UNION TERRITORY OF J AND K AND ORS. (JAL SHAKTI / PHE) vs MOHD YOUSIF JOO AND ORS.

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR



WP (C) No. 2094/2025


Reserved on: 20.04.2026
Pronounced on: 29.04.2026
Uploaded on: 29.04.2026
Whether the operative part or full
judgment is pronounced: FULL

1. Union Territory of J&K through
Commissioner/Secretary to Govt. Jal Shakti
(PHE) Department, Civil Sectt. J&K
Srinagar/Jammu.
Pin- 180001

2. Chief Engineer Jal Shakti (PHE)
Department, Srinagar Near Silk factory,
Rajbagh Srinagar
Pin-190008.

3. Superintending Engineer Hydraulic
Circle Kupwara H/Q Handwara, Near
Check post Braripora
Pin-193221.

4. Executive Engineer, Jal Shakti (PHE)
Department Special Sub-Division Tangdhar
Mini Secretariat, Tangdhar, Karnah.
Pin-193225.










…Petitioner(s)/Appellant(s)
Through: Mr. Jehangir Ahmad Dar, GA with
Ms Shaila Shameem, AC
Vs.

Mohd Yousuf Joo Age 58 years
S/o Lass Joo
R/o Tangdhar karnah, Kupwara
Pin 193225
and 58 other respondents


...Respondent(s)


Mr. M. A. Wani, Adv.
Through:
CORAM:
HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON’BLE MR. JUSTICE SANJAY PARIHAR, JUDGE

J U D G M E N T

Per Sanjeev Kumar: J
1. The Union Territory of Jammu and Kashmir along-with three others
seek to invoke the extraordinary writ jurisdiction vested in this court under

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Article 226 of the Constitution of India to throw challenge to an order and
judgment dated 23rd of April, 2025 passed by the Central Administrative
Tribunal, Srinagar Bench, Srinagar, [“the Tribunal”] in OA No. 1016/2021
titled Mohammad Yousuf Joo and Ors. vs. Union Territory of Jammu and
Kashmir and Ors. whereby, the Tribunal has allowed the OA filed by the
respondents herein and has directed the petitioners not to withdraw the
benefits of SRO 59 of 1990 or make recoveries.
2. Before we advert to the grounds of challenge urged by Mr. Jehangir
Dar, learned GA appearing for the appellants, we deem it appropriate to
narrate few facts as are relevant to the disposal of this petition.
3. The respondents are the employees of Public Health Engineering,
[“PHE Department”] of the Union Territory of Jammu and Kashmir working
as Assistant Lineman. Some of the respondents have retired, whereas others
are still in service. Vide SRO 59 of 1990 issued by the Government, it was
decided to rationalize pay scales of various posts in the PHE Department,
including those held by the respondents. This SRO was not given effect to
for pretty long time.
4. It was in the year 2016, the Chief Engineer, Jal Shakti, PHE
Department, vide order No. PHE/Estt-16854-55 dated 21st of November,
2016 directed the subordinate officers to implement SRO 59 of 1990 and
give the benefit of higher pay scales to the eligible employees, including the
respondents herein.
5. Acting upon the instructions of the Chief Engineer, the subordinate
offices issued orders on 21st of September, 2017 and 25th of September,
2017 extending the benefit of SRO 59 of 1990 retrospectively to the
respondents with effect from 01.04.1994. Later on, as it appears, the matter

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came to the notice of Director Finance, PHE, (I&FC Department) in the year
2019, who vide its communication No. PW/Hyd/Acctts/Up-grade/41/2018
dated 29th of January, 2019 found the benefit of SRO 59 erroneously
extended to the respondents, that too, by the incompetent authority and
accordingly, directed the recovery of benefits granted to the respondents.
This withdrawal of benefit of SRO 59 lead to filing of SWP No. 255/2019
by All Kashmir PHE Employees Federation, in which this Court vide its
order dated 13.02.2019 stayed the recoveries. It is pleaded that
notwithstanding the stay of recoveries passed by this Court on 13.02.2019,
the petitioners issued a communication bearing No. 18-19 dated 03.04.2021
and a Circular bearing No. A/Codes/Pension/2020-166 dated 11.02.2021 and
initiated the process of recovery of the benefits erroneously released in
favour of the respondents.
6. Feeling aggrieved, the respondents filed OA No. 1016/2021 seeking
inter alia the following reliefs:
(1) quashing the Communication No. 18-19 dated 3rd of
April, 2021.
(2) quashing the circular bearing No.
A/Codes/Pension/2020-166 dated 11.02.2021 issued
by the Commissioner Secretary to the Government,
Department of Finance.
(3) restraining the petitioners herein from making a
recovery of the benefits granted to the respondents
under SRO 59 of 1990 from the salaries of the
respondents.
(4) directing the petitioners to continue to pay the revised
pay scale to the respondents as has been fixed in terms
of SRO 59 of 1990 and as reflected in the service
books.

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7. In the writ petition, the writ petitioners did not lay specific claim on
their entitlement to the benefits under SRO 59 of 1990, but claimed that the
amount though erroneously paid under the said SRO could not be recovered
in view of the law laid down by the Apex Court in the case of State of
Punjab and Ors. vs. Rafiq Masih and Ors , reported as 2015 (4) SCC 334 .
8. The writ petition was contested by the respondents, who in their reply
affidavit, disputed the entitlement of the respondents to the benefit of SRO
59 of 1990, granted in the year 2017, that too, retrospectively w.e.f. 1st of
April 1994. It was pleaded by the petitioners that the benefit of SRO 59 of
1990 was extended to the respondents erroneously and by an incompetent
authority and, therefore, nothing would stop the petitioners to take corrective
measures and withdraw the benefit erroneously granted. The petitioners also
justified the recoveries by submitting that nobody particular an employee
cannot be permitted to reap the benefits of a wrong committed by its
employee inadvertently.
9. The Tribunal, having considered the matter at length, came to the
conclusion that the respondents may not be entitled to be extended the
benefit of SRO 59 of 1990, but the fact remains that this benefit was given to
them by the petitioners of their own without there being any concealment or
fraud practiced by the respondents to obtain such benefit, and, therefore, in
view of the law laid down in Rafiq Masih (supra), the recovery of the
amount erroneously paid to the Class IV employees, was not permissible.
The Tribunal without giving any further reasoning also restrained the
petitioners herein to correct the mistake and directed the continuation of the
benefit of SRO 59 of 1990 granted to the respondents. This is how OA was
allowed by the Tribunal in terms of the judgment impugned.

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10. Having heard learned counsels for the parties and perused the material
on record, we find that there is no serious contest between the parties on
facts.
11. Indisputably, all the respondents who filed OA before the Tribunal are
Class IV employees working as Assistant Lineman/Work Supervisor.
Recoveries of the amount erroneously paid to them under SRO 59 of 1990 in
the year 2017 were initiated when most of the respondents had retired on
superannuation. In other cases also, the benefit was extended on 21st of
th
September, 2017 / 25 of September 2017 and the same was withdrawn on
3rd of April, 2021 i.e., after about four years.
12. The respondents did not contest the contention of the petitioners that
the benefit of SRO 59 of 1990 which was granted to them in the year 2017
w.e.f 1st of April, 1994 was erroneously granted, that too, by the
incompetent authority. There is thus no adjudication by the Tribunal as to
whether the benefit of SRO 59 of 1990 was rightly extended to the
respondents or not, and rightly so, as this was not the bone of contention
between the parties before the Tribunal.
13. A short grievance that was projected in the OA and later emphasized
during the course of arguments on behalf of the respondents was that in view
of the law laid down by the Hon’ble Supreme Court in Rafiq Masih , the
recovery of the amount, may be, erroneously paid was not permissible. In
the given admitted fact situation, we need to give a quick look to the case
law on the subject.
14. In Rafiq Masih (supra), the case before the Hon’ble Supreme Court
was in respect of employees belonging to Class III and Class IV service who
had been extended the monetary benefits in excess of their entitlement and

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these benefits had flown to them consequent upon a mistake committed by
the competent authority of the employer in determining the emoluments
payable to them. It was found that the employees were not guilty of
furnishing any incorrect information which had led to the concerned
competent authority to commit the mistake of making the higher payment to
these employees. The payment of higher dues to the employees was also not
on account of any misrepresentation made or fraud committed by them. The
Hon’ble Supreme Court thus considered the issue as to whether such
employees against whom an order of recovery of the excess amount had
been paid should be exempted in law from the reimbursement of the same to
the employer. The Hon’ble Supreme Court having surveyed the entire case
law on the subject, in particular, the decisions in the case of Syed Abdul
Qadir vs State of Bihar, (2009) 3 SCC 475 and Shyam Babu Verma vs.
Union of India (1994) 2 SCC 521 and Col. B. J. Akkara (Retd) vs.
Government of India (2006) 11 SCC 709 summarized its conclusions in
paragraph 12 which reads thus:
“12. 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).

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(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.”

15. This judgment rendered by the Supreme Court serves as a locus
classicus on the subject, though it has also been interpreted in the later
judgments in the context of fact situations presented in different cases. Just
before the judgment of the Supreme Court in Rafiq Masih , the issue was
considered by the Hon’ble Supreme Court in the case of Chandi Prasad
Uniyal & Ors. vs. State of Uttarakhand & Ors reported as (2012) 8 SCC
417 . In Chandi Prasad Uniyal , the Hon’ble Supreme Court was
considering a question as to whether overpayment of amount due to wrong
th th th
fixation of 5 and 6 Pay Scales of Teachers/Principals based on the 5 Pay
Commission Report could be recovered from the recipients who were
serving as Teachers.

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16. After considering the case law on the subject, the Hon’ble Supreme
Court was of the view that the Supreme Court had not laid down any
principle of law that only if there is a misrepresentation or fraud on the part
of the recipient of the money in getting the excess pay, the amount paid due
to wrong fixation of pay, be recovered. The judgments rendered in Syed
Abdul Qadir and Shyam Babu Verma as also Col. B. J. Akkara were
relied upon by the Hon’ble Supreme Court. What was held by the Hon’ble
Supreme Court in para 15, 16 and 17 of the judgment reads thus:
“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.
16. We are 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 recipients. We fail
to see why the concept of fraud or misrepresentation is
being brought in such situations. Question to be asked is
whether excess money has been paid or not may be due
to a bona fide mistake. Possibly, effecting excess
payment of public money by Government officers, may
be due to various reasons like negligence, carelessness,
collusion, favouritism etc. because money in such
situation does not belong to the payer or the payee.
Situations may also arise where both the payer and the

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payee are at fault, then the mistake is mutual. Payments
are being effected in many situations without any
authority of law and payments have been received by the
recipients also without any authority of law. 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.
17. We are, therefore, of the considered view that
except few instances pointed out in Syed Abdul
Qadir case (supra) and in Col. B.J. Akkara (retd.) case
(supra), the excess payment made due to wrong/irregular
pay fixation can always be recovered”.

17. The aforesaid view has been affirmed by the Hon’ble Supreme Court
in a later judgment rendered in Thomas Daniel vs State of Kerala and
Ors., 2022 Live Law (SC) 438. The law laid down by the Supreme Court in
the case of Rafiq Masih and Thomas Daniel , has been relied upon by this
Court in a number of judgments and the recoveries from Class IV
employees, who had been paid the higher wages erroneously, on retirement
or at the verge of their retirement have been quashed. This Court has,
however, permitted the employers to correct the mistake committed for
future. One such judgment is rendered in the case of Union Territory of JK
& Ors. vs. Deshbir Singh & Anr. decided on 22nd of September 2023. An
SLP preferred there against has been dismissed by the Hon’ble Supreme
Court.
18. Be that as it may, the situations culled out in para 12 of the Rafiq
Masih is a guiding light to decide such cases where recoveries are sought to
be effected from employees belonging to Class III and Class IV service on

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the ground that they had received the benefits of higher pay scale
erroneously.
19. When we examine the case of the respondents herein, in the light of
trite law, we find that they are the employees who belong to Class III or
Class IV service of Jal Shakti Department. They were granted the benefit of
SRO 59 of 1990, may be, erroneously by the petitioners in the year 2017
retrospectively with effect from 1st of April 1994.
20. The respondents were neither privy to nor had been instrumental in
getting the aforesaid erroneous benefit. There is no allegation against the
respondents of having misrepresented or committed fraud for obtaining the
said benefit. The respondents enjoyed that benefit for four years, and then,
suddenly, the petitioners realized that the benefit of SRO 59 had been
wrongly released in favour of the respondents by the incompetent officers.
They initiated process for withdrawing the benefit and effecting recoveries.
By the time the recoveries were initiated, most of the respondents stood
retired, though many of them were still in service. Be that as it is, the instant
case would squarely fall in Clause (i) of para 12 of Rafiq Masih which
clearly lays down that recoveries by the employer would not be permissible
from the employees belonging to Class III and Class IV (or Group ‘C’ or
Group ‘D’ service).
21. We are however not in agreement with the Tribunal that
notwithstanding that the benefit of SR 59 of 1990 was erroneously extended,
the respondent would be entitled to reap the benefit of wrong for future as
well. Once it is conceded that the grant of benefit of SR 59 of 1990 was a
mistake committed by the officers of the petitioners, nothing prevents the

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petitioners to take corrective measures and undo the wrong. There could be
no countenance of the contention that once a mistake is always a mistake
and that the mistake once committed, though bonafide, is irreversible.
22. The petitioners did nothing wrong when they corrected their mistake
which was pointed out to them by the Director of Finance concerned.
However, in view of the legal position adumbrated hereinabove the recovery
of the amount already paid to the respondents on account of wrong
extending of the benefit of SR 59 of 1990 was not permissible. The
respondents are small time employees getting a meagre salary. Whatever
was paid to them as additional pay on account of extending the benefit of SR
59 of 1990 was spent by them by adjusting their lifestyle. It would be too
harsh to them if this benefit is suddenly withdrawn either from the
pensionary benefits (in case of retirees) or from the salaries (in case of
respondents in service). This may not hold true in case of employees holding
higher positions in the non-Gazetted cadre or the officers in the Gazetted
cadre.
23. Having regard to the status of Class III and Class IV employees and
the amount of salary they receive, the Supreme Court has carved out an
exception in their favour and that is clearly stated in clause (i) of para 12 of
Rafiq Masih.
24. In view of the aforesaid, the judgment passed by the Tribunal deserves
to be upheld in so far as the recoveries from the respondents are concerned,
but needs to be modified to the extent it prevents the petitioners from
correcting the mistake for future and refixing the salary and pension of the
respondents. Ordered accordingly.

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25. The petitioners shall be well within their right to correct the mistake
and refix the salary or pensionary benefits as the case may be, by
withdrawing the benefit of SRO 59 erroneously extended to the respondents.
26. With the aforesaid modification, the judgment impugned is upheld
and this petition disposed of, accordingly.


(SANJAY PARIHAR) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR:
29.04.2026
Altaf

Whether approved for reporting? Yes

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