Himachal Pradesh High Court
_______________________________________________________ vs State Of Himachal Pradesh & Another on 14 May, 2025
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 5343 of 2023 Date of Decision: 14.05.2025 _______________________________________________________ Mohammad Shan .......Petitioner Versus State of Himachal Pradesh & another ... Respondents ______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1Yes.
For the Petitioner: Mr. P.P.Chauhan, Advocate. For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals and Mr. Ravi Chauhan, Deputy Advocate General.
_______________________________________________________ Sandeep Sharma, Judge(oral):
By way of instant petition, petitioner has prayed for following main reliefs:-
"(a) To issue a writ of certiorari or direction in nature thereof, quashing the orders dated 06.02.2023, 03.05.2023 and 04.07.2023 being Annexures P-4, P-6 and P-7 of the writ petition, as unconstitutional and illegal and contrary to the law;
(b) To issue a writ of mandamus, appropriate writ order or direction in nature thereof, directing the respondent department to reimburse remaining amount with all consequential benefits for all purposes and intents."
2. Relevant facts, as emerge from the pleadings adduced on record by the respective parties to the lis, are that son of the 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 petitioner, who was born on 22.05.2019, was found to be suffering with hearing problem and as such, on 28.09.2021, petitioner, who is working as Senior Assistant in the Health Department, took him to PGI, Chandigarh for checkup. On 10.05.2022, Doctors attending upon the son of the petitioner at PGI, Chandigarh, recommended for Cochlear implantation. On 11.05.2022, Medical Board of PGI, Chandigarh gave estimate certificate for Cochlear implantation (Annexure P-1). Vide aforesaid estimate, petitioner herein came to be apprised that approximate expenditure involved in surgical procedure/ treatment of his son is Rs. 16, 27,500/-( Rs. 16,27,500/- for Cochlear Nucleus Kanso-2(LP1150) with profile plus electrode array and Rs. 50,000/- for hospital charges and medicines). After receipt of aforesaid estimate from PGI, Chandigarh, petitioner made representation to the Chief Medical Officer, District Sirmour at Nahan for sanction of estimated amount of Rs. 16, 77,500/- as advance for treatment on sympathetic grounds. Chief Medical Officer, Sirmour at Nahan vide communication dated 26.05.2022 forwarded the representation filed by the petitioner to Director Health Services, Himachal Pradesh (Annexures P-2 colly). After receipt of sanction from the Office of Director Health Services, Himachal Pradesh, Chief Medical Officer, Sirmour at Nahan vide communication dated 30.06.2022(Annexure P-3) deposited sum of Rs. 12,20,625/- in the account of PGIMR, Chandigarh towards the partial cost of the treatment. On 02.07.2022, petitioner also deposited remaining sum of 3 Rs. 4, 06, 875/- in PGI, Chandigarh to avoid further delay in Cochlear implant of his son. On 26.12.2022, petitioner submitted his aforesaid bill for reimbursement to the Department, but no payment was made. Subsequently, vide communication dated 06.02.2023 Director Health Services, Himachal Pradesh, directed Chief Medical Officer, Sirmour at Nahan to restrict the rate(s) as per CGHS rates as per Government Notification. It also came to be ordered vide aforesaid communication that over and above payment be deposited in the Government Treasury through e-challan. Vide communication dated 9.3.2023 (Annexure P-5), petitioner made a representation to Director, Heath and Family Welfare Department, Himachal Pradesh, stating therein that he is not in a position to deposit the amount and as such, case of the petitioner may be taken up with the Government sympathetically for special sanction keeping in view the poor financial condition. However, vide communication dated 3.5.2023 (Annexure P-6), Director Health Services, Himachal Pradesh informed Chief Medical Officer Sirmour at Nahan that Government has notified a policy vide notification No. HFW-B(F)1-1/2008 dated 21.06.2008. Point 9.8 of the said policy reads as under:-
" In case there is no PGIMER Chandigarh/AIIMS Rate the reimbursement shall be restricted to the CGHS rates or actual whichever is lower."
3. Vide aforesaid communication, Chief Medical Officer further came to be advised to re-examine the matter as per provisions of the policy of the State Government. Having taken note of aforesaid 4 direction issued by Director Health Services, Himachal Pradesh, Chief Medical Officer Sirmour at Nahan issued notice dated 4.7.2023 (Annexure P-7), thereby calling upon petitioner to deposit the recoverable amount of Rs. 6,53,929/- (after adjusting medical reimbursement claim bill as per government norms in the Government Treasury within fifteen days). It also came to be apprised to the petitioner through aforesaid communication that in case he fails to deposit the amount within fifteen days, amount shall be recovered from his salary in equal installments. In the afore background, petitioner has approached this Court in the instant proceedings, praying therein for the reliefs, as have been reproduced hereinabove.
4. Precisely, the grouse of the petitioner as has been highlighted in the petition and further canvassed by Mr. P.P.Chauhan, learned counsel for the petitioner, is that since at no point of time amount, sought to be recovered, was sanctioned on misrepresentation of the petitioner, rather same was deposited directly in PGI, Chandigarh after due approval of the competent authority, recovery notice, sought to be quashed in the instant proceedings, is not sustainable in the eye of law. While making this Court peruse documents adduced on record alongwith the petition, learned counsel for the petitioner vehemently argued that petitioner herein after discovering of hearing problem of his son, took him to PGI, Chandigarh for treatment, but since estimate given by afore hospital was beyond his reach, he by way of representation requested 5 the Department to provide him some advance. Learned counsel for the petitioner submitted that competent authority having perused Rules in vogue as well as past practice prevalent in the Department, deposited sum of Rs. 12,20,625/- in the account of PGI, Chandigarh towards partial cost of the treatment and thereafter, petitioner with a view to avoid further delay himself deposited sum of Rs. 4,06,875/-. He submitted that since it stands duly proved on record that with the aforesaid money surgery of the son of the petitioner was conducted and at no point of time, petitioner received any amount in his account or in cash, coupled with the fact that aforesaid amount was sanctioned by the competent authority, amount, if any, paid over and above permissible limit cannot be permitted to be recovered from the petitioner, who is a Class-III employee. While placing reliance upon judgment passed by Hon'ble Apex Court in State of Punjab and others vs. Rafiq Masih (2015) 4 SCC 334, learned counsel for the petitioner submitted that recovery, if any, from Class-III and Class-IV employee is totally impermissible in law, especially when there is nothing to suggest that amount, sought to be recovered, was received by an employee concerned through misrepresentation. He also invited attention of this Court to the judgment passed by Division Bench of this Court in S.S.Chaudhary vs. State of Himachal Pradesh and others, decided on 24.3.2022, wherein Division Bench of this Court having taken note of various judgments rendered from time to time, 6 including Rafiq Masih (supra) laid down certain parameters, whereby recovery by an employer would be impermissible from the employees.
5. To the contrary, Mr. Anup Rattan, learned Advocate General, while refuting the submissions made by learned counsel for the petitioner, vehemently argued that petitioner, who is an employee of Health Department, cannot be permitted to claim that he was not aware to Rules in vogue framed by the Government of Himachal Pradesh for reimbursement. While referring to the reply filed by the respondent Nos. 1 to 3 on the affidavit of Director Health Services, Himachal Pradesh, learned Advocate General stated that State Government vide Notification dated 25.09.2020 and Office Memorandum dated 12.06.2009 (Annexures R-1 & R-II) has laid down definite procedure for reimbursement of cochlear implant surgery to Government employees/pensioners with further specific mention that the Director Medical Education and Research, Himachal Pradesh shall issue approval for reimbursement of the charges of the cochlear implant surgery, subject to the capping prescribed as per CGHS Rules. He submitted that since as per CGHS Rules, no amount more than Rs. 5, 35,000/- could have been sanctioned for Cochlear implant, impugned action of the respondents inasmuch as ordering recovery of excess amount paid over and above aforesaid prescribed limit is wholly justifiable. While refuting submissions made by learned counsel for the petitioner with regard to application of judgment passed by Hon'ble Apex Court in Rafiq Masih case (supra), 7 learned Advocate General inviting attention of this Court to the judgment passed by Hon'ble Apex Court in Chandi Prasad Uniyal & others vs. State of Uttarakhand, Civil Appeal No.5899 of 2012, decided on 17.08.2012, to state that any amount received/paid without authority of law, can be recovered, barring few exceptions of extreme hardships, but not as a matter of right. He submitted that since in the case at hand, it stands established that petitioner was not entitled to the amount, which he erroneously received on account of inadvertent sanction issued by the competent authority i.e. Director Health Services, Himachal Pradesh, he is liable to refund the amount. He further submitted that by no stretch of imagination case of the petitioner falls in the category of extreme hardship. He submitted that petitioner being Senior Assistant working in the Health Department is in receipt of handsome salary. He submitted that impugned recovery notice itself suggests that amount, sought to be recovered, if not already deposited within a period of fifteen days, shall be recovered from the salary of the petitioner by way of installments. He submitted that in case amount is permitted to be recovered by way of installments from the salary of the petitioner, who is otherwise left with 10 years' service, no prejudice can be said to have been caused to the petitioner. He submitted that once it is ample clear from the pleadings as well as other material adduced on record that petitioner being employee of Health Department succeeded in getting undue favour from the higher-ups working at the relevant time, coupled with 8 the fact that no amount over and above Rs. 5,35,000/- could have been sanctioned, prayer made on behalf of the petitioner to waive off the amount allegedly received over and above prescribed limit cannot be accepted, rather such order, if any, may set bad precedent.
6. At this juncture, Mr. P.P.Chauhan, learned counsel for the petitioner, while fairly admitting that no amount over and above prescribed limit of Rs. 5,35,000/- could have been sanctioned, stated that though in view of peculiar facts and circumstances of the case, no amount, if any, can be recovered from the salary of the petitioner, but if yes, then such amount deserves to be recovered from the salaries of all erring officials, who despite their having knowledge of Rules in vogue, proceeded to sanction the amount over and above prescribed limit.
7. I have heard learned counsel for the parties and gone through the record carefully.
8. Before ascertaining correctness of the rival submissions made by learned counsel for the parties, this Court for completion of facts finds it necessary to take note of the fact that this Court having taken note of pleadings as well as submissions made by learned counsel for the parties, passed order dated 23.05.2023, which reads as under:-
"The respondents in their short reply have, inter alia, stated as under:-
'8. That it is submitted that accordingly, the matter was re- examined by the Respondent No.3 as per the directions and 9 however, since there were no rate of cochlear implant Kanso 2 Unilateral system available on the official website of the PGIMER, Chandigarh, and AIIMS Delhi, the reimbursement was decided to be restricted to the CGHS rates with further direction to the petitioner to deposit the recovery of excess amount of Rs.6,53,929/- back into the Government Treasury by the Respondent No.3 vide Notice dated 04.07.2023, Annexure P-7 in the matter, strictly in view of the instructions issued by the Central Government as well as the State Government in the matter.' Let learned counsel for both the sides to have instructions about the rate of cochlear implant Kanso 2 Unilateral system in PGIMER, Chandigarh, and AIIMS Delhi.
List on 03.07.2024."
9. Pursuant to aforesaid order, Dr. Anita Mahajan, retired Director Health Services, Himachal Pradesh and Dr. Sunil Kumar, retired Chief Medical Officer, Sirmour at Nahan, Himachal Pradesh came present before this Court and sought permission to file their affidavits. Today, during the proceedings of the case, they have filed their affidavits, which are taken on record. If the affidavits filed by the afore Officers, who admittedly were in the helm of affairs at that relevant time, are read in conjunction, it clearly suggest that though no amount over and above Rs. 5, 35,000/- could have been sanctioned, but yet afore authorities taking note of proposal received from their respective offices, proceeded to sanction the amount over and above prescribed limit. At first instance, Dr. Sunil Kumar Gautam, the then Chief Medical Officer Sirmour at Nahan, recommended the case of the petitioner to Director Health Services, Himachal Pradesh, who merely on the basis of proposal submitted by authority below, 10 sanctioned the amount. Moreover 75% of the advance amount Rs. 12, 20,625/- was released online through e-viteran on 03.06.2022 to the Chief Medical Officer, Sirmour at Nahan with the remarks that the advance so released is subject to the specific terms and conditions including the sanction is to be issued/accorded by the Head Office, the advance may be adjusted immediately or within three months from the sanction issued in the same financial year. Director Health Services, Himachal Pradesh, while sanctioning 75% advance amount further apprised the then Chief Medical Officer that other terms and conditions shall apply as per Medical Attendance Rules 1944, during the financial year 2022-2203. On the basis of aforesaid sanction given by the Director Health Services, Himachal Pradesh, the then Chief Medical Officer directly released the amount in favour of the Director PGIMER, Chandigarh. Both the authorities have stated that office memorandum dated 12.06.2009 of the Government of India, thereby providing the ceiling rate of Cochlear implant of Rs. 5, 35,000/- for reimbursement was not in their knowledge, while approving the advance as no such notification was ever put up with the proposal for advance or brought on record by any of the officer through whom the file was routed. While rendering aforesaid explanation, both the Officers, detailed hereinabove, have also tendered their unconditional apology for their inadvertent mistake.
11
10. Admittedly, no amount over and above Rs. 5, 35,000/- could have been sanctioned in favour of the petitioner for Cochlear implant of his son, but as has been taken note hereinabove, the then Chief Medical Officer Sirmour at Nahan taking note of representation dated 26.05.2022 (Annexure P-2 colly), recommended his case to Director Health Services, Himachal Pradesh vide communication dated 26.5.2022, who further taking note of urgency in the matter sanctioned the amount and authorized Chief Medical Officer, Sirmour to deposit such amount with PGI, Chandigarh, which ultimately came to be deposited through e-viteran. Since, there is no dispute interse parties that no amount over and above Rs. 5, 35,000/- could have been sanctioned, there appears to be no justification for this Court to take note of Rules occupying the field, however for clarification, it may be noticed that Government of India, Ministry of Health & Family Welfare vide its office memorandum dated 12.06.2009, issued guidelines regarding reimbursement of the cost of Cochlear implant to the beneficiaries under CGHS/Central Services ( Medical Attendance) Rule 1944, thereby it came to be conveyed to permit the beneficiaries under CGHS and Central Services ( Medical Attendance) Rule 1944 to undergo Cochlear Implant surgery as per the guidelines laid down in the matter. Importantly, in afore above guidelines ceiling rate for cochlear implant has been specified as Rs. 5, 35,000/- for reimbursement of cost of cochlear implant with 12 channel/24 electrode with behind the ear speech processor 12 (Annexure R-1). State Government vide notification dated 25.09.2020 also laid down the procedure for reimbursement of cochlear implant surgery to Government employees/pensioners with further specific mention that the Director Medical Education and Research, Himachal Pradesh shall issue approval for reimbursement of the charges of the cochlear implant surgery, subject to the capping prescribed as per CGHS Rules (Annexure R-2).
11. Initially as per proposal received from respondent No.3 (Annexure P-2) on the basis of representation of the petitioner alongwith treatment estimate certificate amounting to Rs. 16, 77,500/- (Annexure P-1) on account of treatment of his son on sympathetic grounds, 75% budget of the estimated cost stood provided as advance in favour of the petitioner by Director Health Services for treatment of his son vide letter dated 4.6.2022(Annexure R-3). Since subsequent to sanction of aforesaid amount, petitioner herein, who had deposited remaining sum of Rs.4,06,875/- on 2.7.2022, submitted bills for reimbursement, matter again came to be discussed by successor of the then Chief Medical Officer, who found that no amount over and above Rs. 5, 35,000/- otherwise could have been sanctioned in total for cochlear implant. Bill for medical reimbursement submitted by the petitioner amounting to Rs.16, 77,500/- to respondent No.3 came to be examined in the office of Director Health Services, Himachal Pradesh in light of instructions issued by Government of India regarding ceiling of CGHS rates for 13 cochlear implant, whereafter it was conveyed to restrict the rates as pre CGHS rates in view of notification dated 6.02.2023 (Annexure P-4). Copy of policy dated 21.06.2008 framed for granting recognition/empanelment to private hospitals/health institutions/ diagnostic labs within and outside the State both in private and Government sectors for treatment and reimbursement of the expenses to the government employees/their dependents and pensioners as per Annexure R-5, clearly reveals that in case there is no PGIMER Chandigarh/AIIMS rates, the reimbursement shall be subject to CGHS rates or actual rates whichever is lower. Since there were no rates for cochlear implants Kanso-2 Unilateral system available on the officials website of PGI, Chandigarh and AIIMS Delhi, the reimbursement were decided to be restricted to the CGHS rate with further direction to the petitioner to deposit the excess amount of Rs. 6,53,929/- in the Government Treasury vide notice dated 04.07.2023 (Annexure P-7).
12. If the judgment passed by Hon'ble Apex Court in Rafiq Masih case, is perused in its entirety, it nowhere suggests that in the given facts and circumstances of the case, no recovery can be effected. At this stage, it would be apt to take note of following paras of aforesaid judgment herein below:-
"10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is 14 not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.
11. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters.
12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475, wherein this Court recorded the following observation in paragraph 58:
"58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, Union of India v. M. Bhaskar, (1996) 4 SCC 416, V. Ganga Ram v. Director, (1997) 6 SCC 139, Col. B.J. Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709, Purshottam Lal Das v. State of Bihar, (2006) 11 SCC 492, Punjab National Bank v. Manjeet Singh, (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur, (2000) 10 SCC 99."(emphasis is ours)
13. First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the 15 subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee.
14. In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India (1994) 2 SCC 521, wherein this Court observed as under:
"11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess 16 amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same."(emphasis is ours) It is apparent, that in Shyam Babu Verma's case (supra), the higher pay- scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay-scale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India.
15. Examining a similar proposition, this Court in Col. B.J. Akkara v. Government of India, (2006) 11 SCC 709, observed as under:
"28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery."(emphasis is ours) A perusal of the aforesaid observations made by this Court in Col. B.J. Akkara's case (supra) reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such 17 recovery from employees belonging to the lower rungs (i.e., Class-III and Class-IV - sometimes denoted as Group 'C' and Group 'D') of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India.
16. This Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows:
"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter- affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." (emphasis is ours) Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery 18 would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation.
17. Last of all, reference may be made to the decision in Sahib Ram Verma v. Union of India, (1995) Supp. 1 SCC 18, wherein it was concluded as under:
"4. Mr. Prem Malhotra, learned counsel for the appellant, contended that the previous scale of Rs 220-550 to which the appellant was entitled became Rs 700-1600 since the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any force in this contention. It is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges to Rs 700-1600 but they insisted upon the minimum educational qualification of first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science. The relaxation given was only as regards obtaining first or second class in the prescribed educational qualification but not relaxation in the educational qualification itself.
5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." (emphasis is ours) It would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs.700-1600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed minimum educational qualification (first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science, the degree of M.Lib. Science being a preferential qualification). For those Librarians appointed prior to 3.12.1972, the educational qualifications were relaxed. In Sahib Ram Verma's case (supra), a mistake was committed by wrongly extending to the appellants the revised pay scale, by relaxing the prescribed educational qualifications, even though the concerned appellants were ineligible for the same. The concerned appellants were held not eligible 19 for the higher scale, by applying the principle of "equal pay for equal work". This Court, in the above circumstances, did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post.
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, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(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.
(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.
18. Careful perusal of aforesaid judgment clearly reveals that the judgment detailed herein above, came to be passed af- ter passing of judgment dated 8.7.2013 by a three Judge Bench of Hon'ble Apex Court, wherein three judge bench, having taken note of divergent views/findings given by other Benches of Hon'ble Apex Court, in Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, Sahib Ram v. State of Haryana, 1995 Supp(1) SCC 18 and Chandi Prasad Uniyal & Ors. v. State of Uttarakhand, Civil Appeal No. 5899 of 2012, decided on 17.8.2012 , ... SCC 417, held that the ob- servations made by this court in Rafiq Masih supra, not to recover excess amount paid to appellants in exercise of ex- traordinary jurisdiction under Art. 142 of the Constitution of India, which vests power in this court to pass equitable or- ders in the ends of justice."
19. After answering aforesaid reference by three Judge Bench subsequent judgment dated 18.12.2014, in Rafiq Masih 20 came to be passed, wherein Hon'ble Apex Court having tak- en note of all the aforesaid judgments including answer giv- en by three Judge Bench summarized certain situations, wherein recovery by employer would be impermissible in law, which have been already reproduced above.
20. No doubt, in Chandi Prasad Uniyal supra, on which heavy reliance was placed by learned Advocate General, held as under:
"14. We may point out that in Syed Abdul Qadir case such a direction was given keeping in view of the peculiar facts and circumstances of that case since the beneficiaries had either retired or were on the verge of retirement and so as to avoid any hardship to them.
15. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.
21. In the aforesaid judgment, Hon'ble Apex Court categorically held that court is concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the reci- pients. Hon'ble Apex Court expressed their concern as to why the concept of fraud or misrepresentation as being brought in such situa- tions. In nutshell in the aforesaid judgment, Hon'ble Apex Court held that in many situations without any authority of law, payments have been received by the recipients. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
22. True it is that in terms of aforesaid judgment passed by Hon'ble Apex Court, any amount paid/received without authority of 21 law can always be recovered but not in all situations rather in cases of extreme hardships, employer can be restrained from effecting re- covery.
23. Having taken note of Chandi Prasad Uniyal supra, Hon'ble Apex Court in its subsequent judgment dated 18.12.2014, passed in Rafiq Masih supra, detailed certain situations, wherein recovery would be impermissible in law. Having perused aforesaid situations detailed in para-18 of Rafiq Masih supra, this court is persuaded to agree with learned counsel for the petitioners that after passing judg- ment in Chandi Prasad Uniyal supra, Hon'ble Apex Court, culled out certain principles to determine extreme hardships and thereafter ca- tegorically formulated certain situations, wherein recoveries cannot be effected at all.
27. Division Bench of this court, in S.S. Chaudhary supra, having taken note of various judgments passed by Hon'ble Apex Court including in Rafiq Masih, laid down certain situations, recovery would be impermissible from the employees. It would be apt to take note of following para of S.S. Chaudhary supra:
"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 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:-
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(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.
(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.
(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 22 overweigh the equitable balance of the employer's right to recover.
(vii) Recovery from the employees belonging to Class-III and Class-IV even on the basis of undertaking is impermissible.
(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."
13. If the judgments taken note of are read in conjunction, it suggest that recovery from Class-III & IV employees cannot be effected, especially when amount, sought to be recovered, was not received by the employee concerned by misrepresentation or fraud, rather was result of misinterpretation of service Rules.
14. Though, in the case at hand, learned Advocate General vehemently argued that petitioner was fully aware of Rules occupying the field, but yet he taking advantage of his being employee of same Department succeeded in getting the amount sanctioned over and above prescribed limit as such, he cannot be permitted to claim that amount received by him over and above prescribed limit was not on his misrepresentation, but having taken note of reply filed by the respondents as well as affidavits filed by two retired Officers, named hereinabove, this Court is not inclined to accept the submission made by learned Advocate General.
15. Once Officers manning relevant posts at the relevant time have themselves submitted that they ended up sanctioning amount over and above prescribed limit on account of misinterpretation or Rules occupying the field as well as non-availability of notification, it 23 cannot be concluded that petitioner, who at relevant time was working in the Office Assistant Drug Controller, Nahan, connived with the Officials of Chief Medical Officer, Nahan. Petitioner being responsible father of a son, who was found to be suffering with hearing problem after having received proper advise from Doctors at PGI, Chandigarh submitted estimate to the Office of Chief Medical Officer, Nahan, who further taking note of urgency, recommended the case of the petitioner to the Director Health Services, Himachal Pradesh, who further on the basis of note or proposal made by lower officials, proceeded to sanction the amount over and above prescribed limit. Otherwise also, it is none of the case of the respondents that petitioner succeeded in receiving the amount over and above prescribed limit on account of misrepresentation of fraud, coupled with the fact that amount sanctioned over and above prescribed limit was straightway deposited with PGI, Chandigarh through E-viteran. It is also not in dispute that with the amount sanctioned by Health Department Cochlear implant of the son of the petitioner was done at PGI, Chandigarh. Having taken note of facts, as detailed hereinabove, it is difficult to conclude that there was any kind of misrepresentation on the part of the petitioner, if it is so amount otherwise sought to be recovered by way of notice dated 4.7.2023 (Annexure P-7) is wholly impermissible in light of law laid down by Hon'ble Apex Court in Rafiq Masih case (supra).
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16. True, it is that in Chandi Prasad case (supra), Hon'ble Apex Court held that nobody can be permitted to retain the amount received without any authority of law, but subsequently aforesaid judgment came to be interpreted/clarified by Hon'ble Apex Court in Rafiq Masih (supra), wherein Hon'ble Apex Court culled out certain principles to determine extreme hardships and thereafter categorically formulated certain situations, wherein recoveries cannot be effected at all. If judgment of Rafiq Masih (supra) is read in its entirely, it clearly provides that in no circumstances, recovery, if any, can be permissible from Class-III & IV employees.
17. Though, this is a classic case where petitioner came to be sanctioned amount over and above prescribed limit for treatment of his son, but for the reasons stated hereinabove, this Court is not persuaded to agree with learned Advocate General that amount received over and above prescribed limit was on account of misrepresentation of the petitioner, rather amount, if any, sectioned over and above prescribed limit was on account of carelessness of officers, who at relevant time proceeded to sanction the amount without bothering to look into the rules occupying the field.
18. Since, it is not in dispute that petitioner is a Class-III employee, factum with regard to his being serving as Senior Assistant in the Health Department may not be of much relevance, especially having taken note of the fact that petitioner for the treatment of his son deposited sum of Rs. 4,06,875/-from his pocket over and above 25 amount sanctioned by the Department. Had respondents informed petitioner at first instance that only sum of Rs.5,35,000/- can be sanctioned, probably he would either have gone for some other treatment or may not have opted for Cochlear implant, which admittedly he opted on the strength of approval given by the competent authority qua the estimate provided by the PGI, Chandigarh for the treatment of son of the petitioner.
19. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this court finds merit in the present petition and accordingly same is allowed and impugned order dated 04.07.2023 is quashed and set-aside. Pending applications4, if any, also stand disposed of.
(Sandeep Sharma), Judge May 14, 2025 (shankar)