Allowed¶51

Ashok Kumar v. the Hpsebl

Service law – Recovery of excess payment – Retired employee

Himachal Pradesh HC18 Aug 2025CWP/16351/2024

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What is this about?

Recovery of excess payment from retired employee impermissible; pay refixation/reduction 11 years after retirement quashed; HPSEBL; time bound promotional scale (TBPS); CWPOA No.3782 of 2019; LPA No.30 of 2022; COPC No.78 of 2022; pay fixation orders dated 02.08.2022 and 15.11.2022; State of Punjab v. Rafiq Masih (2015) 4 SCC 334; Thomas Daniel v. State of Kerala 2022 SCC OnLine SC 536; refund of recoveries; no recovery from pension; High Court of Himachal Pradesh; Sandeep Sharma, J.; CWP No.16351 of 2024; decision dated 18.08.2025.

What did the court decide?

Impugned order dated 18.08.2023 (Annexure P-6) quashed and set aside; direction to respondent not to effect any recovery from the petitioner's pension; amounts, if any, already recovered to be refunded forthwith. ¶51

Ashok Kumar Vs the Hpsebl — Himachal Pradesh HC (2025) — LawSathi Research

What the court decided

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Outcome

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Issue for consideration

Whether, after the petitioner's retirement, the respondent can be permitted to recover the pay refixed/reduced vide order dated 18.08.2023, the said pay having been fixed pursuant to the directions in CWPOA No.3782 of 2019 upheld in LPA No.30 of 2022.

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Court's answer

There was no occasion for the respondent to recover the amount, since it was allowed to the petitioner pursuant to the direction of the learned Single Judge in CWPOA No.3782 of 2019, further upheld by the Division Bench in LPA; and even if it is presumed the amount was paid inadvertently, recovery from the petitioner after his retirement is impermissible.

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Ratio / Principle

The impugned order dated 18.08.2023 (Annexure P-6), whereby the petitioner's last pay was reduced and refixed to his detriment after 11 years of his retirement, is quashed and set aside; the respondent is directed not to effect any recovery from the petitioner's pension, and any amount already recovered shall be refunded to him forthwith.

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Detailed headnote1 paragraphs

Service law — Recovery of excess payment — Retired employee — Petitioner, who retired as Senior Accounts Officer on 31.03.2012, had his pay refixed/reduced (to Rs. 39,720/-) vide office order dated 18.08.2023 (Annexure P-6) issued in compliance with observations of the Accounts Officer, although his pay had been fixed at Rs. 42,090/- vide orders dated 02.08.2022 and 15.11.2022 pursuant to the judgment in CWPOA No.3782 of 2019 (granting time bound promotional scales), which was upheld in LPA No.30 of 2022. Held, placing reliance on State of Punjab v. Rafiq Masih (2015) 4 SCC 334 (recovery from retired employees impermissible) and Thomas Daniel v. State of Kerala (2022 SCC OnLine SC 536) (no recovery of excess amount from ex-employee after delay of 10 years), that there was no occasion for recovery, and even if the payment was presumed inadvertent, recovery after retirement could not be permitted; the impugned order dated 18.08.2023 was quashed and set aside, with directions not to effect recovery from pension and to refund amounts already recovered forthwith. Petition allowed.

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2025:HHC:27721

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No.16351 of 2024 Date of Decision: 18.08.2025

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__________________________________________________________ Shri Ashok Kumar …….Petitioner Versus HPSEBL ….Respondent _________________________________________________________ Coram:_ Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?¹ For the Petitioner: Mr. M.A. Safee and Mr. Pranav Kaushal, Advocates. For the Respondent : Mr. Ravinder Thakur, Advocate.

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Sandeep Sharma, Judge (oral):

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By way of instant petition, petitioner has prayed for

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following main reliefs:

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i) That the writ in the nature of Certiorari or any other appropriate writ, order or directions may kindly be issued, quashing the action of the respondents and the impugned communication/order dated 18.08.2023 (Annexure P-6), whereby the last pay of the petitioner has been reduced and refixed to his detriment that too after 11 years of his retirement and subsequent recovery has been ordered to be affected from the Petitioner being patently illegal, arbitrary,discriminatory, and unconstitutional and against the settled law of service jurisprudence. ii) That the writ in the nature of Mandamus or any other appropriate writ, order or directions may kindly be issued, directing the respondents to not to effect the recovery from the Petitioner and be further directed to refund the recoveries already made from the petitioner with interest @ 12% per annum.

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Petitioner herein though was initially appointed as SAS (Superintendent) (NG) on 17.10.1990, but he retired from the post of

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Senior Accounts Officer on 31.03.2012. While petitioner was in service,

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1 Whether the reporters of the local papers may be allowed to see the judgment?

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H.P. State Electricity Board Supervisory Accounts Services Association filed original application before the erstwhile Himachal Pradesh State Administrative Tribunal, which subsequently came to be transferred to this Court in the year 2019 and was registered as CWPOA No.3782 of 2019, seeking therein direction to respondents to grant the petitioner’s association the time bound promotional scales on completion of 9/16 years of service from the date of their joining the induction post of SAS Superintendents (NG) with all consequential benefits and to pay arrears along with interest @ 18% p.a.

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Vide judgment dated 27.08.2021, Coordinate Bench of this Court allowed the afore petition and held all members of the Association entitled to the benefit of time bound promotional scale on completion of 9/16 years of service, from the date of their eligibility, with the further direction to respondent to pay them the arrears along with interest @ 7% per annum.

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Though respondent made challenge to aforesaid judgment passed by learned Single Judge before this Court in LPA No.30 of 2022, titled H.P. State Electricity Board Vs. HPSEB Supervisory Accounts Services Association , but same also came to be dismissed vide judgment dated 23.04.2022 by the Division Bench of this Court. Since despite there being aforesaid direction issued by the learned Single Judge, which was further upheld in the LPA filed by the respondent, needful was not done, Association, as detailed hereinabove, filed

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contempt petition bearing COPC No.78 of 2022, wherein compliance came to be filed at the behest of respondent, thereby stating that pay of some of the member of petitioner’s Association in CWPOA No.3782 of 2019 has been fixed as per the judgment and pay of the left-out persons shall also be fixed accordingly.

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Now vide office order dated 18.08.2023 (Annexure P-6), in compliance to observations made by the Accounts Officer, pay of the petitioner, who retired as Senior Accounts Officer on 31.03.2012, came to be refixed, as a result thereof, pay of the petitioner, which he was in receipt, pursuant to directions passed by this Court in CWPOA No.3782 of 2019, came to be revised/reduced to 39,720/-. In afore background,₹ petitioner has approached this Court in the instant proceedings, paying therein for reliefs, as have been reproduced hereinabove.

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Pursuant to notices issued in the instant proceedings, respondent-Electricity Board has filed reply, wherein facts, as have been taken note hereinabove, have not been disputed, rather attempt has been made by the respondent to refute the claim of the petitioner on the ground that departmental candidate who passes the SAS Part-I, is inducted/appointed as Accountant (now re-designated as Superintendent (Divisional Accounts) and the candidate who passes the SAS Part-II and have rendered three years service as Superintendent (Divisional Accounts) is appointed/inducted as Superintendent (Non-Gazetted) (now re-designated as Assistant Accounts Officer on and w.e.f. 09.01.1996),

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subject to availability of vacancies and merit of the candidate in the batch in which he/she passes the examination. It is further averred in the reply that induction/appointment in the grade of Superintendent (Divisional Accounts) as also in the grade of Assistant Accounts Officer was further subject to fulfillment of the provisions of the Recruitment and Promotion regulations. Respondent has stated in its reply that since petitioner has passed the SAS Part-I examination, therefore, he was inducted/appointed as Accountant (re-designated as Superintendent) (Divisional Accounts) on and w.e.f. 24.02.1984, thereafter the petitioner also passed the SAS Part-II examination and he was inducted/appointed as SAS Superintendent (Non-Gazetted) on and w.e.f. 17.101990 in the pay-scale of 2100-3700 (with initial start of 2100/-). It is averred in the₹ ₹ reply that on scrutiny and examination of the pay fixation orders dated 02.08.2022 and 15.11.2022, it has been noted by the Accounts Officer (Pay Fixation) that the pay of the petitioner has been wrongly fixed on higher side inasmuch as he was also extended the benefit of promotional increment even on his actual promotions to the post of Accounts Officer and Sr. Accounts Officer while the said benefit was not admissible under the Pay Regulations to the petitioner as it was granted to him in advance on the grant of 1^st and 2^nd TBPS. Therefore, the pay-fixation of the petitioner was revised and correct pay-fixation order’s dated 18.08.2023 has been passed/issued by the competent authority, after vetting of the pay of the petitioner at all stages by the Accounts Officer (Pay Fixation).

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It has further been stated in the reply that wrong once detected cannot be allowed to be perpetuated any longer.

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Since pay of the petitioner was wrongly and inadvertently fixed by granting the promotional increment at the stage of his actual promotion, particularly when the said benefit stood already extended and availed by him at the time of grant of 1^st and 2^nd TBPS, therefore, the respondent is well within its rights to revise the pay-fixation and to issue the correct pay-fixation orders as contained in order dated 18.08.2023. In nutshell, case of the respondent, as has been projected in the reply is that petitioner was wrongly and inadvertently fixed by granting the promotional increment at the stage of his actual promotion, particularly when the said benefit stood already extended and availed by him at the time of grant of 1^st and 2^nd time bound promotion scale, but there is no specific denial that 1^st and 2^nd time bound promotion scale was granted to the petitioner pursuant to implementation of judgment passed by this Court in CWPOA No.3782 of 2019, which was further upheld by the Division Bench of this Court in LPA, detailed hereinabove.

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Though attempt has been made by respondent to carve-out a case that pay of the petitioner was inadvertently fixed in wrong pay against the spirit of HPSEBL (Revised Pay) Regulations 2009, read with Office Order No.3 dated 16.08.2012 (Annexure R-1) applicable on and w.e.f. 01.01.2006, but there is not dispute that aforesaid plea proposed to be set-up by respondent already stands considered and rejected by

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the learned Single Judge, while passing judgment dated 27.08.2021 in CWPOA No.3782 of 2019, which was further upheld by Division Bench of this Court in LPA No.30 of 2022.

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As has been noticed hereinabove, respondent itself filed compliance affidavit in Contempt Petition No.78 of 2022, thereby stating that pay of some of the petitioner in CWPOA No.3782 of 2019 has been fixed at 42,090/- and pay of the left-out persons shall also be fixed₹ accordingly and in pursuant to aforesaid undertaking given to this Court, vide order dated 02.08.2022 & 15.11.2022 (Annexure P-5 Colly), pay of the petitioner was fixed at 42,090/-, which now after his retirement is₹ sought to be recovered on the grounds, as detailed hereinabove.

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Though in the case at hand, there is no occasion, if any, for respondent to recover the amount for the reason that such amount was allowed to petitioner pursuant to direction passed by learned Single Judge in CWPOA No.3782 of 2019, which was further upheld by the Division Bench of this Court in LPA, detailed hereinabove, but even if it is presumed that aforesaid amount was not payable to the petitioner, rather same was paid in inadvertently, question which needs to be ascertained in the instant proceedings is, “whether after petitioner’s retirement, respondent can be permitted to recover the aforesaid amount or not?” 11. In the case of State of Punjab and Others v. Rafiq Masih (White Washer) and Others , (2015) 4 SCC 334, Hon’ble Apex Court held as under:-

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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. (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 employer. 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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(emphasis supplied)

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In afore judgment, Hon’ble Apex Court further held that

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any step of reduction in the pay-scale and recovery from a Government employee would tantamount to a punitive action because

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the same has drastic civil and evil consequences and as such, held

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the same to be bad, especially when such recovery is made after a long period.

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Hon’ble Apex Court in case titled as Thomas Daniel v. State of Kerala and Others , 2022 SCC OnLine SC 536, held that the

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State cannot recover excess amount paid to the ex-employee after the delay of 10 years.

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Consequently, in view of the above as well as law taken into consideration, this Court finds merit in the present petition and accordingly the same is allowed. Impugned order dated 18.08.2023 (Annexure P-6), whereby last pay of the petitioner has been reduced and refixed to his detriment, that too after 11 years of his retirement, is quashed and set-aside with the further direction to respondent to not to affect any recovery from the pension of the petitioner and amount, if any, recovered, prior to passing the instant judgment, shall be refunded to him forthwith.

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The present petition is disposed in the above terms, so also the pending miscellaneous application(s), if any.

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(Sandeep Sharma), Judge

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August 18, 2025 (Rajeev Raturi)

Ashok Kumar v. the Hpsebl

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Ashok Kumar v. the Hpsebl

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