Recovery of excess payment from Class-III and superannuated employees impermissible in law when due to departmental error, without their fault or prior show cause notice.

JUDGMENT :

AJAY MOHAN GOEL, J.

1. By way of this writ petition, the petitioners have, inter alia, prayed for the following reliefs:-

“a) That a writ in the nature of certiorari may kindly be issued in favour of the petitioner and against the respondents for setting aside the recovery being carried out against the petitioners on the basis of Annexure P-2.
b) That a writ in the nature of mandamus may kindly be issued in favour of the petitioners and against the respondents with the direction to refund the amount recovered by the respondents from the petitioners and to pay the due and admissible increment in favour of the petitioners in the interest of justice.”

2. The case of the petitioners is that they were initially appointed as Voluntary Teachers and later on, they were absorbed as JBTs on regular basis between the years 1994 and 1997. Some of the petitioners are presently serving as Central Head Teachers and Head Teachers, while some of them have already superannuated. They are aggrieved by the fact that on the basis of Annexure P-2, i.e., notification dated 03.01.2022, recoveries are being effected against them.

3. Learned counsel for the petitioners argued that the petitioners are Class-III employees and whatever salary is being paid to them is on the basis of the pay fixation carried out by the Department. He submitted that recovery being effected from them is bad, as neither any show cause notice was issued to them nor have they otherwise been intimated as to why the recoveries are being effected. Accordingly, he prayed that the petition be allowed by holding that the act of the respondents of effecting recoveries from the petitioners was bad in law, and direction be issued to the respondents not to effect any recoveries and to refund the amounts already recovered, if any.

4. On the other hand, the stand of the State is that when the petitioners were placed as Central Head Teachers and Head Teachers, it was erroneously construed that they stood promoted to the said posts and were placed in a pay band to which they were not entitled. It is further the stand of the respondents that after issuance of notification Annexure P-2, the petitioners have exercised their option, and whatever action is being initiated by the Department is on the strength of the said option exercised by the petitioners.

5. Having heard learned counsel for the petitioners as also learned Assistant Advocate General, this Court is of the considered view that this writ petition deserves to be allowed to a limited extent i.e., that the respondents cannot effect any recoveries from the petitioners on any ground whatsoever.

6. It is not in dispute that the petitioners are either serving as Class-III employees or stand superannuated as Class-III employees. The alleged overpayment made to them by the Department is not on account of any act of omission or commission attributable to them. In light of the fact that the Hon’ble Supreme Court of India has been pleased to hold in State of Punjab and others vs. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334 that recovery from the employees belonging to Class-III and Class-IV categories is “impermissible in law” no recovery can be effected from them by the Department.

7. It could also not be disputed before this Court that the recovery has been effected from the petitioners without any show cause notice etc. This also renders the act of the State bad in law. De-hors this fact, the recovery from the petitioners otherwise is not sustainable in law, for the reason that as some of the petitioners have already superannuated and the serving petitioners are Class-III employees, the act of the respondents is again