2026:HHC:23598 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWPOA No.542 of 2019 Decided on: 19 th June, 2026 __________________________________________________________________ Narpat Sharma ....Petitioner Versus State of Himachal Pradesh and others ...Respondents _________________________________________________________________ Coram Hon'ble Mr. Justice Jiya Lal Bhardwaj, Judge Whether approved for reporting? 1 For the petitioner: Ms. Shashi Kiran, Advocate. For the respondents: Mr. Sumit Sharma, Deputy Advocate General. Jiya Lal Bhardwaj, Judge (Oral) The petitioner by way of present writ petition has prayed for the following substantive reliefs:- “i) That the order/notice contained in Annexure p-3 and recovery order/notice contained in Annexure p-5 may kindly be quashed and set aside. ii) That the respondents may kindly be directed to implement the judgment dated 13.12.2010 contained annexure P-1 passed in LPA No.105 of 2010 immediately with further directions to pay monetary benefits to the petitioner in terms of the above titled judgment and arrear thereof may be paid to the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 petitioner with interest. iii) That the petitioner may kindly be had entitled for the allowance for the allowances including dearness allowance as has been provided in appointment latter and agreement which was entered upon thereafter from the provided for which the petitioner has remained posted as lecturer in math on contract basis, that the respondents may kindly be directed not to recover any amount from the salary of petitioner.” 2. The facts as emerge from the pleadings of parties are that the petitioner was appointed on 28.08.1998 as Lecturer (Mathematics) on contract basis in Government Senior Secondary School Kafota, District Sirmaur, H.P. At the time of appointment, the petitioner was given fixed pay of Rs.1800/- till the joining of regular hand. However, later on, his services were terminated on 14.12.1999 due to joining of regular hand. Thereafter, he was again re-engaged by the respondents on 11.05.2001 at Government Senior Secondary School, Delath, District Shimla on contract basis in the pay scale of Rs.1800-3200 on fixed pay of Rs.1800/- and later on, his services were regularized on 27.07.2010. 3. The persons appointed on contract basis were 3 not granted the initial pay scale and the revised pay scales and being aggrieved therefrom they had approached the Court by way of various petitions. Learned Single Judge in CWP(T) No.781/2008, titled, Rakesh Chand and others vs State of Himachal Pradesh and others, decided on 15.06.2010, had held that JBT teachers appointed on contract basis would be entitled to the running pay scale from their initial date of appointment as well as revised pay scale. However, in LPA No.105/2010, titled, The State of Himachal Pradesh and others versus Rakesh Chand and others and connected matters, the order dated 15.06.2010, passed by the learned Single Judge was set aside on 13.12.2012 to the extent that the contract employees are held entitled only to the initial of the pay scale attached to the post and revised pay scale. 4. The petitioner had also filed the petition along with other persons, which was registered as CWP No.1083 of 2013, titled, Asha Sharma and others versus State of Himachal Pradesh and others (petitioner at serial No.3) and 4 the same was disposed of on 05.03.2013 in view of the decisions rendered in CWP(T) No.14232 of 2008, titled, Nek Ram and others versus State of Himachal Pradesh and others, decided on 17.11.2009 and LPA No.105/2010, titled, State of Himachal Pradesh and others versus Rakesh Chand and others and connected matters, (Annexure P-2) directing the respondents to extend the similar benefits to the petitioners as extended to the aforementioned persons. 5. Respondent No.2 after passing the aforementioned judgment by the Court, passed an office order on 12.06.2013, wherein it was mentioned that as per instructions dated 09.05.2006, the contract teachers were to be paid the initial of the pay scale plus dearness pay. The contract teachers were only entitled to Rs.6400+3200=9600/-, but they were paid more than that amount. The petitioner has drawn more than Rs.9600/- per month after May, 2006, as he had exercised the option. The petitioner has already been paid higher emoluments i.e. Rs.10,704/-. As per the directions 5 given by the Court in Nek Ram’s case (supra), the persons had to either opt for merger of DA (50%) in form of DP or to continue with existing emoluments. But in both eventualities, the pay of contractual appointees should not be less than the emoluments being drawn by them before 09.05.2006. The petitioner had drawn more than Rs.9,600/- per month, as he had exercised option and thus, the excess amount be recovered from him. However, before making recovery, show cause notice be issued to the incumbent within 15 days from the date of issuing these instructions. 6. So far as grant of the benefit of judgment passed in LPA No.105 of 2010 is concerned, it was observed that the petitioner is not the sole claimant and after this verdict, the State Government has decided to assail the judgment by way of SLP and as and when the SLP is decided, the petitioner shall be governed by the decision. 7. Thereafter, respondent No.4, in compliance with the order dated 12.06.2013, passed by respondent No.2, 6 issued a show cause notice on 18.07.2013 (Annexure P-3) to the petitioner calling upon him that why an amount of Rs.1,83,903/- be not recovered from him, which was paid to him by the Principal, Government Senior Secondary School, Dharampur, District Solan, vide Bill No.188 dated 02.03.2012. 8. The petitioner replied to the show cause notice vide (Annexure P-4) stating therein that there is no question of making recovery of alleged excess amount from him and whatever amount has been paid to him, was paid after due deliberation and calculations and there is no fault on his part. He had not concealed any material facts nor misrepresented before the authorities. The action taken to recover the amount would be unjust and oppressive. For another observation made in the order dated 12.06.2013 that the State has assailed the decision in LPA No.105 of 2010 before the Hon’ble Supreme Court of India, it was replied that he has come to know that the SLP filed by the State has been dismissed and thus, prayed that the show cause notice be 7 withdrawn. However, instead of dropping the show cause notice, respondent No.4 passed an order on 16.12.2014 (Annexure P-5), to recover an amount of Rs.1,42,327/- from the petitioner. 9. The petitioner feeling aggrieved by the show cause notice, order of recovery of amount and not paying him the amount in terms of the directions given by the Court in terms of the decision in LPA No.105 of 2010, has approached this Court on the grounds that impugned orders are illegal, wrong, unjust, unconstitutional and contrary to the judgment passed by this Court. The amount of Rs.1,83,903/-, which has been paid to the petitioner is on account of allowances, which were made admissible to him for the period for which he had remained posted on contract basis. 10. It has further been averred that the amount at this belated stage cannot be recovered from him and the allowances paid were part of the pay scales. The respondents have misinterpreted the judgment passed by this Court. The 8 judgment passed by this Court on 13.12.2012 in LPA No.105 of 2010 has been affirmed by the Hon’ble Supreme Court vide judgment dated 09.07.2013. It is also averred that the respondents are working with mala fide intention. The petitioner has not been paid any amount after the decision in his petition and thus he prayed that the impugned order/notice be quashed and further, the respondents be directed to implement the judgment dated 13.12.2010 passed in LPA No. 105 of 2010. 11. The respondents filed reply to the petition and averred that the petitioner is not entitled to file and maintain the present writ petition, since no injustice has been caused to him. The petitioner was appointed, as a temporary measure, on contract basis with pay scale of Rs.1800-3200/- on fixed pay of Rs.1800/- till the joining of regular hand. The services of the petitioner were terminated on 14.12.1999 till the joining of regular hand. However, later on, he was re- engaged by the respondents on 11.05.2001 at GSSS Delath, 9 District Shimla, on contract basis and later on his services were regularized vide office order dated 27.07.2010. 12. This Court in LPA No.105 of 2010 had set aside the directions given in CWP(T) No.781 of 2008, wherein, direction was given to pay the pay scale of JBT Teachers from the date of their initial appointment. The judgment passed by this Court has been dismissed by the Hon’ble Supreme Court on 09.07.2013. On consideration of the matter, the State Government took a decision for implementation of the judgment passed in LPA No.105 of 2010. As per the instructions dated 23.11.2013, contract lecturers, who are entitled to get only Rs.6400/- prior to 31.12.2005 and Rs.10,300/- w.e.f. 01.01.2006. From the perusal of the record, it was found that the petitioner had been paid excess amount, contrary to the aforementioned instructions as well as the judgment passed by this Court in CWP(T) No.14232 of 2008 and LPA No.105 of 2010 and thus, the Principal, Government Senior Secondary School, Kandaghat, was 10 directed to recover the excess amount paid by the concerned DDO, though he was not entitled for the same and said wrongful payment had been made out of the Government Exchequer. The speaking order dated 12.06.2013 has been passed. Earlier the Principal GSSS Kandaghat had directed the petitioner to deposit an amount of Rs.1,83,903/-, but taking into account his reply, he was directed to pay Rs.1,42,327/-. 13. I have heard the learned counsel for the parties and also perused the record carefully. 14. It is not in dispute that when the petitioner was paid the excess amount contrary to the instructions issued by the State Government, he had not made any misrepresentation or concealed the material facts from the respondents. It is settled law that if there was no misrepresentation on the part of Class-III or Class-IV employees, the excess payment made cannot be recovered from them. In the present case, since there was no fault on the part of the petitioner, inasmuch as he had not made any 11 misrepresentation to obtain the said amount and the respondents had paid the excess amount on their own, the amount so paid cannot be recovered from him since he was Class-III employee. Further, the respondents had issued the instructions on 23.11.2013 and as per these instructions, the contract lecturers were entitled to get only Rs.6400/- prior to 31.12.2005 and Rs.10,300/- w.e.f. 01.01.2006. Since the petitioner has been paid the amount much earlier to these instructions, that too, without any fault on his part, the amount paid in excess cannot be recovered from him. 15. The Hon’ble Supreme Court in State of Punjab and others vs. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334, has held that in case the excess amount is paid to an employee who is Class-III, the same cannot be recovered, provided he did not make any misrepresentation at the time of receipt of the said amount. 16. The Hon’ble Division Bench of this Court in CWPOA No.3145 of 2019, titled, S.S. Chaudhary vs. State of 12 Himachal Pradesh and others, decided on 24.03.2022, while considering the judgment of the Hon’ble Supreme Court in Rafiq Masih’s case (supra) has culled out the circumstances, which read as under:- “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). (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 13 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 channelised and inflexible guidelines 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” 17. In the present case, admittedly, the petitioner did not make any misrepresentation, while receiving the aforementioned amount and thus the order passed by the respondents ordering recovery of amount from the petitioner is untenable in the eyes of law, especially when the amount paid is from the year 2005 onwards. 18. The petitioner has also prayed for directions to 14 implement the judgment passed by this Court in LPA No.105 of 2010 to grant him the monetary benefits. At the time of passing an order on 12.06.2013, it was held that as and when the SLP is decided, the petitioner shall be governed by the said verdict. Since the SLP preferred by the respondents has been dismissed, the petitioner is held entitled to the benefit of the judgment. 19. Consequently, the present petition is allowed and the impugned show cause notice dated 18.07.2013 (Annexure P-3) and order dated 16.12.2014 (Annexure P-5) are quashed and set aside with a further directions to the respondents to grant the benefits to the petitioner in terms of the decision in LPA No.105/2010 within three months from today. 20. The petition is accordingly disposed of. No order as to costs. Pending application(s), if any, shall also stand disposed of. 19 th June, 2026 ( Jiya Lal Bhardwaj ) (ankit) Judge