MMatterl IN THE HGN’BLE HIGH COURT‘OF CHHATTISGARH AT m BILASPUR {CHHATTISGARHI WRIT PETITIONS) No. 651$ /2009. PETITIONER: x Gauri Shankar Yadav, son of Late Kartik Ram Yadav, aged about 45 years, working as Peon Govt. Middle School, Baroud, Gharghoda, Tahsil Gharghoda, District Raigarh, Chhattisgarh. VCX‘SUS Resgondents State of Chhattisgarh, Through Secretaly, Tribal Welfare Department, D.K.S. Bhawan, Raipur, Chhattisgarh. Commissioner, Tribal Welfare Department, Raipur, Chhattisgarh. Collector, Raigarh, District Chhattisgarh. Assistant Commissioner, Tribal Welfare Department, Raigarh, District Raigarh, Chhattisgarh. Collector, (Tribal Welfare Branch) District Raigarh, Chhattisgarh. t WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA 1. PARTICULARS OF THE PETITIONERlSlz, s mentioned in the Cause title. 2. PARTICULARS OF THE RESPONDENT(S): A WRIT FETETEON UNDER ARTICLE 226 OE THE CONSTLI 1 R {ON OF INDIA I ’ resem: Shri C.J.K.Rao with Shri Harish Khutiya, Advocate for the petitioner. hri P.K.Bhaduri, Pal Lawyer r the State/respondents. S ne fo d t f r (Passe on 29 day o Octobe, 2009) 1. By this petition: the petitioner pras for a directio to the respondent y n authorities for gant of arrears of regular pay scale, which was withdrawr; by order dated 4m October, 1997. 2. The indisputabie facts, in nutshell, are that the etitioner was appointed on contingency basis by order dated 4th May, 1990 (Annexure IVE). Thereafter, by order dated 10‘“ February, 1994 (Annexure P/2), the petitioner was granted regular pay scale w.e.f. 3rd May, 1993. The same was withdrawn by order dated 4m October, 1997 (Annexme PB) without affording an opportunity of hearing to the petitioner. Being aggrieved, similarly situated persons preferred a writ petition before the High Court ofMadhya Pradesh. In the meanwhile, the respondent No. 4 vide order dated 9m September, 2008 (Annexure P/4) granted regular pay scale to the petitioner Without granting arrears of salary for the period from 4m ember, 1997 to 9m September, 2008. Thus, this ./ petition. HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) N0. 6265 0f2009 SB: Honble Shri Satish K. Agnihotlj, J. P ORDER ORAL} p PETITIONER Gauri Shankar Yadav. VERSUS RESPONDENTS State of Chhat‘tisgarh & Others. 3. Shri Rao; learned counsel appearing for the petitioner would submit that the identical question came up for consideration before this Court in Sam Kumar Others v. State of Chham’sgarh & Othersj which was decided on 18m January, 2906. 4. Learned counsel appearing for the parties submit that the issue involved in the present case is squarely covered by the judgnent dated 18"“ January, 2006 passed in Sant Kumar (supra) and the judgment dated 27th October, 2009 in Ram Kumar Saint v. State ofMadhya Pradesh 6?: Others. 5. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 6. The issue involved in the case is that the petitioner was granted regular pay scale way back and Without aifording any opportunity ofhearing to the petitioner, the same has been withdrawn. In Sam Kumar (supra), While dealing with the identical situation and facts of the case, this Comt observed as under: “5. In the facts of the present case, the petitioners haVe been availing regular pay scales from Various dates till the impugned order dated 3.8.2009 (Annexme P/l) was passed. The impugned order could not have been passed without issuing proper show cause notice 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 alfording the petitioners a hearing, the impugned orders are bad and invalid. . 6. For the reasons stated above and in View ofthe decision of the Supreme Court in case ofBhagwcm Shulcla (supra), the petition is allowed and the impugned orders are quashed. The petitioners are entitled to regular pay scales accordingly from the J 1 WP. No. 2125/2002 date, the same have been withdrawn by the impugned orders. No order asto costs.” The State Government took up the aforesaid matter to the Supreme Court by way of Special Leave Petition. The Supreme Court dismissed the S.L.P.(C) No. 17122 of 2006 (State of Ckham‘sgarh &r Others v. Sam‘ Kumar 0?: Others), upholding the decision passed by this Court in Sam Kumar (supra) on 9th October, 2006. With regard to the issue of recovery of amount paid to the employee, the Hon’ble Supreme Court: in Syed Abdul Qadir and others v. State of Bihar and othersz, having considered all the decisions rendered earlier in Sahib Ram v. State ofHaryana, Shyam Babu Verma v. Union of India, Union of India v. M Bhaskar, V. Gangaram v. Director, Col. BJAkkara (Reid) v. Govt. offna’z'a, Pumshottam Lal Das v. State of ,Bz‘har, Punjab Nationai Bank v. Manjeet Singh and Bihar SEB v. Bijay Bahadur. observed as under: “57. This Court, in a catena of decisions has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fi'aud on the part of the 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 interpretation of rule/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 employee 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 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 ofthe amount paid in excess See Sahib Ram v. State offfaiyaim, Shyam Balm Verma v. Elation oflndia, Union of India v. M. Bhaskar, V. Gangaram v. State ofBz'kar, Punjab 1 2 (2009) 3 scc 475 Natfonal Bank v‘ Manjeet Singh and Bihar SEB v. Bg'jay Bahadur. 59. Undoubtedly, the excess amount that has been paid t0 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-allidavit, admitted that it was a bona tide mistake on their part. The excess payment made was the result of wrong inteipretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole conihsion was because of inaction, negligence and carelessness of the olficials concemed 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. ” V r Sdl- i; Satish K. Agnihntri -' : I; Judge H 9. For the reasons stated hereinabove, the petition is allowed. The petitioner is entitled to arrears of regular pay scale for the period 4th October, 1997 to 9t“ September, 2008. No order asto costs.