Allowed

Gopal Dutt Joshi v. State of Uttarakhand

Uttarakhand HC19 Oct 2022WPSS/2366/2019

Case brief

AI extract

What is this about?

This judgment held that the respondent corporation cannot recover excess payments made under the Assured Career Progression Scheme from retired daily wage Scalers, relying on Supreme Court precedent distinguishing recovery from low-level and retired employees.

What did the court decide?

Respondents restrained from recovering any excess amount; already recovered amounts must be refunded without unauthorized deductions.

SL. No	Date	Office Notes, reports, orders or proceedings or directions and Registrar’s order with Signatures	COURT’S OR JUDGES’S ORDERS
			WPSS No. 626 of 2020 with WPSS No. 2341 of 2019 WPSS No. 2342 of 2019 WPSS No. 2343 of 2019 WPSS No. 2344 of 2019 WPSS No. 2345 of 2019 WPSS No. 2347 of 2019 WPSS No. 2348 of 2019 WPSS No. 2349 of 2019 WPSS No. 2350 of 2019 WPSS No. 2352 of 2019 WPSS No. 2353 of 2019 WPSS No. 2354 of 2019 WPSS No. 2355 of 2019 WPSS No. 2356 of 2019 WPSS No. 2357 of 2019 WPSS No. 2361 of 2019 WPSS No. 2366 of 2019 WPSS No. 2367 of 2019 WPSS No. 1163 of 2020 Hon’ble Manoj Kumar Tiwari, J. Mr. Rakesh Thapliyal and Mr. M.C. Kandpal, Senior Advocate, assisted by Mr. Xitij Kaushik and Mr. Tarun Mohan, Advocate for the petitioners. Mr. P.C. Bisht and Mr. Pooran Singh Bisht, Additional Chief Standing Counsel for the State of Uttarakhand/ respondent nos. 1 & 2. Ms. Seema Sah, Advocate for respondent nos. 3 to 5. Since common questions of law and fact are involved in these writ petitions, therefore are being taken up together and are being decided by this common judgment. However, for the sake of brevity, facts of Writ Petition (S/S) No. 626 of 2020 alone are being considered. Writ Petition (S/S) No. 626 of 2020 has been filed by 27 persons, who were appointed as Scaler on daily wages in U.P. Forest Corporation before 1990. According to them, the

SL.
No

Date

Office Notes,
reports, orders or
proceedings or
directions and
Registrar’s order
with Signatures

COURT’S OR JUDGES’S ORDERS

WPSS No. 626 of 2020
with
WPSS No. 2341 of 2019
WPSS No. 2342 of 2019
WPSS No. 2343 of 2019
WPSS No. 2344 of 2019
WPSS No. 2345 of 2019
WPSS No. 2347 of 2019
WPSS No. 2348 of 2019
WPSS No. 2349 of 2019
WPSS No. 2350 of 2019
WPSS No. 2352 of 2019
WPSS No. 2353 of 2019
WPSS No. 2354 of 2019
WPSS No. 2355 of 2019
WPSS No. 2356 of 2019
WPSS No. 2357 of 2019
WPSS No. 2361 of 2019
WPSS No. 2366 of 2019
WPSS No. 2367 of 2019
WPSS No. 1163 of 2020
Hon’ble Manoj Kumar Tiwari, J.
Mr. Rakesh Thapliyal and Mr. M.C. Kandpal, Senior
Advocate, assisted by Mr. Xitij Kaushik and Mr. Tarun
Mohan, Advocate for the petitioners.
Mr. P.C. Bisht and Mr. Pooran Singh Bisht, Additional
Chief Standing Counsel for the State of Uttarakhand/
respondent nos. 1 & 2.
Ms. Seema Sah, Advocate for respondent nos. 3 to 5.
Since common questions of law and fact are involved
in these writ petitions, therefore are being taken up together
and are being decided by this common judgment. However,
for the sake of brevity, facts of Writ Petition (S/S) No. 626 of
2020 alone are being considered.
Writ Petition (S/S) No. 626 of 2020 has been filed by
27 persons, who were appointed as Scaler on daily wages in
U.P. Forest Corporation before 1990. According to them, the

association of daily wage employees of erstwhile U.P. Forest Corporation filed Writ Petition No. 4209 of 1988 claiming
salary and other benefits, including leave encashment, gratuity and provident fund as were being paid to regularly appointed Scalers in the Corporation. The said writ petition was decided by Single Judge of
Hon’ble Allahabad High Court vide judgment dated
19.09.1991. Operative portion of the said judgment is
reproduced below:- “In view of what has been indicated hereinabove the writ petition succeeds and is allowed. A Writ in the nature of mandamus is issued commanding the opposite parties to pay the Scalers and other Category-D employees including orderly, chawkidar, daia, peon and fireman employed on daily wages in the establishment, Group Insurance, gratuity, Employees provident fund etc. which are admissible to such workman employees employed on regular basis. A writ in the nature of mandamus is also issued commanding the opposite parties to fill up the sanctioned 755 posts of temporary scalers within a period of three months from amongst the scalers engaged on daily wage basis and also fill up 361 posts of Group-D category within the aforesaid period from the date of sanction accorded by the State Government from amongst this workmen/employees working on Group-D category posts on daily wage basis. Opposite parties are further commanded to prepare a scheme for absorbing the daily wagers working on the posts of Scalers and other Group-D category posts engaged on daily wage basis into the regular services of the Corporation. It is further directed that till the daily wagers are not absorbed no appointment on the posts of Scalers and other Group- D category posts engaged on daily wage basis into the regular services of the Corporation. It is further directed that till the daily wagers are not absorbed no appointment on the posts of Scalers or other Group-D category posts will be made on regular basis.
After State Reorganisation, Government of
Uttarakhand established ‘Uttarakhand Forest Development
Corporation’ by invoking powers under U.P. Forest
Corporation Act, 1976, as applicable in Uttarakhand.
Subsequently, in the year 2002, Government of Uttarakhand
created supernumerary posts of Scaler and service of
petitioners were regularized against those posts by means of order dated 23.12.2002.

association of daily wage employees of erstwhile U.P. Forest
Corporation filed Writ Petition No. 4209 of 1988 claiming

salary and other benefits, including leave encashment,
gratuity and provident fund as were being paid to regularly
appointed Scalers in the Corporation.
The said writ petition was decided by Single Judge of

Hon’ble Allahabad High Court vide judgment dated

19.09.1991. Operative portion of the said judgment is

reproduced below:-
“In view of what has been indicated hereinabove the writ
petition succeeds and is allowed. A Writ in the nature of
mandamus is issued commanding the opposite parties to pay the
Scalers and other Category-D employees including orderly,
chawkidar, daia, peon and fireman employed on daily wages in the
establishment, Group Insurance, gratuity, Employees provident
fund etc. which are admissible to such workman employees
employed on regular basis. A writ in the nature of mandamus is
also issued commanding the opposite parties to fill up the
sanctioned 755 posts of temporary scalers within a period of three
months from amongst the scalers engaged on daily wage basis and
also fill up 361 posts of Group-D category within the aforesaid
period from the date of sanction accorded by the State Government
from amongst this workmen/employees working on Group-D
category posts on daily wage basis. Opposite parties are further
commanded to prepare a scheme for absorbing the daily wagers
working on the posts of Scalers and other Group-D category posts
engaged on daily wage basis into the regular services of the
Corporation. It is further directed that till the daily wagers are not
absorbed no appointment on the posts of Scalers and other Group-
D category posts engaged on daily wage basis into the regular
services of the Corporation. It is further directed that till the daily
wagers are not absorbed no appointment on the posts of Scalers or
other Group-D category posts will be made on regular basis.

After
State
Reorganisation,
Government
of

Uttarakhand established ‘Uttarakhand Forest Development

Corporation’ by invoking powers under U.P. Forest

Corporation Act, 1976, as applicable in Uttarakhand.

Subsequently, in the year 2002, Government of Uttarakhand

created supernumerary posts of Scaler and service of

petitioners were regularized against those posts by means of
order dated 23.12.2002.

It is contended by petitioners that in terms of judgment dated 19.09.1991 passed in Writ Petition No. 4209 of 1988, pay and allowances of the petitioners were re-fixed and they were given all benefits w.e.f. 19.09.1991, pursuant to the
judgment rendered in the said petition. This according to petitioners was done by the Corporation in terms of the order passed by Managing Director, on 15.07.2010. Subsequently, State Government raised objection
against grant of benefit of Assured Career Progression
Scheme (hereinafter referred to as ‘ACP’) to the petitioners
w.e.f. 19.09.1991 by holding that since petitioners were regularised in service only on 23.12.2002, therefore, services rendered by them after their regularisation alone can be considered for grant of ACP. The said objection was raised
by State Government, in view of the objection raised by
Special Audit Team of the State Government. Subsequently
on 20.09.2019, the Regional Manager, Kumaon Region,
Haldwani passed an order against the petitioner. Thus, feeling aggrieved, petitioners have approached
this Court. Learned counsels for the petitioners contend that
petitioners served and retired from the post of Scaler, which
is a Group-D post in Uttarakhand Forest Development
Corporation, therefore, in view of the law laid down by
Hon’ble Supreme Court in the case of State of Punjab & others Vs. Rafiq Masih (White Washer), reported in (2015) 4
SCC 334, recovery of money from them would be
impermissible. The legal position regarding recovery of
excess amount paid to the employees has been summarised in paragraph no. 18 of the said judgment, which is reproduced below:-

It is contended by petitioners that in terms of judgment
dated 19.09.1991 passed in Writ Petition No. 4209 of 1988,
pay and allowances of the petitioners were re-fixed and they
were given all benefits w.e.f. 19.09.1991, pursuant to the

judgment rendered in the said petition. This according to
petitioners was done by the Corporation in terms of the order
passed by Managing Director, on 15.07.2010.
Subsequently, State Government raised objection

against grant of benefit of Assured Career Progression

Scheme (hereinafter referred to as ‘ACP’) to the petitioners

w.e.f. 19.09.1991 by holding that since petitioners were
regularised in service only on 23.12.2002, therefore, services
rendered by them after their regularisation alone can be
considered for grant of ACP. The said objection was raised

by State Government, in view of the objection raised by

Special Audit Team of the State Government. Subsequently

on 20.09.2019, the Regional Manager, Kumaon Region,

Haldwani passed an order against the petitioner.
Thus, feeling aggrieved, petitioners have approached

this Court.
Learned counsels for the petitioners contend that

petitioners served and retired from the post of Scaler, which

is a Group-D post in Uttarakhand Forest Development

Corporation, therefore, in view of the law laid down by

Hon’ble Supreme Court in the case of State of Punjab &
others Vs. Rafiq Masih (White Washer), reported in (2015) 4

SCC 334, recovery of money from them would be

impermissible. The legal position regarding recovery of

excess amount paid to the employees has been summarised in
paragraph no. 18 of the said judgment, which is reproduced
below:-

“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: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (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. (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. (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.” This view was reiterated by Hon’ble Supreme Court in
the judgment rendered in Civil Appeal No. 7115 of 2010 “Thomas Daniel v. State of Kerala and others”. Paragraph no. 13 of the said judgment is reproduced below:- “(13) In State of Punjab and Others v. Rafiq Masih (White Washer) and Others4 wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and 4 (2015) 4 SCC 334 disallowed the same, exempting the beneficiary employees from such recovery. It was held thus: “8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee’s right would outbalance, and therefore eclipse, the right of the employer to recover.

**“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:
(i) Recovery from the employees belonging to Class III and Class
IV service (or Group C and Group D service).
(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.
(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.
(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.”
This view was reiterated by Hon’ble Supreme Court in

the judgment rendered in Civil Appeal No. 7115 of 2010
“Thomas Daniel v. State of Kerala and others”. Paragraph
no. 13 of the said judgment is reproduced below:-
“(13) In State of Punjab and Others v. Rafiq Masih (White Washer)
and Others4 wherein this court examined the validity of an order passed by
the State to recover the monetary gains wrongly extended to the beneficiary
employees in excess of their entitlements without any fault or
misrepresentation at the behest of the recipient. This Court considered
situations of hardship caused to an employee, if recovery is directed to
reimburse the employer and 4 (2015) 4 SCC 334 disallowed the same,
exempting the beneficiary employees from such recovery. It was held thus:
“8. As between two parties, if a determination is rendered in favour of the
party, which is the weaker of the two, without any serious detriment to the
other (which is truly a welfare State), the issue resolved would be in
consonance with the concept of justice, which is assured to the citizens of
India, even in the Preamble of the Constitution of India. The right to
recover being pursued by the employer, will have to be compared, with the
effect of the recovery on the employee concerned. If the effect of the
recovery from the employee concerned would be, more unfair, more
wrongful, more improper, and more unwarranted, than the corresponding
right of the employer to recover the amount, then it would be iniquitous and
arbitrary, to effect the recovery. In such a situation, the employee’s right
would outbalance, and therefore eclipse, the right of the employer to
recover.

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:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(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.
(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.
(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.” Learned counsels for the petitioners point out that most
of the petitioners retired from service prior to passing of the
impugned order. It is further contended by them that some
petitioners retired in 2019 or in 2020, however, all the
petitioners retired upto 2020. It is not in dispute that decision to grant benefit of ACP
was taken by the Competent Authority in Uttarakhand Forest
Development Corporation. It is contended on behalf of the
petitioners that the said decision was taken in view of the
judgment rendered by Hon’ble Allahabad High Court in Writ
Petition No. 4209 of 1988, however, this contention is
disputed by learned counsel for the respondents and they
submit that there was no such direction in the said judgment
to grant benefit available to regular employees to daily wage employees, w.e.f. 1991.
However, the fact remains that petitioners neither
played fraud nor misrepresented any fact for getting benefit

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:

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

(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.

(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.

(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.”
Learned counsels for the petitioners point out that most

of the petitioners retired from service prior to passing of the

impugned order. It is further contended by them that some

petitioners retired in 2019 or in 2020, however, all the

petitioners retired upto 2020.
It is not in dispute that decision to grant benefit of ACP

was taken by the Competent Authority in Uttarakhand Forest

Development Corporation. It is contended on behalf of the

petitioners that the said decision was taken in view of the

judgment rendered by Hon’ble Allahabad High Court in Writ

Petition No. 4209 of 1988, however, this contention is

disputed by learned counsel for the respondents and they

submit that there was no such direction in the said judgment

to grant benefit available to regular employees to daily wage
employees, w.e.f. 1991.

However, the fact remains that petitioners neither

played fraud nor misrepresented any fact for getting benefit

of ACP. The benefit of AC year 2010 and the decision	P w to	as granted to petitioners in the recover excess payment was
taken in 2019, and the	reco	very order was passed on
20.10.2019. In view of the law Court in the case of State of (White Washer), reported	laid Pun in	down by Hon’ble Supreme jab & others Vs. Rafiq Masih (2015) 4 SCC 334 and in
Thomas Daniel v. State of no hesitation in holding that petitioners cannot be recov retirement. Without going into o	Ker the ered ther	ala and others, this Court has excess amount, if any, paid to at this late stage, after their issues raised by petitioners in
these writ petitions, writ	pe	titions are disposed of by
restraining the respondents the petitioners pursuant	from to	recovering any amount from the impugned order dated
05.02.2019. However, it is will be under no liability	ma to	de clear that the respondents refund the amount, already
recovered from petitione	rs,	pursuant to the impugned
recovery order. Respondent shall rele without making any unau months. Navin	ase tho	the retiral dues of petitioners, rised deductions, within six (Manoj Kumar Tiwari, J.) 19.10.2022

of ACP. The benefit of AC
year 2010 and the decision

P w
to

as granted to petitioners in the
recover excess payment was

taken in 2019, and the

reco

very order was passed on

20.10.2019.
In view of the law
Court in the case of State of
(White Washer), reported

laid
Pun
in

down by Hon’ble Supreme
jab & others Vs. Rafiq Masih
(2015) 4 SCC 334 and in

Thomas Daniel v. State of
no hesitation in holding that
petitioners cannot be recov
retirement.
Without going into o

Ker
the
ered
ther

ala and others, this Court has
excess amount, if any, paid to
at this late stage, after their
issues raised by petitioners in

these writ petitions, writ

titions are disposed of by

restraining the respondents
the petitioners pursuant

from
to

recovering any amount from
the impugned order dated

05.02.2019. However, it is
will be under no liability

ma
to

de clear that the respondents
refund the amount, already

recovered from petitione

rs,

pursuant to the impugned

recovery order.
Respondent shall rele
without making any unau
months.

Navin

ase
tho

the retiral dues of petitioners,
rised deductions, within six
(Manoj Kumar Tiwari, J.)
19.10.2022

Gopal Dutt Joshi v. State of Uttarakhand

Case brief

What is this about?

What did the court decide?

Gopal Dutt Joshi v. State of Uttarakhand

Case brief

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