Anil Xess Vs State of Chhattisgarh

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2026:CGHC:11343

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 798 of 2024

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1 - Anil Xess S/o Cyril Xess Aged About 46 Years Presently Working As Teacher (L.B.) At Govt. Middle School Sardega, Village Sardega, Block Lailunga, Tah. Lailunga, Distt. Raigarh, C.G. Pin-496115

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--- Petitioner(s)

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versus

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1 - State Of Chhattisgarh Through Secretary, Education Department, Mantralaya, Mahanadi Bhawan, Nawa Raipur, Atal Nagar, Distt. Raipur, C.G.

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2 - District Education Officer Raigarh, Distt. Raigarh, C.G.

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3 - Block Education Officer Lailunga, Distt. Raigarh, C.G.

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4 - Chief Executive Officer Zila Panchayat Raigarh, Distt. Raigarh, C.G.

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--- Respondent(s)

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(Cause title is taken from CIS system)

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For Petitioner : Mr. Animesh Verma, Advocate For Respondent-State : Mr. Lav Sharma, P.L.

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SB: Hon'ble Shri Justice Parth Prateem Sahu Order On Board

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10/03/2026

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Petitioner has filed this writ petition seeking following relief (s) :-

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BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN

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“10.1 Issue a writ in the nature of mandamus by setting aside the recovery notice dated 18.10.2023 (Annexure P-1) initiated by the Block Education Officer Lailunga, District Raigarh.

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10.2 Issue a writ in favour of the petitioner and against the respondents by directing them to refund the paid arrears.

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10.3 Issue any other relief which this Hon’ble Court deems fit in the facts and circumstances of the case, in the interest of justice.”

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Learned counsel for petitioner submits that petitioner, who is holding the post of Teacher (LB) has been paid the amount towards arrears of pay on account of payment of revised pay scale. Subsequently, letter is issued to petitioner on 18.10.2023 (Annexure P-1) for recovery of the amount stating therein that excess payment has been made to petitioner. Petitioner being Class-III employee, recovery is not permissible, even if excess amount is paid mistakenly. In support of his contention he places reliance on the decision of Hon’ble Supreme Court in case of State of Punjab & ors vs. Rafiq Masih (White Washer) etc., reported in (2015) 4 SCC 334, in case of Thomas Daniel Vs. State of Kerala & Ors (2022 SCC Online SC 536, and in case of High Court of Punjab and Haryana and others vs. Jagdev Singh, reported in (2016) 14 SCC 267 , and submits that recovery of amount paid mistakenly to Grade-III employee is not permissible.

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Learned State counsel opposes the submission of learned counsel for petitioner and would submit that the amount for which petitioner is entitled after re-fixation of regular pay scale from 30.06.2016, however, arrears of revised pay scale has been computed from date of initial appointment, therefore, excess amount has been paid to petitioner. At the time of computation of amount or payment of arrears, petitioner has given undertaking, therefore, there is no error in the action taken by respondents by issuing a letter Annexure P-1 for recovery of the amount of excess payment made to petitioner.

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At this stage, learned counsel for petitioner submits that even if undertaking is given by petitioner, then also in terms of decision of Hon’ble Supreme Court, recovery from Class-III employee is impermissible, therefore, no recovery can be affected from the petitioner. He further contended that from such employee even if some consent is obtained subsequent to making of excess payment then also recovery is not permissible and placed reliance on the order passed by the Division Bench of this Court in WA No.264/2020 (State of CG vs Labha Ram Dhruv) and WA No.265/2020 (State of CG and others vs. Roshan Lal Baghel). He also submits that the issue with regard to undertaking given by the employees came for consideration before the Full Bench of High Court of Madhya Pradesh in case of The State of Madhya Pradesh & Ors. Vs. Jagdish Prasad Dubey, reported in 2024 Vol.-II MPLJ 198 wherein it is held that undertaking is not enforceable.

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I have heard learned counsel for parties and also perused the reply submitted by State.

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In the case of Rafiq Masih (supra), Hon’ble Supreme Court considering the issue of recovery of amount paid in excess has summarized the situations where in certain cases, recovery from the employee by the employer would not be permissible in law. In Para-18 it was observed thus:-

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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 herein above, we may, as a ready reference,

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summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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(i) Recovery from employees belonging to ClassIII and Class-IV service (or Group 'C' and Group 'D' service).

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

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(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.

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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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Perusal of the observation made by Hon'ble Supreme Court in the case of Rafiq Masih (supra) shows that recovery from employees belonging to Class-III and Class-IV service group has been held to be impermissible. Relying upon the decision in the cases of Rafiq Masih (supra), Hon'ble Supreme Court in the case of Thomas Daniel (supra) has further held the recovery from the employees after long time to be unjustified.

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In case of Jagdev Singh (supra) , Hon’ble Supreme Court though had considered the issue with regard to the undertaking, however, Para-10 (i) decision in case of Rafiq Masih (supra) has not been overruled or interfered. This aspect is also considered by the Division Bench of this Court in case of Labha Ram Dhruv (Supra) and observed thus:

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“9.In the case at hand, the Revision of Pay Rules, 2009 and 2017 do not make any enabling provision reserving option for the employer to seek refund of the amount paid in excess, by making the employee to furnish an undertaking. Even if we conclude, for the sake of arguments, that even in the absence of enabling provision under the Rules, undertaking given by the employee would operate, the fact remains that against the classes of employees against whom recovery would be impermissible in law, as held by the Hon’ble Supreme Court in the matter of Rafiq Masih (Supra), recovery from the employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service) would still be impermissible in law. Meaning thereby that even when undertaking is submitted by the employee, but he otherwise belongs to Class-III and Class-IV service, and the amount has been paid more than 5 years back, the law declared by the Hon’ble Supreme Court in the matter of Rafiq Masih (Supra) would still hold the field in favour of such employees, because the judgment in the matter of Rafiq Masih (Supra) has not been overruled, but only clarified, by the Hon’ble Supreme Court in its later judgment in the matter of Jagdev Singh, Supra”

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From perusal of the above it is clear that the recovery from the employees belonging to Class-III and Class-IV category (or Group 'C' and Group 'D' service) is impermissible in law. Meaning thereby that even if undertaking is submitted by the employee, but he otherwise

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belongs to Class-III or Class-IV service, recovery of excess amount paid from him/her is impermissible.

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In the case at hand, admittedly, petitioner is working on the post of Class III cadre in the Education Department. It is also not the case of respondents that petitioner had received excess payment by practicing fraud or by making misrepresentation. Thus, petitioner cannot be compelled to refund the amount which has been paid by the respondents on their own without any misrepresentation or fraud on the part of petitioner.

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So far as undertaking/consent submitted by petitioner is concerned, the Division Bench of this High Court in Labha Ram Dhruv (supra), while considering the issue of undertaking has held that giving of such an undertaking is not a voluntary act and recovery on that basis, therefore, cannot be sustained. The Division Bench in Para-9 has held thus:-

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“9.In the case at hand, the Revision of Pay Rules, 2009 and 2017 do not make any enabling provision reserving option for the employer to seek refund of the amount paid in excess, by making the employee to furnish an undertaking. Even if we conclude, for the sake of arguments, that even in the absence of enabling provision under the Rules, undertaking given by the employee would operate, the fact remains that against the classes of employees against whom recovery would be impermissible in law, as held by the Hon’ble Supreme Court in the matter of Rafiq Masih (Supra), recovery from the employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service) would still be impermissible in law. Meaning thereby that even when undertaking is submitted by the employee, but he otherwise belongs to Class-III and

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Class-IV service, and the amount has been paid more than 5 years back, the law declared by the Hon’ble Supreme Court in the matter of Rafiq Masih (Supra) would still hold the field in favour of such employees, because the judgment in the matter of Rafiq Masih (Supra) has not been overruled, but only clarified, by the Hon’ble Supreme Court in its later judgment in the matter of Jagdev Singh, Supra.”

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In light of above decisions and in the given facts and circumstances of the case, in the considered opinion of this Court, the respondents cannot be permitted to effect recovery from the petitioner of the amount paid in excess and being so, recovery against the petitioner is not sustainable.

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Consequently, writ petition is allowed. Impugned order/notice (Annexure P-1) of recovery passed against petitioner is hereby quashed. If recovery is already made, respondents are directed to refund the amount so recovered from petitioner within a period of four months from the date of receipt of order, failing which aforesaid amount shall carry interest @ 6% per annum till actual date of payment.

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Accordingly, this petition is allowed.

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Sd/(Parth Prateem Sahu) Judge

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Balram

Anil Xess v. State of Chhattisgarh

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Anil Xess v. State of Chhattisgarh

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