Dileram Kathe Vs State of Chhattisgarh

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2025:CGHC:34860

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SMT NIRMALA RAO

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WPS No. 1399 of 2021

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1 - Dileram Kathe S/o Shri Kartikram Kathe, Aged About 62 Years Retd. Headmaster, Govt. Primary School, Mehandi, Block Pamgarh, District Janjgir Champa (Chhattisgarh) R/o Cheudih, Post Meu, Via Pamgarh, District Janjgir Champa Chhattisgarh., District : Janjgir-Champa, Chhattisgarh

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... Petitioner(s)

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versus 1 - State Of Chhattisgarh Through The Secretary, School Education Department, Mahanadi Bhavan, Mantralaya, Atal Nagar, Raipur, District Raipur Chhattisgarh, District : Raipur, Chhattisgarh 2 - Accountant General Raipur, District Raipur Chhattisgarh, District : Raipur, Chhattisgarh 3 - Joint Director, Treasury, Account And Pension, Bilaspur, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 4 - District Education Officer, Janjgir, District Janjgir Champa Chhattisgarh, District : Janjgir-Champa, Chhattisgarh 5 - Block Education Officer, Pamgarh, District Janjgir Champa Chhattisgarh., District : Janjgir-Champa, Chhattisgarh

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... Respondent(s)

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For Petitioner : Mr. S.K.Kushawaha, Advocate.
For State/Respondents : Mr. Raj Kumar Gupta, Addl. A.G.
For Respondent No.2 : Mr. Ashwani Shukla, Advocate

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Hon'ble Shri Justice Rakesh Mohan Pandey

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Order on Board

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22.07.2025

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1 . Challenge in this petition is to the order of recovery of Rs.1,10,394/-, which has been issued vide order dated 6.9.2020 after the retirement of the petitioner. It is not in dispute that the petitioner retired after rendering services as a Headmaster, Government Primary School on

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31.08.2020. It is contended that the petitioner was served with a notice on 6.9.2020 to deposit the amount of excess payment to finalise his pension case. The petitioner contends that the said recovery was made by way of an arm-twisting method. Consequently, the petitioner deposited the amount mentioned in the recovery notice Rs.1,10,394/so that his pension case may finalize. Learned counsel for the petitioner would also submit that the issue involved in the present case is squarely covered with the law laid down by Hon’ble Supreme Court in the matter of State of Punjab & Others Vs. Rafiq Masih (White Washer) & Others reported in 2015 (4) SCC 334 . It is contended that the petitioner held the post of Headmaster, Govt. Primary School, a Class-III post; therefore, as per the law laid down, the recovery from the petitioner is bad in law.

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2 . Learned State counsel would submit that the recovery is based on the background of the excess payment made to the petitioner at the time of the revision of the pay scale. The reference has been made to the undertaking given by the petitioner. It is also contended that the excess payment has been adjusted pursuant to the undertaking given by the petitioner. It is argued that as per the law laid down in case of High Court of Punjab & Haryana and Others v. Jagdev Singh reported in AIR 2016 SC 3523 , the undertaking having been given, the State is within its right to recover the amount of excess payment.

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3 . I have heard learned counsel for the parties and perused the documents present on record.

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4 . It is not in dispute that the petitioner was a Class-III government servant, as he was the Headmaster in the Primary School. It is also not

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in dispute that the order of recovery has been made after retirement. In the case of Rafiq Masih (supra), the Supreme Court in para 18 has laid down the following guidelines. For the sake of relevance, para 18 is reproduced hereunder:-

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“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 :

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(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

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(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

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(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.

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(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.

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(v) In any other 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 far outweigh the equitable balance of the employer's right to recover.

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5 . The reliance placed by the State in the case of High Court of Punjab & Haryana v. Jagdev Singh, (2016) 14 SCC 267, would show that in such a case, the Supreme Court permitted the recovery to be made on the basis of the undertaking given earlier. In the said case, the respondent was appointed as a Civil Judge and the Rules governing the service were, namely the Haryana Civil Service (Judicial Branch) and Haryana Superior Judicial Service Revised Pay Rules, 2001. Under those Rules, every officer was required to submit an undertaking that any excess which may be found to have been paid will be refunded to the Government either by adjustment against future payments due or otherwise. There was such a mandatory provision in the Rules themselves. The Supreme Court while deciding the said case emphatically referred to the service rules and held that the undertaking given in such circumstances would be executable and observed that the ratio of State of Punjab & Ors. v. Rafiq Masih (supra) cannot be applied uniformly.

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6 . In the instant case, as per Annexure P-3, the recovery has been made for the period from 1.1.2006 till 01.07.2020. The undertaking was given at a belated stage by the petitioner. It is pertinent to mention here that in the Chhattisgarh Revision of Pay Rules, there is no provision for undertaking. Therefore, the ratio of judgment of Jagdev Singh (supra) would not attract.

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7 . Therefore, the ratio of judgment rendered in the case of State of Punjab & Ors. v. Rafiq Masih (supra) would be applicable.

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8 . The facts further would show that the petitioner was required to deposit an amount of Rs.1,10,394/- after his retirement. The petitioner was

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superannuated on 31.08.2020 and as per the averments, the said deposit was required to be made by 3.7.2020 in the Treasury, which was done by the petitioner under protest. Therefore, the deposit under such duress by the petitioner lies on the dark side of both illegality and humanitarian principles. Consequently, it would be against the public policy and contrary to the fundamental rights and the directive principles enshrined in the Constitution. Accordingly, it cannot be legalized or insulated.

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9 . As a result, the order of recovery dated 6.9.2020 issued by respondent No.5 is hereby quashed. It is directed that the amount of Rs.1,10,394/deposited by the petitioner shall be refunded to him by the State within a period of 60 days with interest of 6% per annum.

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10. In view of the above, the petition is allowed to the above extent.

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Sd/- (Rakesh Mohan Pandey) Judge

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Nimmi

Dileram Kathe v. State of Chhattisgarh

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Dileram Kathe v. State of Chhattisgarh

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