-1- 2026:CGHC:20052 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1055 of 2021 • Gambhir Sai S/o Late Bal Govind Aged About 51 Years Working On The Post Of Excise Constable, R/o Excise Circle-Baikunthpur, Tahsil Baikunthpur District Koriya Chhattisgarh ... Petitioner versus 1. State Of Chhattisgarh Through The Secretary, Department Of Excise, Mahanadi Bhawan, Mantralaya, Atal Nagar, Nawa Raipur District Raipur Chhattisgarh 2. The Excise Commissioner Aabkari Bhawan, Aabkari Bhawan, Chhokara Nala, Labhandi, Raipur, District Raipur 3. District Excise Officer Baikunthpur District Koriya Chhattisgarh ... Respondent(s) For Petitioner : Mr. Pushkar Sinha, Advocate For State : Mr. Anil S. Pandey, Government Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 30.04.2026 1) The petitioner has filed this petition seeking the following relief(s):- “10.1. That Hon'ble Court may kindly be pleased to direct the Respondents to produce the entire records relating to the service of petitioner. 10.2 That, Hon'ble Court may kindly be pleased to issue writ in the nature of Certiorari/Mandamus and quash the order dated 19.01.2021 (Annexure P/1) passed by the respondent no. 3 and further direct to reinstate the earlier order dated 20.09.2018 (Annexure P/6). SIDDHANT TAMRAKAR Digitally signed by SIDDHANT TAMRAKAR Date: 2026.04.30 14:38:51 +0530 -2- 10.3. That, Hon'ble Court may kindly be direct the respondents for payment of salary to the petitioner from 25.05.1993 as per the order dated 20.09.2018 (Annexure P/6), with interest. 10.4. That, Hon'ble Court may kindly be pleased to stay the operation and effect of the impugned the order dated 19.01.2021 (Annexure P/1) passed by the respondent no. 3 till the final decision of the petition. 10.5. Any other relief, which Hon'ble Court deems fit and proper in the circumstances of the case and petition, may kindly be allowed with costs.” 2) Learned counsel for the petitioner would submit that the petitioner was initially appointed as a Salesman under the contingency paid category, pursuant to the decision of the State Government taken in the year 1993 to cancel the private tender process for the sale of liquor and to operate wine shops through the government itself. Accordingly, 518 posts of Salesman were sanctioned under the contingency paid category. He would further submit that for filling up the said posts, the names of eligible candidates were requisitioned from the Employment Exchange, and thereafter, the petitioner, along with other candidates, was appointed as a Salesman on a contingency basis for a period of 89 days vide order dated 18.05.1993, on a pay scale of Rs. 950–1530/-. He would also submit that, according to the circulars and policy decisions of the State Government issued from time to time, the petitioner was granted revised pay scale vide order dated 31.10.2000. Thereafter, vide order dated 30.12.2008, the services of the petitioner were regularized and he was appointed to the post of Excise Constable in the regular pay scale of Rs. 3050-75-3950-80-4590. 3) It is further contended that vide order dated 20.09.2018, the services of the -3- petitioner were counted from his initial date of appointment for the purposes of pay fixation. Based on the said order, the petitioner’s pay was duly fixed, and he was being paid salary accordingly without any interruption. 4) However, all of a sudden, and without affording any opportunity of hearing to the petitioner, the respondent authorities passed the impugned order dated 19.01.2021 (Annexure P/1), whereby the earlier order dated 20.09.2018 was canceled and the recovery was ordered of the amount alleged to have been paid in excess to the petitioner pursuant to the said pay fixation. He has placed reliance on the judgment rendered in State of Punjab and Others v. Rafiq Masih (White Washer); (2015) 4 SCC 334. 5) On the other hand, Mr. Pandey, learned counsel for the State, would oppose the submission made by counsel for the petitioner and would submit that the pay fixation order dated 20.09.2018 was passed due to a mistake and contrary to the service rules. Therefore, the same was rightly withdrawn by the impugned order dated 19.01.2021, and the excess amount paid is liable to be recovered. 6) Heard learned counsel for the parties and perused the documents placed on the record. 7) The Hon’ble Supreme Court in the matter of Rafiq Masih (supra) in para 18 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 -4- 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 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. ” 8) In the present case, it is not in dispute that the petitioner belongs to Class-III service and he was granted pay fixation benefits pursuant to a duly issued order by the competent authority dated 20.09.2018. The said benefit continued in favor of the petitioner for a considerable period without any objection. The impugned order dated 19.01.2021 has been passed without notice or opportunity of hearing. 9) Further, if the order dated 20.09.2018 was erroneously issued, the petitioner cannot be faulted for the same, as he had not misrepresented any fact or suppressed any material information. Recovery from a Class-III employee, in such circumstances, would be impermissible in law as held by the Hon’ble Supreme Court in the matter of Rafiq Masih (supra). 10) Accordingly, the impugned order dated 19.01.2021 (Annexure P/1) is hereby -5- quashed. Recovered amount, if any, shall be refunded to the petitioner forthwith. 11) Consequently, the writ petition is allowed. No order as to cost(s). Sd/- (Rakesh Mohan Pandey) Judge $iddhant