Whether approved for reporting? 1¹Whether reporters of the local papers may be allowed to see the judgment?

_____________________________________________________

For the petitioner : Mr. Ashwani Sharma, Advocate.

For the respondents : Mr. R.P. Singh, Deputy Advocate General.

Ajay Mohan Goel, Judge (Oral)

By way of this writ petition, the petitioner has inter alia prayed for the following reliefs:-

“(i) To issue a writ of certiorari or direction in nature thereof, quashing the impugned order dated 03-01-2022 and 24-05-2023 being Annexure P-1 of the writ petition, as unconstitutional and illegal and contrary to the law and against the Judgment passed by this Hon'ble Court in CWP/6427/2022 titled as Nityanand Sharma and Others Vs State and Others along with connected matters;

(b) to issue a further writ of mandamus or an appropriate writ, order or direction in nature thereof directing the respondent department to release the gratuity along with interest which has been withheld by the respondent authorities and to repay the amount if any recovered from the petitioner during the pendency of this Civil Writ Petition along with interest thereon @18%;

”

2. The petitioner is ag grieved by Annexure P-1, in terms whereof, the pay of ther petitioner stands revised and certainrecoveries have been ordered to be effected from him.

3. Learned oCounsel for the petitioner has submitted that as the office orCder relating to recovery was passed after the retirement of the petitioner, the same is not sustainable as no recovery can be ehffected from a retired employee in terms of the law declared by Hon’ble Supreme Court of India in State of Punjab vs. Rafiq Masih (White Washer), (2015) 4 SCC 334. He further submitted that the petitioner also happens to be a Class-III employee and on this countalso, no recovery could be effected from him.

4. On the other hand, learned Deputy Advocate General has drawn the attention of the Court to the reply filed by the State in general and paras 9 to 11 of the preliminary submissions thereof inparticular and has justified the act of the State.

5. Learned Counsel for the petitioner in rebuttal has referred to the judgment passed by Hon’ble Coordinate Bench of this Court in CWP 6427 of 2022, titled as Nitya Nand Sharma vs. State of Himachal Pradesh and others and other connected matters, decided on 11.10.2023 and has submitted that Nitya Nand was also similarly situated as the present petitioner and in his case also, his pay was re-fixed and recoveries were ordered. Learned Counsel further submitted that whereas thet Hon’ble Coordinate Bench did not interfere with the re-fixation of the pay but ordered that norecoveries shall be effected from the petitioner in said case.

6. Having heard learned Counsel for the petitioner as well as learned Deputy Advocate General and having perused the pleadi ngs as well as the documents appended therewith, including the judgment being relied upon by the learned Counsel for the petitioner, this Court is of the considered view that in the light of the fact that the recovery has been ordered to be made from the petitioner after his superannuation, the said order is not sustainable in the eyes of law in light of the law. The Hon’ble Supreme Court of India in State of Punjab vs. Rafiq Masih (White Washer), (2015) 4 SCC 334, inter alia, has been pleased to hold that no recoveries can beeffected from a Class-III employee or from a retired employee.

7. Herein, incidentally, the petitioner both happens to be a Class-III as well as a retired employee. Therefore, obviously, the recovery that has been ordered to be made from the petitioner is not sustainable in law. This petition is allowed on this limited point.

8. Though, this Court is not interfering with the order of re-fixation of the pay of the petitioner, but the order of recovery dated 03.01.2022 and 24.05.2023 (Annexure P-1) is quashed and set aside, with direction to the respondents not to effect any recovery on the basis of