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2024 Supreme(HP) 89
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Ajay Mohan Goel, J.
Neelam Kumari - Petitioner
Vs.
State of Himachal Pradesh and others - Respondents
CWP No. 1285 of 2015
Decided On : 07-03-2024
Advocate Appeared:
For the Petitioner: Mr. Vikas Rajput, Adv.
For the Respondents:Mr. Anup Rattan, Advocate General with Mr. Rohit Sharma, Deputy Advocate General.
IMPORTANT POINT
The impermissibility of recovery from employees belonging to Class-III service as per the law laid down by the Hon’ble Supreme Court of India.
Headnote:
Recovery Notice - Employment Dispute - State of Punjab and others versus Rafiq Masih (White Washer) and others, (2015) 4 SCC 334 - The court discussed the impermissibility of recovery from employees belonging to Class-III service as per the law laid down by the Hon’ble Supreme Court of India. The recovery notice issued by the respondents-Department was in conflict with this law and was quashed and set aside.
Fact of the Case:
The petitioner, a Trained Graduate Teacher, received a show cause notice for overpayment of arrears and a recovery order. The petitioner contested the overpayment and argued that as a Class-III employee, no recovery could be effected as per the law declared by the Hon’ble Supreme Court of India.
Finding of the Court:
The court found that the recovery notice was not sustainable in the eyes of the law, citing the impermissibility of recovery from Class-III employees as per the law laid down by the Hon’ble Supreme Court of India.
Issues: The issue revolved around the overpayment of arrears to the petitioner and the subsequent recovery notice, with the petitioner contesting the overpayment and the legality of the recovery as a Class-III employee.
Ratio Decidendi: The court relied on the law laid down by the Hon’ble Supreme Court of India, which stated that recovery from employees belonging to Class-III service is impermissible in law.
Final Decision: The court allowed the writ petition, quashed and set aside the impugned recovery notice, and disposed of pending miscellaneous applications.
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. 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
