 6 CWPOA No.3145 of 2019 decided on 24.03.2022. -4- (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. (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.” Inder Singh1, inter alia, holds that ‘in case the recovery or a part thereof is or has been effected by the employer, then, the employer shall be bound to refund the same to the employee.’ 3(v). The aforesaid decisions are stated to have attained finality. It is upon the basis of these decisions, the petitioner has instituted this writ petition after remaining unsuccessful in seeking favourable response from the -5- respondents to his representation, praying for refund of the amount deposited by him. The sole reasons accorded by the respondents in their reply for differentiating the case of the petitioner with that of Inder Singh1 and Harinder Paul Behal2 is that petitioner was himself posted as Principal of the concerned industrial training institute and had deposited the excess amount in installments, therefore, he cannot be permitted to seek refund of the aforesaid amount. 4. Whether the petitioner deposited the amount himself or the respondents forcibly got it recovered from him, is immaterial in considering petitioner’s prayer for refund of the amount that is based upon ratio of law discussed in S.S. Chaudhary6, State of Punjab and others vs. Rafiq Masih (White Washer) & Ors.7 and Thomas Daniel vs. State of Kerala & Ors.8 The petitioner at the time of alleged excess payment made to him was serving as Class-III employee. The decisions rendered in Inder Singh1 and Harinder Paul Behal2 are squarely applicable to him in light of law laid down in S.S. Chaudhary6 and Rafiq Masih7. It would also be pertinent to refer to Shyama Nand3. In the aforesaid decision, the amount was alleged to 7 (2015) 4 SCC 334 (2) 8 AIR 2022 SC 2153 -6- have been paid in excess to the petitioner in lieu of ad hoc service rendered by him against Class-III post after his regularization in terms of Paras Ram4. It was held that no order had been passed by the Court restricting payment of arrears in terms of Paras Ram4 to three years prior to filing of the petition. While allowing the writ petition, it was observed that the amount disbursed to the petitioner therein was not released to him either on his representation much less on his misrepresentation. The amount was disbursed by the Department on its own. Relevant paras to the context are as under:- 9. Admittedly the amount, alleged to have paid in excess, has been paid to the petitioner, in reference of the ad-hoc service rendered by him against Class-III posts, after his regularization in terms of the judgment of the High Court passed in CWP(T) No. 7712 of 2008 titled Paras Ram vs. State of HP., which attained finality on dismissal of SLP preferred by the State. 10. From reply, it is apparent that no-where, in any order passed by Court, arrears of such payment in terms of Paras Ram’s judgment were restricted to three years prior to filing of petition. The amount, which is stated to be disbursed to petitioner, was not released on his representation much less on mis-representation. The said amount was disbursed by the Department on its own. 11. The respondent/State is placing reliance on judgment passed the Supreme Court in Chandi Prasad Uniyal’s case, supra. But the said judgment has been considered by the Supreme Court in its subsequent judgment i.e. State of Punjab vs. Rafiq Masih (White Washer) and others reported in (2015)4 SCC 334 and thereafter, the Supreme Court has summed-up the conclusion 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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: -7- (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.” xx xx xx 15. In aforesaid facts and circumstances, not only the fact that present case is covered under Clauses (i) to (iii) of para 18 of Rafiq Masih’s case, but also for the decision of the Government communicated vide letter dated 10/15th March, 2011, Annexure R-2, the proposed recovery is illegal and accordingly, same is quashed.” The ratio of the aforesaid decisions squarely applies to the facts of the case. It was not on account of petitioner’s representation or misrepresentation that respondents had released the amount in question to him. Petitioner’s depositing the aforesaid amount in installments (recovery effected from him by the respondents) prior to his retirement presumably under the impression that his retiral benefits would be withheld by the respondents in case of non-deposit, would not make his case any less different than that of Inder Singh1, Harinder Paul Behal2 and Shyama Nand3. -8- 5. Accordingly, this writ petition is allowed. Impugned office memorandum dated 19.07.2017 (Annexure P-4) and office order dated 27.12.2022 (Annexure P-7) are quashed and set aside qua the petitioner. Respondents are directed to refund the amount of Rs.4,46,389/- to the petitioner within a period of six weeks from today, failing which the amount shall carry interest @ 5% per annum. The writ petition stands disposed of in the above terms. All pending miscellaneous application(s), if any, to also stand disposed of. Jyotsna Rewal Dua 31st July, 2025 Judge (Pardeep)