1 2025:CGHC:39564 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1574 of 2023 Nawab Ali S/o Noor Ali Aged About 48 Years Working As Lecturer And Posted At Govt. Higher Secondary School Karhi, Mungeli District Mungeli Chhattisgarh. ... Petitioner versus 1 - State Of Chhattisgarh Through Secretary, Department Of School Education Mahanadi Bhawan, Mantralaya New Raipur, District Raipur Chhattisgarh 2 - District Education Officer, Mungeli District Mungeli Chhattisgarh. 3 - Deputy Director, Local Fund Audit Bilaspur District Bilaspur Chhattisgarh. 4 - Chief Executive Officer, Zila Panchayat Bilaspur District Bilaspur Chhattisgarh. 5 - Principal Govt. Higher Secondary School Karhi, Mungeli District Mungeli Chhattisgarh. ... Respondents (Cause-title taken from Case Information System) For Petitioner : Mr. Ajay Shrivastava, Advocate For State/Respondents : Mr. Devesh G. Kela, P.L. Hon’ble Shri Amitendra Kishore Prasad, Judge Order on Board 07.08.2025 1 The petitioner has filed this writ petition with the following relief(s):- “(i) That, this Hon'ble Court may kindly be pleased to quash the recovery onder (Annexure P-1) as it is without jurisdiction YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.08.07 18:30:33 +0530 2 and contrary to the judgment of Hon'ble Supreme Court, in the interest of justice. (ii) Any other relief which may be suitable in the facts and circumstances of the case including cost of the petition, may also be granted.” 2 Learned counsel for the petitioner respectfully submits that the petitioner was initially appointed as Shiksha Karmi Grade-III by order dated 23.03.1999, subsequently promoted to Grade-II on 12.07.2005, then to Grade-I on 20.09.2006, and finally absorbed as Lecturer (L.B.) in the Education Department on 01.07.2018, and is presently posted at Government Higher Secondary School, Karhi, District Mungeli (C.G.). It is submitted that a recovery order dated 21.12.2022 has been issued to the petitioner alleging excess payment due to wrong pay fixation during the period from 17.07.2006 to 01.04.2007, and directing him to consent for recovery, failing which he would be held responsible for the consequences; however, the said order has been passed without issuing any show cause notice or affording any opportunity of hearing, in violation of the principles of natural justice. It is further submitted that the impugned recovery relates to a period when the petitioner was an employee of the Panchayat Department, and as per the absorption policy, the Education Department has specifically stated that it would not be liable for any arrears or liabilities of the Panchayat Department prior to absorption; hence, it lacks jurisdiction to initiate such recovery. Moreover, the 3 petitioner was rightly granted basic pay of Rs. 5,000/-, and the claim that he was entitled only to Rs. 4,500/- is unsubstantiated and made without any supporting document or opportunity of hearing. It is also submitted that up to the year 2016, the petitioner was a Class-III employee, and as per the binding precedents of the Hon’ble Supreme Court in State of Punjab vs. Rafiq Masih, (2015) 4 SCC 334 and Thomas Daniel vs. State of Kerala, 2022 SCC OnLine SC 536, no recovery can be made from Class-III employees for excess payment made more than five years prior. He also places reliance upon the decision rendered by the Division Bench of this Court in case of State of Chhattisgarh v. Labha Ram Dhruv in Writ Appeal No.264 of 2020 and also in case of State of Chhattisgarh and others v. Roshan Lal Baghel in Writ Appeal No.265 of 2020. He submits that recovery made by respondents from the petitioner is erroneous and not permissible and hence, the order dated 21.12.2022 insofar as it relates to the petitioner may be set aside and direction be issued to respondent authority to return back the amount recovered from the petitioner. 3 On the other hand, learned counsel for the State submits that the petitioner has got the excess payment on account of wrong fixation of salary, therefore, the recovery order passed by the authority is proper and the excess amount which has been paid to the petitioner has to be recovered. 4 4 I have heard learned counsel for the parties and also perused the documents annexed with this writ petition. 5 The Hon’ble Supreme Court in the case of Rafiq Masih (supra) held 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: (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 5 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.” 6 The Hon'ble Division Bench of this Court in case of Labha Ram (Supra) observed as under: "9. In the case at hand, the Revision of Pay Rules, 2009 and 2017 do not make any enabling provision reserving option for the employer to seek refund of the amount paid in excess, by making the employee to furnish an undertaking. Even if we conclude, for the sake of arguments, that even in the absence of enabling provision under the Rules, undertaking given by the employee would operate, the fact remains that against the classes of employees against whom recovery would be impermissible in law, as held by the Hon'ble Supreme Court in the matter of Rafiq Masih (Supra), recovery from the employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service) would still be impermissible in law. Meaning thereby that even when undertaking is submitted by the employee, but he otherwise belongs to Class-III and Class-IV service, and the amount has been paid more 6 than 5 years back, the law declared by the Hon'ble Supreme Court in the matter of Rafiq Masih (Supra) would still hold the field in favour of such employees, because the judgment in the matter of Rafiq Masih (Supra) has not been overruled, but only clarified, by the Hon'ble Supreme Court in its later judgment in the matter of Jagdev Singh, Supra. x x x 11.In view of the above and on finding that in the cases at hand, the recovery of the excess payment has been made more than 12 years ago; the writ petitioners belong to Class-III cadre in the services of the State Government, and small amount has been paid to them in a long span of time, which has now accumulated and the recovery of substantial amount is to be made against them, we are inclined to hold that the Writ Appeals have no substance. They deserve to be and are hereby dismissed." 7 In light of the above authoritative judgments, facts of the present case are to be examined. The alleged excess payment was not made by any misrepresentation or fraud on the part of the petitioner. In the considered opinion of this Court, the case of the petitioner is squarely covered by the decision in the case of Rafiq Masih (supra). Therefore, the impugned order dated 21.12.2022 issued by the respondent authorities for recovery of the excess 7 payment is set aside and the amount which has been recovered, if any, as excess payment, shall be refunded to the petitioner within a period of 60 days from the date of receipt of copy of this order, failing which, it will carry interest @ 6% per annum from the date of filing of this writ petition. 8 Respondents are further directed to release the retiral dues of the petitioner, if any, within a period of four weeks from the date of receipt of copy of this order. 9 Accordingly, the instant writ petition is allowed with the aforesaid observations and directions. Sd/-- (Amitendra Kishore Prasad) Judge Yogesh