Sukhwinder Kaur Vs the State of Hp

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2026:HHC:11132-DB

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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CWP No.5542 of 2020 Decided: 8 th April, 2026

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___________________________________________________________________ Sukhwinder Kaur ...Petitioner

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Versus

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State of Himachal Pradesh and others

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...Respondents

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____________________________________________________________________ Coram_ Hon'ble Mr. Justice Jiya Lal Bhardwaj, Judge Whether approved for reporting?¹

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For the petitioner: Mr. Vijender Katoch Advocate. For the respondents: Mr. Hemant Kumar Verma, Deputy Advocate General.

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Jiya Lal Bhardwaj, Judge (Oral)

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By way of present petition, the petitioner has

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prayed for the following substantive relief:-

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“i.) That the letter No 6426-29 dated 13.12.2019 issued by the Office of Superintendent of Jail, Lala Lajpat Rai District & Open Air Correctional Home Dharamshala, District Kangra (Annexure P-1) issued by the office of the Superintendent of District & Open Air Correctional Home Dharamshala, District-Kangra vide which the pay of the petitioner has been reduced and recovery has been ordered to be made from his salary, may very kindly be quashed and set aside.”

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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2

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As per the pleadings, the petitioner was appointed

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as a Dispenser with the respondents vide office order dated

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05.10.2007 (Annexure P-3) in the pay scale of Rs.4550-7220 with a start of Rs.4700/- in the H.P. Prisons Department and in sequel to the said appointment order, he joined on 15.10.2007.

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An Audit of District Jail Solan was conducted for

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the years 2006-2014 and vide para 3 of the audit objection, an amount of Rs.26,515/- was shown to be paid over and above to one Sanjeev Kumar Pharmacist on wrong fixation pay fixation w.e.f. 16.10.2007. After examining the said para of audit, it was found to be correct. Thereafter, directions were issued to all Jail Superintendents to re-fix the pay of similar situated pharmacists and as a result thereof, an office order dated 13.12.2019 (Annexure P-1) was passed, reflecting that the petitioner has been paid Rs.1,02,124/- in excess and thus the said amount is required to be recovered from her.

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The petitioner has averred in the petition that

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action on the part of the respondents to reduce the pay of the petitioner is highly arbitrary, unjust, illegal and since there was no fault on her part to get higher pay and even if excess amount has been paid, the same cannot be recovered. Not only this, no prior notice was ever issued and further no opportunity of being heard was given to her before passing the impugned order.

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The respondents filed reply to the petition and submitted that the recovery has been worked out by the Superintendent Jail, Lala Lajpat Rai, District & Open Air Correctional Home, District Kangra, Himachal Pradesh, in compliance with the instruction/clarification issued by the Finance (Pay Revision) Department to the Government of Himachal Pradesh, vide letter dated 06.11.2009 (Annexure R-1), regarding implementation of the Himachal Pradesh Civil Services (Revised Pay) Rules, 2009 and as per point 3 of the

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said instruction/clarification, a Government employee appointed after 01.01.2006 in the pre-revised pay scale of Rs.3120-5160/- (with initial start of Rs.3220/-) shall be fixed in the revised pay structure and will get initial pay of Rs.7810/as specified at Sr. No.4, Colum 8 of the Schedule. Similar formulation allowed higher initial pay in the pre-revised pay scale and consequently out of the total recovery of Rs.1,02,124/-, an amount of Rs.61,200/- only has been recovered from the petitioner till 30.11.2020 and the remaining amount of Rs.40,924/- is left to be recovered.

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It has been averred that during the audit of District Jail, Solan, H.P., for the period of 01/2006 to 11/2014,

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it was noticed by the Audit in audit para No.3, that the pay of one Sh. Sanjeev Kumar, Dispenser appointed on 16.10.2007

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was fixed in the pre-revised pay scale of Rs.4550-7220 with the initial start of Rs.4700/-. At the time of fixation of pay in the revised pay scale, his pay was fixed at Rs.8710/- + Grade

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Pay Rs.3000/-, whereas his pay should have been fixed in the minimum of the pay scale of Rs.8470/- plus grade pay of Rs.3000/-.

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After examining the matter, all the

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Superintendent Jails in Himachal Pradesh were directed to refix the pay of other similarly situated Dispensers, who have

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been appointed in the Department on or after 01.01.2006, and thereafter the recovery orders were issued by the Superintendent Jail, Lala Lajpat Rai, District & Open Air Correctional Home Dharamshala, District Kangra, H.P. and thus the order passed by the respondents is legal and does not require any interference.

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The petitioner has filed rejoinder to the reply and controverted the averments made in the reply.

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I have heard the learned counsel for the parties

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and also perused the record carefully.

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It is not in dispute that the petitioner had not

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made any misrepresentation when she was granted the pay

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scale and further she is holding a Class-III post. It is also not in dispute that the impugned order was passed after the audit para in respect of one Sanjeev Kumar. It is also not in dispute that the petitioner has not been issued any show cause notice before passing the impugned order, making recovery from her.

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The similar issue regarding recoveries has been decided by this Court in batch of petitions, lead case being CWPOA No.3145 of 2019 , titled, S.S. Chaudhary vs. State of Himachal Pradesh and others , decided on 24.03.2022, wherein, after taking into consideration entire law on the subject, this Court has laid down the parameters, where recovery by the employer would be

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permissible/impermissible from the employee. Paragraph 35 of the judgment reads as under:

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“35. In view of the aforesaid discussion, as held by Hon’ble Supreme Court in Rafiq Masih’s case (supra), it is not possible to postulate all situations

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of hardship, where payments have mistakenly been made by the employer, yet in the following situations, recovery by the employer would be impermissible in law:

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“(i) Recovery from employees belonging to Class-III 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. (vi) Recovery on the basis of undertaking from the employees essentially has to be confined to Class I/Group-A and Class-II/Group-B, but even then, the Court may be required to see whether the recovery would be iniquitous, harsh or arbitrary to such an extent, as would far overweigh the equitable balance of the employer's right to recover.

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(vii) Recovery from the employees belonging to Class-III and Class-IV even on the basis of undertaking is impermissible.

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(viii) The aforesaid categories of cases are by way of illustration and it may not be possible to lay down any precise, clearly defined, sufficiently channelised and inflexible guidelines or rigid formula and to give any exhaustive list of myriad kinds of cases. Therefore, each of such cases would be required to be decided on its own merit”

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The case of the petitioner clearly falls under clause

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(i) and (v) of the parameters laid down in the aforesaid judgment. As already noticed above, it is not the case of the respondents that the petitioner received the said benefit by making misrepresentation or playing fraud. She being ClassIII employee cannot be forced to pay the excess payment, made to her, by the respondents.

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The respondents have admitted in their reply that out of Rs.1,02,124/-, a sum of Rs.61,200/- has been recovered from her till 30.11.2020 and the remaining amount of Rs.40,924/- is yet to be recovered. Since the impugned order

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is unsustainable in law, the amount of recovery made by the

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respondents in sequel to the office order dated 13.12.2019 deserves to be refunded back to the petitioner.

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Consequently, the present petition is allowed; and

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the impugned order dated 13.12.2019 (Annexure P-1) is quashed and set aside; and the respondents are directed to refund an amount of Rs.61,200/- recovered from the petitioner to her within three months from today and in case the said amount is not refunded within the aforesaid period,

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the respondents shall pay interest @6% per annum on the

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said amount w.e.f. 01.12.2020, till actual payment.

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The petition is accordingly disposed of. However, there shall be no orders as to cost. Pending application(s), if

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any, shall also stand disposed of.

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8 th April, 2026 ( Jiya Lal Bhardwaj ) (ankit) Judge

Sukhwinder Kaur v. the State of Hp

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Sukhwinder Kaur v. the State of Hp

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