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2022 DIGILAW 808 (HP)

Chandan Moudgil v. State of H. P.

2022-12-12

SATYEN VAIDYA

body2022
JUDGMENT : Satyen Vaidya, J. Aggrieved against the orders dated 22.02.2019 (Annexure P-8) and 16.08.2019 (Annexure P-9), issued by respondent No.3, whereby the recovery of Rs.2,33,517/- has been sought to be effected from the petitioner, the instant petition has been filed for following substantive reliefs : (i) Issue a writ of certiorari to quash impugned order dated 22.02.2019 and 16.08.2019 i.e. Annexure P-8 and Annexure P-9. (ii) Issue a writ of mandamus directing the respondent authorities not to implement impugned orders dated 22.02.2019 and 16.08.2019 i.e. Annexure P-8 and Annexure P-9. 2. The mother of petitioner was initially appointed as Instructor Stenography (Hindi) on adhoc basis vide office order dated 01.12.1986 and was posted at ITI, Paonta Sahib, District Sirmaur, H.P. Her services were regularized in the pay scale of Rs.1650-2925 w.e.f. 04.03.1995. 3. The State Government vide letter dated 15.03.2011 had accorded its approval and communicated that the judgment passed by this Court in CWP(T) No. 7712 of 2008, in the matter of Paras Ram vs. State of H.P. and another had attained finality after dismissal of SLP, therefore, all similarly situated officials were entitled for counting of adhoc service before regularization for the purpose of annual increments. The mother of petitioner was also conferred the benefit of annual increments in terms of the aforesaid decision of the State Government. 4. Before the arrears could be disbursed, the mother of petitioner died. Petitioner was appointed as Clerk on compassionate ground and was paid the arrears in the year 2012. 5. By a subsequent decision of the Finance Department of the Government, earlier decision of granting benefit of increment by counting adhoc service followed by regular service was withdrawn. As a result of such decision of the Government, the impugned Annexures P-8 and P-9 were issued at much belated stage i.e. in the year 2019 seeking recovery of a sum of Rs.2,33,517/- from the petitioner. 6. Petitioner has sought the aid of judgment passed by a Division Bench of this Court on 24.03.2022 in CWPOA No. 3145 of 2019, titled S.S. Chaudhary vs. State of H.P. and others, alongwith connected matters, wherein, following the principles laid down in the case of State of Punjab and others vs. Rafiq Masih (White Washer) and others (2015) 4 SCC 334 (2), certain situations have been culled out in which the recovery of amount from a Government employee has been held to be impermissible. The Hon’ble Division Bench of this Court has held 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 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.” 7. Noticeably, the instant petition CWP No.2360 of 2019 was also connected with CWPOA No. 3145 of 2019, in which the aforesaid judgment was passed. 8. The mother of petitioner belonged to Class-III service of the State Government. Moreover, the recovery has been sought to be made after more than five years of its disbursement. Noticeably, the instant petition CWP No.2360 of 2019 was also connected with CWPOA No. 3145 of 2019, in which the aforesaid judgment was passed. 8. The mother of petitioner belonged to Class-III service of the State Government. Moreover, the recovery has been sought to be made after more than five years of its disbursement. Thus, the present case is squarely covered under Clauses (i) and (iii) of para-35 of the aforesaid noted judgment (supra). In addition, it can be seen that the mother of the petitioner had died and petitioner was appointed on compassionate grounds. The recovery at such belated stage will otherwise be iniquitous and harsh. 9. Thus, in light of above discussion, the case of the petitioner is squarely covered by the judgment passed by a Division Bench of this Court in CWPOA No.3145 of 2019 and the respondents cannot recover the amount as sought by them vide Annexures P-8 and P-9. Accordingly, letters dated 22.02.2019 (Annexure P-8) and 16.08.2019 (Annexure P-9) are quashed and set-aside. 10. The petition stands disposed of in the aforesaid terms, so also the pending miscellaneous application(s), if any.