Cr- i £T^> 5 "l^ 5'tT^^ RESPONDENTS IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH W.P.tSlNO. ^:?^< /2008 PETITIONER ^Subhash Chand Tiwari S/o Late K. L. Tiwari, aged about 68 years, Occupation Retired Lecturar , R/o Near Bademath Lohar Para Champa, District- Janjgir Champa (C.G.) - VERSUS 1. State of Chhattisgarh, Through Secretary, School Education Department, D.K.S. Bhawan, Raipur, C.G. 2. The Director, Directrate Public Instruction Raipur, (C.G.) 3. The Joint Director, Treasary, Accounts and Pension, Bilaspur (C.G) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUE QF__AN APPROPRIATE WRIT IN THE NATURE OF MANDAMUS/CERTIORARI ETC. OR DIRECTION/ORDER IN THE LIKE NATURE ETC. A^^ HIGH COURT OF CHHATTI8GARH : BILA8PUR | WRIT PETITION fS) No. 6324 of 2008 PETITIONER : Shri M. L. Tiwari VERSUS RESPONDENTS : State of Chhatdsgarh & ofhers And W.P.(S) Nos. 6325/2008, 243/2009, 300/2009 and 301/2009. WRIT PETITIONS UNDER ARTICLE 226 OFTHE CONSTrTUTION OF INDIA (SB: Hon^ble Shri Satish K. Agnihotri J.) Shri Rakesh Pandey, Advocate for fhe petitioners. Shri Yashwant Siagh Thakur, Deputy Advocate Geiieral wifh Ms Sunita Jain, Panel Lawyer. ORDBR (orall (Passed on this 10th day ofSeptember, 2009) Heaid. 1. The aforeiaentioned five writ petitions involve coinnion question of facts aad law, asto whefher, the employee of the State Govemment is entitled to benefits of initial pay ia fhe tune scale of higher post on beiag appoiated to aaofher post canyiag duties aiid responsibiLities of greater iaiportaace ia accordance with Rule 22-D of the M.P./C.G. Fundamenfal Rules (for short, aF.R."). The aforementioned writpetitions also iavolve common questiton offacts aad law, asto whether, recovery of excess payment caa be made without followmg the principles ofuaturaljustice. 2. The brief facts, in nutsheU, are that in W.P.(S) No. 6324/2008 the petitioner Shri M, L. Tiwari, whUe workmg on the post of Head Master was promoted to the post of Lecturcr on 28.1.1988, After his retirement by order dated 28.3.2008 (Annexure P/l) a sum of Rs. 51,473/- has been recovercd from fhe retiral dues, as excess payment, 3. In W.P.(S) No. 6325/2008 fhe petitioner Subhasfa Chaad Tiwari, while working on the post of Head Master was promoted to the post of Lecturer on 21.1.1988. After his retiirement by oxder dated 10.1.2003 (Annexiure P/l) a sum of Rs. 28,046/- has been recovered fipora titie retiral dues, as excess payinent. 4. In W.P.(S) No. 243/2009 the petitioner Loond Raai Jaiswal, while workmg on fhe post of Head Master was promoted to the post of Lectarer on 24,10.1996* After his retirement by order dated 23.2.2005 (Aimexure P/l) a siuu of Rs. 15,730/- has been recovered J&x>m fhe retiral dues, as excess payment 5. In W.P.(S) No. 300/2009 the petitioaer Kamaldhar Patel, white workiag on the post of Head Master was promoted to the post of Lecturer on 10.4.1989. After his retircment by order.dated 6.2.2007 (Annexure P/1) a sum of Rs. 58,788/- has been recovered fix>m fhe rctiral dues, as excess payment. 6. In W.P.(S) No. 301/2009 the petitioner Basaat Lal Kaser, while workiag on fhe post of Head Master was promoted to fhe post of Lecfurer on 20.10.1995. After his retirement by order dated 10.6.2002 (Annexure P/l) a sum of Rs. 17,173f- has been recovered fix>m the retiral dues, as excess payment 7, Shri Rakesh Paadey, learaed couiisel appearing for fhe petitioner submits fhat all fhe five petitioners, whUe working on fhe post of Head Master were promoted to fhe post of Lecturer. Their pay was fbced in accordaace with fhe provisions of F.R, 22-D, on fhe post of Lecturer canyiag higher rcsponsibility. The provisions of F.R. caanot be superceded by aay executive iastructions. The post of Lecturer is a promotional post. The orders of recoveiy of amount have been passed wifhout affordmg an opportunity of hearmg to i ^^€^^ •^s^i^ ^'" ^ fhe petitioners. Thus, fhe inipugned oxxlers of rccovery inay be quashed. To substaatiate his argument learaed counsel rely on a decision of this Court ia Chinta Mani Gupta Vs. State of CIihattisgarli fls others, Writ Petition No. 4797 of 2004, dated 27th March, 2008, as well as a decision in Vidyadhar Tiwari Vs. State of Chhattis^urh and others1. 8. Shri Yashwaat Siagh Thakur, learaed Deputy Advocate General wifh Ms Siuuta Jain, learaed Paael Lawyer appearing for fhe respondents/State, does not dispute the above submjhssion niade by learaed coiinsel appearing for fhe petitioners lliat these writ petitions are squarely covered by the decision of fhis Court ia Chinta Mani Gupta (supra), whercin fhis Court held as under: a13. It is clear j&om above that fhe post of lecturer is a promotional post Contention of leamed counsel for tibe State fhat fhe pay scale of Head Masters and Lecturcrs is sixmlar, is not supported by any docuixient. Siace fhe recoveiy order was passed wifhout affordiag proper opportunily of hearmg to the petitioner, the order of recoveiy is bad ia law ia the light of decisions of Hon^le Suprcme Court in fhe matters of Shyam Babu Verma and ofhers Vs. Union of India aad others, Sadiib Ram Vs, State of Haiyaaa and ofhers and decision ofthis Court ia Vidyadhar Tiwari Vs. State of Chhattisgarh aad otfaers^ 9. In view of fhe foregoiag, fhe writ petitions arc aUowed. The impugned oideis dated 28.3.2008, 10.1.2003, 23.2.2005, 6.2.2007 and 10.6.2002, directmg recoveiy ofexcess paynient are quashed. In case fhe amount has been recovered, fhe same shall be refunded back to the petitioners wiffa siuiple interest. The petitioners are entiUed to benefits ofFR 22-D. No order asto costs. Sd/- SatishK.Agnibot" Judge Thalmr 1 2006 (1) MPHT (CG) 105