EB ^^ g^y S&s. ;^« d. f /— © IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR. WRIT PETITION (S) N0. <5%"\ OF 2009 PETITIONER f^ Shyamdeo Tiwari S/o Late RajkLshore Tiwari, aged about 79 years, R/o Villageand Post Ataula, District Garhwa, Jharkharid VERSUS RESPONDENTS ^^' iv-y ..'•••" ''..••(S,;(rf.l(?"''«\..-"" "^^ y^'1. State of C.G., through: the Secretary, Education Department, DKS, raipur (C.(5.) ^2: The District Education officer (Deputy Director Education) Surajpur, District Surguja C.G. WRIT PETITION UNDER ARTICLE^S26 OF THE CONSTITUTION OF INDIA FOR ISSUE OF AN J^PPRQPRIATE WRITIN THE NATURE OF MANDAMUS/CERTIORARI ETC. OR DIREeTION70RDERIN THE UKE NATURE ETC. MAY THIS PLEASE TO YOUR LORDSHIP, 'ggl'ht.~.!ljtf»- t-'r ^ fc•^p ^ <^-(9) HIGH CQURT QFCHHATnSGH AT BILASPUR PETmONER (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) No. 2531 of 2009 Shyamdeo Tiwari RESPONDENTS VERSUS The State of C.G. & another. Shri A.N. Pandey, counsel for the petitioner. Ms. SunitaJain PL for therespondents/State. WRIT PETITION UNDERARTICLE 226/227 OF THE CONSTITUTION OF INDIA ORDER (20.08.2009) With the consent ofthe partiesthe matter is heard ffnally. 2. Challenge inthispetition is to the order dated 1.9.4.1996 (Annexure P-2) by which recovery of Rs. 41,848 has been sought to be made from the petitioner. Petitioner who was working as head master in the school education department retired from service vide order dated 10.3.1995 (Annexure P-1) with effect from 31.1.1989, after attaining the age'of superannuation. 3. Grievance of the petitioner is that in the serviee book of the petitioner, his dateofbirth was recorded as 2.1.1929 but his actual date of birth is 14.3.1935, and based on that actual date he was allowed to continue in service even after completion of age of 60 years and ultimately as he was retired with effect from 31.1.1989 vide order dated 21.11.1990 (AnnexureR-1). Contention of the petitioner is that even if by mistake the petitioner has been allowed to continue till 30.11.1990 in stead of 31.1.1989, no recovery can be made for the period from 31.1.1989 to 30.11.1990 beeause admittedly he worked as head master during this period. Further| contention of the petitioner is that the impugned order has beeni issued without conducting any enquiry andwithout giving any shows w cause notice to the petitioner and thus principle of natural justice has been violated in this case. 4. On the other hand counsel for the respondents/State submits that the actual date of birth of the petitioner is 2.1.1929 and the petitioner by misrepresentation has shown Ms date of birth as 14.3.1935 and thus hewas wrongly allowed to perform his duties after 31.1.1989. She further submits that the entry of date of birth in the service book was unsuccessfully challenged by the petitioner before the M.P. State Administrative Trtbunal and once the petition is dismissed vide order dated 20.6.1994, petitioner is not entitled for any salary after 31.1.1989. She further submits that the petition has been filed in the year 2009 whereas the order retiring the petitioner with effect from 31.1.1989 has been passed on 10.3.1995 vide (Annexure P-1) and the reeovery order has been issued on 19.4.1996 vide (Annexure P-2). On the point of delay, it is submitted by the petitioner that as his retrial dues have been settled on 16.7.2008 vide annexures (P-5 and P-6), there is no delay in filing the petition. 5. Heard counsel for the parties and perused the material available on record. 6. Admittedly while issuing the order impugned the petitioner has not been given any opportunity of hearing norany show cause notice was issued to him or any enquiry was conducted. Even ifthe petitioner was to retire on 31.1.1989 but when he continued in the job-till 30.11.1990, he.is entitled for his salary from 31.1.1989 to 30.11.1990. Though in the order dated 21.11,1990 (Annexure R-1) it has been mentioned that the Departmental Enquiry was contemplated against the petitioner, in fact no such enquiry has been conducted by thedepartment. It is nobody's case that any ff wrong entry has been made by the petitioner in the service book. Even othenA/ise, as already held hereinabove, once the petitioner has worked till 30.11.1990, he is entitled for the salary for this period. 3- 7. In view of above, petition deserves to be allowed and the order impugned dated 19.4.1996 (Annexure P-2) regarding recovery of Rs. 41,848 is liable to be set aside. 8. The result is that the petition is allowed and the order impugned dated 19.4.1996 (Annexure P-2) is set aside. If the deduction has already been made, the sameshall be re-payable to him with interest at the rate of 6 per cent per annum. Needless to say that the respondents can always take the recourse to Rule 65 of the Chhattisgarh Civil Services (Pension) Rules, 1976 if so advised in accordance with law after following basic principl^s of natural jusfice. ; 8. Petition thus succeeds. Sd/- Pritmker Diwakar Judge