^ c&^ \v HIGH COURT OF CHHATTISGARH: BILASPUR Writ Petition^No. 244 of2009 Petitioner Moti Lal Tamboli, S/o. Shri Bhukhauram, aged about 66 years, r/o. village and Post Sakti, opposite Peela Mahal, Sakti, District Janjgir Champa CG. Versus of Respondents 3 4. State of Chhattisgarh, through Secretary, Tribal Welfare Department, DKS Bhawan, Raipur (CG). The Assistant Director Treasury Accounts and Pension, Bilaspur. The Assistant Commissioner, Tribal Welfare Department, Korba. The Principal, Governinent Higher Secondary School, Sohagpur, District Korba, CG. (Writ Petition under Article 226 of the Constitution of India) (SB: Hon'ble Mr. Satish K. Agnihotri, J.) Shri Rakesh Pandey, counsel for the petitioner. Shri Panjak Shrivastava, Panel Lawyer for the State. ORDER (Passed on this day 20th March 2009) In this petition, a question of law involved is whether the employee of the State Government is entitled to benefits of initial pay in the time scale of higher post on being appointed to another post carrying duties and responsibilities of greater importance in accordance with Fundamental Rules (for short, "FR") 22-D ofthe M.P. Fundamental Rules. -Learned counsel appearing for the pedtioner subraits that the petitioner, while working as Head Master was promoted to the post of Lecturer cariying higher responsibility. He was initially granted benefits under FR 22-D. He retired from service on 1- ^ 5. 8-2005 after attaining the age of superannuation. Learned counsel submits that the FR are made by the Secretary of State in Council under Section 96-B of the Government of India Act, including the orders issued by the Secretary of State, Goveminent of India and Auditor-General and the Supplementary Rules framed by the local Govemment which are applicable to the service conditions of govemment employees and have attained the status of rules framed under Article 309 of the Constitution of India. Thus, FR cannot be superceded by any executive instructions. Learned counsel appearing for the petitioner submits that this case is squarely covered by a decision of this Court dated 27th March, 2008 (Annexure P/5) in Writ Petition No. 4797 of 2004 ( Chinta Mani Gupta Vs. State of Chhattisgarh 85 others). Learned counsel appearing for the respondents does not controvert this submission. I have heard learned counsel appearing for the parties, perused pleadings and documents appended thereto. This Court in Chinta Mani Gupta (supra) held that "the order passed by the respondents-authorities withdrawing the benefits of FR 22-D granted earlier is bad and consequently no recovery can be made." It was.further held that "It is clear from.above that the post of lecturer is a promotional post. Contention of leamed counsel for the State that the pay scale of Head Masters and Lecturers is similar, is not supported by any document. Since the recovery order was passed without affording proper opportunity of hearing to the pedtioner, the 1 &--^K-^ ..'^..^^-•- ';..'\ i ~7 order of recovery is bad in law in the light of decisions of Hon'ble Supreme Court in the matters of Shyam Babu Verma and others Vs. Union oflndia and others1, Sahib Ram Vs. State of Haryana and others2 and decision of this Court in Vidyadhar Tiwari Vs. State of Chhattisgarh and others3." 6. In view of the foregoing, the petition is allowed and the order dated 21.3.2005 (Annexure P/l) directing recoveiy of the excess payment is quashed. In case the amount has been recovered, the same shall be refunded back to the pedtioner with simple interest. Accordingly, the petitioner is entitled to benefits of FR 22-D. No order asto costs. Thakur Sd/- Satish K. Agnihotri Judge