Karam Chand vs State Of Uttarakhand & others

Judgment

1. Pet it ioners are serving as Assist ant Teacher, Junior High School/ Headm ast er, Governm ent Prim ary School in t he Educat ion Depart m ent of t he St at e. All t he pet it ioners have ret ired from service on different dat es. They are aggrieved by recovery m ade by t he Aut horit ies of Educat ion Depart m ent from t heir ret iral dues.

2. Since com m on quest ions of fact and law are involved in t hese pet it ions, t herefore, t hese pet it ions are clubbed t oget her and decided by t his com m on 1 j udgm ent . However, t he sake of brevit y and convenience, fact s of WPSS No. 629 of 2024 alone are being considered and discussed.

3. I n WPSS No. 629 of 2024, pet it ioner has sought t he following relief: - ( i) I ssue a w rit , or der or dir ect ion in t he nat ur e of m andam us com m anding/ direct ing t he r espondent s t o ret ur n t he r ecovered am ount of Rs. 5,64,568/ - along wit h 18% int er est from t he dat e of recover y upt o dat e of it s r ealizat ion t o t he pet it ioner, which was r ecover ed from t he grat uit y of t he pet it ioner.

4. According t o pet it ioner, he was appoint ed as Assist ant Teacher in Governm ent Prim ary School, Shahipur, Block Khanpur, Dist rict Haridwar in t he pay scale of ₹4500- 7000, on 31.12.2005; he was prom ot ed in t he year 2008 t o t he post of Assist ant Teacher, Governm ent Junior High School in t he pay scale of ₹5500- 9000; he com plet ed age of superannuat ion, i.e. 60 years, on 03.01.2021, however, he was perm it t ed t o serve as Teacher t ill end of academ ic session, i.e.

31.03.2021, in t erm s of Governm ent Policy. A sum of ₹5,64,568/- was recovered from t he am ount payable as Grat uit y t o him , vide order dat ed 26.07.2022 passed by Senior Treasury Officer.

A count er affidavit is filed by Mr. Ashut osh Bhandari, Dist rict Prim ary Educat ion Officer, Haridwar. Relevant ext ract of para 4 of t he count er affidavit , which indicat es t he defence t aken by t he Depart m ent , is reproduced below: - “As per t he fit m ent t able, m inim um basic pay in Grade Pay Rs. 4600/ - is pay band of Rs. 17140/ - . The pet it ioner has t able ( annexure no. 2 t o t he writ pet it ion) and t hus, received t he benefit of received fit m ent 2 t o t he t he knowledge of t aking advant age of erroneous pay excess am ount by det erm inat ion. When t he fact of wr ong pay fixat ion of t eachers cam e respondent aut horit ies, t hereaft er, an order was issued by t he Direct or, Prim ary Educat ion on 28.04.2018 and direct ions were given t o all Dist rict Educat ion Officers t o proceed for recovery of excess salary/ paym ent m ade as a result of t he said erroneous det erm inat ion t o t he t eachers, against which Writ Pet it ion No. 990/ SS/ 2018 ( m ain pet it ion) Manoj Kum ar Vs. St at e of Ut t arakhand and ot hers and ot her connect ed Writ Pet it ions were filed before t his Hon’ble High Court in t he year 2018. I n t he pet it ions in quest ion, in t he year 2018, t he Hon’ble Court passed an int erim order direct ing t he respondent aut horit ies not t o m ake any recovery from t he concerned pet it ioners, but no such pet it ion was filed by t he pet it ioner at t hat t im e/ The pet it ioner ret ired on 3.7.2020 and Rs. 5,35,121/ - were recovery from t he ret iral dues of t he pet it ioner vide paym ent order dat ed 11.5.2022 ( annexure no. 4 t he writ pet it ion) . The pet it ioner approached t he Hon’ble Court aft er 2 years of his ret irem ent . I t is subm it t ed t hat vide order dat ed 6.11.2023, t he Hon’ble Court part ly allowed t he Writ Pet it ion No. 990/ SS/ 2023 ( m ain pet it ion) Manoj Kum ar Vs. St at e of Ut t arak hand and ot hers and ot her connect ed bunch of writ pet it ions. But t he recovery of t he said pet it ioner has been m ade before t he decision of t he Hon’ble Court and in t he Hon’ble High Court order dat ed com pliance of t he 06.11.2023, no concerned em ployees.” recovery has been m ade t o

6. Learned St at e Counsel subm it s t hat pet it ioner was wrongly given m onet ary benefit s in excess of what he was ent it led t o, t herefore, Depart m ent al Aut horit ies are well wit hin t heir right t o recover excess am ount paid t o him . He relies upon Sect ion 72 of I ndian Cont ract Act , 1872 for cont ending t hat pet it ioner cannot ret ain t he am ount , which was paid t o him in excess of his ent it lem ent .

7. From t he pleadings m ade in count er affidavit , one t hing is clear t hat pet it ioner is not responsible in any m anner for get t ing t he ext ra am ount . What ever am ount was paid t o him was on account of decision t aken by Depart m ent al Aut horit ies and it is not t he 3 case of respondent s t hat pet it ioner played fraud or he was ot herwise inst rum ent al in get t ing t he ext ra am ount . Learned St at e Counsel has relied upon a j udgm ent dat ed 09.10.2025 rendered by t his Court in WPSS No. 1810 of 2022 wit h ot her connect ed m at t ers, where libert y was given t o Depart m ent al Aut horit y t o re- fix t he pay of pet it ioners at t he appropriat e level, as per applicable Governm ent Policy/ Rule.

8. Their Lordships’ in t he case of St at e of Punj ab & ot hers vs. Rafiq Masih ( Whit e Washer) , report ed in ( 2015) 4 SCC 334, have held t hat no recovery can be m ade from em ployees, who have ret ired from service or t hose who are due t o ret ire wit hin one year of t he order of recovery. Para no. 18 of t he said j udgm ent is reproduced below: - “ 1 8 . I t is not possible t o post ulat e all sit uat ions of hardship which would govern em ployees on t he issue of recovery, where paym ent s have m ist akenly been m ade by t he em ployer, in excess of t heir ent it lem ent . Be t hat as it m ay, based on t he decisions referred t o hereinabove, we m ay, as a ready reference, sum m arise t he following few sit uat ions, wherein recoveries by t he em ployers, would be im perm issible in law: ( i) Recovery from t he em ployees belonging t o Class I I I and Class I V service ( or Group C and Group D service) . ( ii) Recovery from t he ret ired em ployees, or t he em ployees who are due t o ret ire wit hin one year, of t he order of recovery. ( iii) Recovery t he excess paym ent has been m ade for a period in excess of five years, before t he order of recovery is issued. t he em ployees, when ( iv) Recovery in cases where an em ployee has wrongfully been required t o discharge dut ies of a higher post , and has been paid accordingly, even t hough he should have right fully been required t o work against an inferior post . ( v) I n any ot her case, where t he court arrives at t he conclusion, t hat recovery if m ade from t he em ployee, would be iniquit ous or har sh or arbit rary t o such an ext ent , as would far out weigh t he equit able balance of t he em ployer's right t o recover” . 4

9. The aforesaid view was reit erat ed by Hon’ble Suprem e Court in a recent j udgm ent rendered in t he case of Union of I ndia & ot hers vs. N.M. Raut & ot hers, report ed in 2024 SCC Online SC 3873. Relevant paragraphs of t he said j udgm ent are ext ract ed below: - “ 2 1 . I n ot her words, t he respondent s would be ent it led t o t he benefit s of t he MACPS only aft er t aking int o considerat ion all t he financial upgradat ions earned by t hem , in t erm s of t he CCS RP Rules. Financial upgradat ions under t he said Rules have t o be account ed for and w ill be t reat ed as financial upgradat ions earned for t he purpose of reckoning t he 10-year int ervals and t he t hree assured financial upgradat ions, in t erm s of Grade Pay, under t he MACPS. 2 2 . We are inform ed t hat , in t he present case, t he Governm ent of I ndia had im plem ent ed and execut ed t he MACPS by grant ing benefit s t o t he respondent s and, lat er on, recoveries were init iat ed. As m any of t he em ployees m ay have ret ired, in t erm s of t he decision of t his Court in “ St at e of Punj ab v. Rafiq Masih appropriat e t o direct t hat t he Union of I ndia will not effect any recovery of arrears from t he ret irees or t hose who are ret iring wit hin one year from t he dat e of pronouncem ent of t his j udgm ent . ( Whit e Washer) 10, we deem 2 3 . I n ot her cases, t he recoveries m ay be m ade aft er issuing not ice t o t he em ployee concerned, whose request for proport ionat e recovery over a period of t im e not exceeding t wo years, m ay be considered depending upon t he quant um of recovery which is t o be m ade. We also deem it appropriat e t o direct t hat t he appellant , Union of I ndia, will not charge int erest on t he am ount t o be recovered as t hey t hem selves had m ade t he paym ent and, t he issue being debat able, t o ask t he em ployees t o pay int erest at t his dist ant point of t im e m ay lead t o difficult y bot h in calculat ion as w ell as in paym ent . 2 4 . However, it is clarified t hat t he pension and t he pay scale, which are payable shall be re- det erm ined on t he basis of t his j udgm ent and will apply prospect ively wit h effect from 01.01.2025. 2 5 . Where recoveries have been m ade from t he ret irees, t he sam e shall be refunded. However, in t he case of serving em ployees, where recoveries have been m ade, t he sam e need not be refunded. 2 6 . We also clarify t hat we have not m ade any com m ent s or observat ions on any pet it ion/ appeal which challenging t he validit y and legalit y of Clause 8.1 of t he MACPS” 5

10. Learned St at e Counsel t hen t o a refers j udgm ent rendered by Hon’ble Suprem e Court in t he case of Dr. P.N. Shukla & ot hers vs. Union of I ndia & ot hers, report ed in AI R 2024 Suprem e Court 501. Para 60 of t he said j udgm ent is ext ract ed below: - “ 6 0 . Since during t he int erregnum , Respondent 4 had been unj ust ifiably paid salary in t he higher pay scale, one opt ion could be t hat what ever had been paid t o him t ill dat e, be left as such and his pay could be direct ed t o be re- fixed from a fut ure dat e. However, having regard t o t he level of t he post of Respondent 4 and t he m anner in which he was ext ended special t reat m ent at every st ep and was grant ed higher pay scale, we do not propose t o adopt t hat course as t his is not a case of any bona fide error. I t was a well- planned and deliberat e infract ion. We t he excess am ount paid t o Respondent 4, t hough in inst alm ent s and/ or from t he officer( s) , who were direct ly involved in t he decision- m aking process of grant ing undue benefit t o Respondent 4. Bot h should be m ade equally liable t o reim burse t he exchequer for t he am ount illegally disbursed t o Respondent 4. The exchequer should not be m ade t o suffer on t hat account and eit her of t wo shall have t o m ake good t hat loss of undue benefit grant ed t o Respondent 4. The appeal is allowed in t he aforesaid t erm s.” t herefore direct recovery of

11. The j udgm ent rendered in t he case of Dr. P.N. Shukla & ot hers vs. Union of I ndia & ot hers ( supra) is dist inguishable on fact . I n t hat case, it was found t hat em ployee concerned was wrongly ext ended special t reat m ent at every st ep and he was given higher pay- scale and non- pract icing allowance, knowing fully well and he is not ent it led t o such benefit and t he em ployee concerned was st ill cont inuing in service, t herefore, Hon’ble Suprem e Court perm it t ed recovery of excess am ount from him and/ or from t he Officers, who were responsible for grant ing undue benefit t o t he 6 em ployee concerned.

12. I n t he present case, t here is no allegat ion t hat som e undue favour was ext ended t o pet it ioner deliberat ely by som e Officer of t he Educat ion Depart m ent . I n fact , according t o respondent s, it was a bona fide m ist ake on t he part of t he Aut horit ies, which led t o excess paym ent t o pet it ioners. Since pet it ioners have ret ired from service, t herefore, in view of law declared in t he case of St at e of Punj ab & ot hers vs. Rafiq Masih ( supra) , t he excess am ount paid t o pet it ioners cannot be recovered aft er t heir ret irem ent .

13. Accordingly, t he writ pet it ions are allowed. Respondent s shall exam ine t he m at t er and pass necessary order for refund of t he am ount recovered t he ret iral dues of pet it ioners. However, t he Com pet ent Aut horit y shall be at libert y t o init iat e enquiry for ascert aining circum st ances under which excess paym ent was m ade t o t he pet it ioners and also t o t ake necessary act ion against t he concerned Officer, who is found responsible for deliberat e excess paym ent t o t he pet it ioners. ________________________ M A N OJ K UM A R TI W A RI , J.

10.11.2025 Aswal NITI RAJ SINGH ASWAL DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=eacc6757ee7881e933ff8934f07477005aa85f9802a3a08b08d1369512ea30f3, postalCode=263001, st=UTTARAKHAND, serialNumber=44EB54CBF00B7698CB6F10C2CE3D26F5C22DACF4F4610C1FE58A58531 726FBB0, cn=NITI RAJ SINGH ASWAL 7