IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 14^th DAY OF JULY, 2022 BEFORE HON’BLE MR. JUSTICE TARLOK SINGH CHAUHAN & f HON’BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO. 4244 OF

2019 Between:-

RAM KARAN SINGH, S/O SH. SHIV PRASAD SINGH, R/O MOHALLAN TALIAN, WARD NO.10, KACHA TANK, TEHSIL NAHAN, DISTT.

SIRMO UR, H.P.

...PETITIONER (SH. ADARSH K. VASHISTA, ADVOCATE)

AND

1. THE STATE OF H. P. THROUGH ITS SECRETARY (EDUCATION) TO THE GOVT. OF HIMACHAL PRADESH, H.P. SECRETARIAT, SHIMLA, H.P.

2. DIRECTOR OF HIGHER EDUCATION, GOVT. OF H.P., LALPANI, SHIMLA.

3. DIRECTOR ELEMENTARY EDUCATION, GOVT. OF H.P.

LALPANI, SHIMLA

4. THE PRINCIPAL, GOVT. SENIOR SECONDARY SCHOOL BANKALAN, TEH. NAHAN, DISTT. SIRMAUR, H.P.

...RESPONDENTS (SH. ASHOK SHARMA, A.G. WITH SH. RAJINDER DOGRA, SR. ADDL. A.G., SH. BHUPINDER THAKUR, SH. YUDHBIR THAKUR, DY. A.GS. AND SH. RAJAT CHAUHAN, LAW OFFICER, FOR RESPONDENTS-

STATE)

This Petition coming on for orders this day, the Hon’ble Mr.

Justice Tarlok Singh Chauhan, passed the following:-

O R D E R

The instant petition has been filed for the grant of following substantive reliefrs:-

(i) That a writ in the nature of certiorari may kindly be issueod for quashing the order dated 01.10.2010 Annexure P-

11 passed by the respondent No. 4.

(ii) A writ in the nature of mandamus may kindly be issued directing the respondents refund the recovered amount from the salary of the petitioner to the petitioner.

2. The issue regarding recoveries has been decided by this Court in the batch of petitions, lead case being CWPOA No. 3145/2019, titled S.S. Chaudhary Vs. State of H.P. & Others decided on 24.03.2022, wherein, after taking into consideration entire law on the subject, this Court has laid down the following parameters where recovery by the employer would be permissible/impermissible from the employee. Paragraph 35 whereof reads 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 whoere 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 otherr 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 be far outweigh the equitable balance of the employer’s right to recover.

(vi) Recovery on the basis of undertaking from the Cemployees 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 hfar 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 i 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, sufÏciently channelized 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.”

3. At this stage, it would be apt to refer to a recent judgment rendered by Hon’ble Supreme Court in Thomas Daniel Vs. State o