I mm BWH $ S.B. [Service Matter) IN THE HON’BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (CHHATTISGARH) C§lwk. WRIT PETITIOMS} Noé'Bé? {2009. PETITIONER: Tirsani Baj, Daughter of Late Shri Ram Dev, aged about 45 years, working as Cook, Govt. Middle School, Dharamjaigarh Colony, Dharamjaigarh, Tahsil Dharamjaigarh District Raigarh, Chhattisgarh. versus x 1. State of Chhattisgarh, Through Secretary, Tribal Welfare Department, D.K.S. Bhawan, Raipur, Chhattisgarh. 2. Commissioner, Tribal Welfare Department, Raipur, Chhattisgarh. eoHecteerRaigar-hrBist-éet “y 3. Assistant Commissioner, Tribal Welfare Department, Raigarh, District Raigarh, Chhattisgarh. )14. ollector, (Tribal Welfare Branch) C District Raigarh, Chhattisgarh. Respondents WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA / HEGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 6367 (£2999 PETITTONER : Tirsani Bai. VERSUS RESPONDENTS : State ofChhattisgarh & Others. WRTT FETITION UNDER ARTICLE 226 OF THE CONSTITUTTON OF INDIA SB: Hon’ble Shri Satish K. Agnihotri, 3. Presant: Shn Hamil Khumwa Advocate w1th Shn C J Ts Rae AdVmate for the pentloner Shn T\ V Royf Panel Lawyer fer the State/respondents. ORDER (ORAL) (Passgd on 05m day 0f November, 2009} By This petition, the petitioner prays fey a direction to ihe respenden‘: authon'ties for gram of arrears of reguiaz‘ pay scale which was Withcirgwn by arder dated 4m October, 1997 {Amwxure 3/3). 2. The indisputable facts Tn nutshell, are that the petitioaer was appointed or: contingency basis 0:1 The pQS‘i of Cook in the Tribal Departnient by order I dated 11th Getober, 1989 (Atmemre P/l). ThereafLer, by oreer dated 11 th October 1992 (Amexure P/Z)‘ the petitioner was gramed regular pay scale. Eoxxexel the same was Withdrawn by order dated 4m Oetober 19“" (Aimerrure PB) Without affording an opportunity of hearing to the petitiorler. Being aggrieved, similarly situatetl persoos pret‘enecl a writ petitiog before the High Couxt of Madhya Pradesh. In the meanwhiie. the responéent No. 4 vlde order dated 9m September. 2008 (Armexure PM) granted regular pay scale to the petitioner Without granting arrears of salary for the period from 4m October, 1997 to 9m September, 2008. Thes, tble \T\\ petition. @é 3. Shri Khuntiya, learned counsel appean'ng for the petitioner submits that the identical question came up for consideration before this Court in Sam Kumar Others v. State of Cirham'sgarh & Others] which was decided on ig‘h Januaw, 2006. Learned Counsel appearing for the parties submit that the issue involved in the present case is squarely covered by the judgment dated 18m January, 2006 passed by this Court in Sam Kumar (Sttpra) and the judgment dated 27m October, 2009 in Ram Kama? Sam; v. State ofJt/[aa’hya Praciesh & Others}. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. The issue involved in the case is that the petitioner was granted regular pay scale way back and without adording any opportunity of hearing to the petitioner, the same has been Withdrawn. In Sam Kumar (supra); While dealing with the identical situation and facts of the case, this Court observed as under: “5. In the facts of the present case, the petitioners g have been availing regular pay scales from various dates till the impugned order dated 3.8.2000 (Amiexure P/l) was passed. The impugned order could not have. been passed without issuing proper show cause n'dtice or Without giving the petitioners a hearing in the matter. Learned counsel for the respondent submits that the enquiry has already been initiated and pending enquiry the impugned orders have been passed. The impugned orders visit with civil consequences. Since the impugned orders were passed before conclusion of enquiry and Without affording the petitioners a hearing, the impugned orders are bad and invalid. 6. For the reasons stated above and in view of the decision of the Supreme Court in' case of Bhagwan Shukla (supra), the petition is allowed and the impugied orders are quashed. The petitioners are ad) ‘-‘w.P, No. 2125 of2002 é WP. (S) No. 1999 or2oo5 §’% entitled t9 regular pay scaies accordingly ii‘om the date, the same have been withdrawn by the impugned orders. NO order asto costs.” The Staie Government have taken the aforesaid matter to the Supreme Court by way of Special Leave Petition. The Supreme Court dismissed the S.L.P.(C) N0. 17122 of 2006 (State of Ckham'sgarh d’c Others v. Sam Kamar d} Others), upholding the decision passed by this Court in San: Kumar (stgpm) on 9”“ October, 2006. regard to the issue of recovery of amount paid to the employee. the re Supreme Court, in Syed Abdul Qaciz'r and others v. State OfBz‘kczr he decisiorzs rendered earlier in Sahib Ram v. State QfHaryam, Shyam Babu Verma v. Union offndz'a, Union qf India v. M. Bimskar, Z5 Gangaram v. Director, Col. BJAkkam dietd.) v. Govt. of Imiz‘a, Penishottam LaZ Des v. State ofBz‘imr, Punjab National Bcmk v. jl/Iaiy‘eei Single: and Bjhar SE8 v. Bijay Bahadur, observed as under: § : cmd othersa, having considered all vl-e- “57. This Court, in a catena of decisions has granted reiief agaihst recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part ofthe employee, and (b) if such excess payment was made by the employer by applying a Wrong principle of calculating the pay/allowance or on the Basis of a particular interpretationofrule/order, which is subsequently found to be erroneous. 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 enipioyee from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had kiwwledge that the payment received was in excess ofwhat was due or wrongly paid, or in case where the error is detected or corrected within a short time of wrong payment, the matter being in the realm ofjudicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount a i _ i s.“ .s. r (sous) s bu, 4/: / \_ f l pa1d m excess See Sah:b Ram V State ofHarvana Shyam Balm Vanna v Umon of Indta’ Unzor of Indra v M Bhaskar V Cangaram v State of Brhur Puma!) Ivazmnal Bank v lW/Iaryeet Smgh and Blhar SEB v Byav Bahadur 59. ‘Undoubtediy,.the excess amount that has beeri paid to the appellant teachers was not because 'of any mismpresentation or fraud on their part and the appeilants also had no knowledge that the amount that was being paid to them was more than what thev were entitled to. It wouid not be out of place to lnention here that the Finance Department had in its coonter—aftidavit, admitted that it was a bone; f1de 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 caielessness of the officials concerned of the Govemment 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 ofthe case at hand and to avoid any hardsnip to the appellant teacners we are of the View that no recoVery of the amount that has been ' rpaid in excess to the appellant teachers should be made 9. For the reasons stated hereinabove, the petition is allowed. The petitioner is entitled to airears ofregular pay scale for the period 4m October, 1997 to 9‘“ September, 2008. No order asto costs. ‘ "l. f ’/’ d]- K Agn1h0trl Judge SatiSh .