Recovery of excess payments made beyond 5 years is impermissible; relief granted only for payments beyond the statutory five-year period.

O R D E R

The present writ petition has been filed challenging the proceedings bearing Na.Ka.No.053130/2023 dated 24.03.2023, whereby the pay of the petitioner, who was working as BT Assistant (Tamil), was refixed consequent to the cancellation of incentive increments that had been granted in her favour.

2. The petitioner is stated to have already submitted an application for voluntary retirement; however, she has not been permitted to proceed with the same due to the pendency of the present writ petition.

3. In the light of the above and the various orders passed by this Court, the learned counsel for the petitioner submitted that the petitioner does not intend to press the challenge regarding the re-fixation of pay. However, it was contended that the recovery sought to be effected through the impugned proceedings is contrary to the orders passed by the Hon'ble Apex Court in the case of State of Punjab and others vs. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334. Thus, she contended that no recovery can be effected from the petitioner under the guise of the impugned proceedings.

4. On the other hand, Mr.N.Satheesh Kumar, learned Additional Government Pleader appearing for the respondents, submitted that the petitioner is still in service and in terms of the order passed by the Hon'ble Apex Court in the case of State of Punjab and others vs. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334, the respondents are entitled to recover the amounts paid to the petitioner in excess of her entitlement for a period of five years prior to the date of the impugned order.

This Court has carefully considered the submissions made on either side and also perused the entire material on record.

Paragraph No.18 of the judgment in Rafiz Masih case is relevant and the same is extracted hereunder:-

“18.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 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 iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”

5. From a perusal of Clause (iii) of Para 18 above, it is evident that amounts paid in excess of the entitlement of a Government servant, for a period beyond five years, are not permissible to be recovered.

6. Mr. N. Satheesh Kumar, learned Additional Government Pleader appearing for the respondents, brought to the notice of this Court the order passed in W.P. (MD) No.1292 of 2025, dated 04.06.2025, where a learned Division Bench of this Court considered an identical issue and held as follows:

“4.There is no serious dispute that the pay of the first respondent was erroneously fixed. The only question that calls for consideration is whether