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2024 DIGILAW 163 (HP)

Neelam Kumari v. State of Himachal Pradesh

2024-03-07

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition, the petitioner has prayed fort the following reliefs: (a) “That writ of certiorari or any other appropriate writ, order may kindly be passed to quash and set aside the impugned show cause Annexure P-3 dated 06.08.2014 and impugned recovery notice Annexure P-7 dated 19.01.2015, being contrary to law and facts. (b) That respondent may kindly be directed to release the amount already recovered from the petitioner with interest.” 2. Brief facts necessary for the adjudication of the present petition are that the petitioner was appointed as a Trained Graduate Teacher (TGT) on contract basis and subsequently his services were regularized. The petitioner had approached this Court earlier by way of CWP No.191 of 2013 alongwith other similarly situated persons i.e. TGT serving on contract basis praying for grant of revised scale on the analogy of the law laid down by this Court in LPA No.105 of 2010. The petition of the petitioner was disposed of vide judgment dated 08.01.2013 (Annexure P-2), in the following terms:- The writ petition is filed with the following prayers:- That writ of mandamus be issued whereby directions be issued to the respondents to release the pay scale equivalent to the regular teachers lecturers (School Cadre) from their initial appointment and revised from time to time on the analogy of the judgment passed in LPA No.105 of 2010.” 2. According to the petitioners, the issue is covered in their favour by the judgment of this Court dated 13.12.2012, in LPA No.105 of 2010, titled as State of H.P. & Ors. vs. Rakesh Chand & Ors. and connected matters. If that be so, a similar treatment shall also be extended to the petitioners herein also, in case the petitioners are also similarly situated. The needful shall be done within a period of three months from the date of production of a copy of this judgment along with a copy of this writ petition and copy of judgment along with a copy of the writ petition and copy of the judgment referred to above, by the petitioners before the second respondent. 3. The writ petition is disposed of so also the pending applications, if any. 3. 3. The writ petition is disposed of so also the pending applications, if any. 3. Thereafter, the petitioner received a show cause notice Annexure P-3 to the effect that certain overpayment stood made to her while granting her arrears of pay and why the same should not be recovered. This show cause was replied to by the petitioner, but the respondent-Department vide impugned recovery order Annexure P-7 has directed recovery of overpayment of Rs.70,243/- in the form of arrears from the petitioner, which recovery order stands challenged by way of this writ petition. 4. Learned counsel for the petitioner has submitted that the arrears of pay were rightly paid to the petitioner and in fact there was no overpayment made to the petitioner, but de-hors the fact as to whether there was any overpayment or not taking into consideration the fact that the petitioner happens to be a Class-III employee, no recovery otherwise also could have been effected from her in the light of the law declared by the Hon’ble Supreme Court of India in State of Punjab and others versus Rafiq Masih (White Washer) and others, (2015) 4 SCC 334 . 5. Learned Deputy Advocate General on the other hand has justified the act of the respondent-State by submitting that as there was an over payment made to the petitioner to the tune of Rs. 70,243/-, therefore, there is no infirmity in the act of the respondents in effecting recovery thereof because the petitioner cannot be permitted to enjoy this amount to which she is not legally entitled. Accordingly, a prayer has been made that the present petition being devoid of any merit and the be dismissed. 6. Having heard learned counsel for the parties and having carefully gone through the pleadings as well as the documents appended with the petition, this Court is of the considered view that impugned recovery order Annexure P-7 dated 19.01.2015 is not sustainable in the eyes of law. It is not in dispute that TGT post is a Class-III post. 6. Having heard learned counsel for the parties and having carefully gone through the pleadings as well as the documents appended with the petition, this Court is of the considered view that impugned recovery order Annexure P-7 dated 19.01.2015 is not sustainable in the eyes of law. It is not in dispute that TGT post is a Class-III post. Hon’ble Supreme Court of India in State of Punjab and others versus Rafiq Masih (White Washer) and others, (supra) while adjudicating as to in what circumstances recovery of payments mistakenly made to the employer in excess and their entitlement cannot be recovered has been pleased to hold as under- “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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law. (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service) (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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 other case, 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.” 7. (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.” 7. Thus, a perusal of the law laid down by the Hon’ble Supreme Court of India makes it clear that recovery from employees belonging to Class-III i.e. the Class, to which, the petitioner belongs is “impermissible in law.” That being the case, the recovery notice issued by the respondents-Department Annexure P-7 is in conflict with the law laid down on the subject by the Hon’ble Supreme Court of India and, therefore, the same cannot be sustained in law. Accordingly, this writ petition is allowed. Impugned recovery notice Annexure P-7 dated 19.01.2015, is hereby quashed and set aside. Pending miscellaneous applications, if any, also stand disposed of.