1 2025:CGHC:38198 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1614 of 2023 1 - Lochan Prasad Dewangan S/o Bishram Das Dewangan Aged About 61 Years Working As Teacher (L.B.) And Posted At Government Middle School Karhi, District- Mungeli, Chhattisgarh. ... Petitioner(s) 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 ... Respondent(s) For Petitioner(s) : Mr. Vinod Kumar Sharma, Advocate. For Respondent(s)/State : Mr. Ashutosh Shukla, Panel Lawyer. Digitally signed by RAGHVENDRA JAT 2 Hon’ble Mr. Justice Amitendra Kishore Prasad Order on Board 01/08/2025 1. By way of this petition, the petitioner has prayed for following reliefs:- “(i) That, this Hon'ble Court may kindly be pleased to quash the recovery order (Annexure P-1) as it is without jurisdiction and contrary to the judgment of Hon'ble Supreme Court, in the interest of justice.” 2. Learned counsel for the petitioner submits that a recovery notice has been issued vide order dated 21.12.2022 while stating that pay scale applicable from 01.04.2007 has been given to the petitioner from 01.04.2007 and by which instead of 4,500/- in the service book, it has been mentioned as 5,000/- which is not in accordance with law and the excess payment has been given as such recovery was directed to be made against the petitioner. He further submits that wrong fixation was not the fault of the petitioner, he has not committed any malafides act in fixation of the pay scale in the service book. Recording of service book is the exclusive dominie of service government as such the petitioner cannot be held guilty. He contended that the issue with regard to recovery of the excess payment made to the employees in particular, the Class III and Class IV employees has been considered by the Hon’ble Supreme Court in case of State of 3 Punjab and Ors. Vs. Rafiq Masih (White Washer) and Ors. (2015) 4 SCC 334 and the Hon’ble Supreme Court has held that the recovery of excess payment made to the Class III and Class IV employee to be impermissible. He also contended that following the decision in the case of Rafiq Masih (Supra), Hon’ble Supreme Court in the case of Thomas Daniel Vs. State of Kerala & Ors. (2022 SCC OnLine SC 536) has also allowed the Appeal filed by the appellant therein. He further submits that no recovery has been made from the petitioner. 3. On the other hand, learned counsel for the Respondents/State submits that since wrong fixation has been mentioned in the service book as such it is required to be recovered from the petitioner as excessive amount has been paid which is apparent from the fixation of pay scale itself. 4. I have heard learned counsel for the parties and perused the documents placed on record. 5. The Hon’ble Supreme Court in the case of Rafiq Masih (Supra) has observed thus:- “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 4 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.” 6. Hon'ble Supreme Court in the case of Syed Abdul Qadir and Ors. Vs. State of Bihar and Ors. (2009) 3 SCC 475 considering the issued with regard to recovery of excess payment made to the petitioner therein has held as under : “57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (A) the excess amount 5 was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 59. Undoubtedly, the excess amount that has been paid to the appellants - 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 appellants-teachers submitted that majority of the 6 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 the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.” 7. Considering the facts and circumstances of the case and further considering the fact that the recovery was directed to be made from the petitioner which is pertaining from the year 2007. The said notice was issued on 21.12.2022 which is more than 5 years and as such according to decision of the Hon’ble Supreme Court in the case of Rafiq Masih (Supra) and Thomas Daniel (Supra), no recovery order can be issued after 5 years and that too the petitioner has not committed any malafide misrepresentation in getting the said pay scale and therefore, the order of recovery dated 21.12.2022 is quashed. 8. With the aforementioned observation, writ petition is disposed of. Sd/- (Amitendra Kishore Prasad) Judge Raghu Jat