^\^^u IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR IC.G.} WRIT PETITION (S) N0.rh^\^ 1 2010 IN THE MATTER OF ARTICLE 226 OF THE CONSTITUTION OF INDIA ; AND ^€^/ ^^..'•"'CJS C^W /A^~0^ IN THE MATTER OF CHHATTISGARH CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1966; AND IN THE MATTER OF CHHATTISGARH FINANCE CODE PART-1; AND BETWEEN : Roshan Lal Kushal, son of Late Shri Chaman Lal Kushal, aged about 53 years, presently p&sted as Driver, in the office of Joint Director, Veterinary Services, Bilaspur, Chhattisgarh VERSUS 1. State of Chhattisgarh, through the Secretary Department of Agriculture & Animal Husbandry Department, Mantralaya, D.K.S. Bhawan, Raipur, Chhattisgarh 2. Director, Directorate of Veterinary Services, Raipur, District Raipur, Chhattisgarh 3. Joint Director, Veterinary Services, Composite Building, Opposite Collectorate, Bilaspur, Chhattisgarh WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION^FJKDJA FOR ISSUANCE OF APPROPRIATE WRIT IN THE NATURE OF MANDAMUS AND FOR ISSUANCE OF OTHER SULTABLE WRITS, DIRECTION OR DIRECTIONS. ORDER OR ORDERS ,^—^^, /s~^ ^.^. I'f ^^^ s HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) No. 3848 of 2010 PETITIONER RESPONDENTS VERSUS Roshan Lal Kushal State of Chhattisgarh and others Shri Amrito Das, counsel for the petitioner. Shri Chandresh Shrivastava PL for the respondents. WRIT PETITIONS UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA ORDER (08.12.2011) Challenge in this petition is to the order dated 30.10.2009 (Annexure P-1) and order dated 23.2.2010 (Annexure P-2) passed by respondent No.3 herein. By order dated 30.10.2009 revised pay fixation of the petitioner has been ordered whereas by order dated 23.2.2010 recovery of the excess payment made to the petitioner for the period between 16.12.1991 and 30.4.2009 has been sought to be made. 2. Facts of the case in brief are that the petitioner is working as Driver in the Veterinary Department and was regularized on the said post on 16.12.1991. His further case is that though he was entitled for the basic pay of Rs. 950, inadvertently he was granted the scale of Rs. 1150 and subsequently also based on the initial wrong fixation, he was granted thehigher pay scale. 3. Counsel for the petitioner submits that after about 18 years of service, the respondents are seeking to make the recovery of the excess amount paid to the petitioner due to wrong pay fixation which undisputedly has not been received by the petitioner by way of misrepresentation or fraud on his part rather it was on account of voluntary action of the respondents/authorities and thus the recovery sought for by the respondents cannot be made. He submits that the petitioner is a low paid employee and after a !ong period of 18 years ^ %. '^-. ...-^' .^ ^te^^ making recovery from him would be too harsh as the excess amount received by him might have been spent by him in his day to day needs. He submits that the issue as to whether recovery of the excess payment for no fault of the employee can be made without complying with the principle of natural justice is no longer res integra and the same has been settled by the Supreme Court in various cases including the case in the matter of Syed Abdul Qadir and others v. State of Bihar and others reported in (2009) 3 SCC 475 and relying on that judgment various orders have been passed by this Court directing refund of the excess amount if any recovered from the employees. 4. Counsel for the respondents submits that as the petitioner was not entitled for the higher pay scale which was inadvertently granted to him, respondents are justified in making recovery of the excess payment made to him. He however fairly submits that no opportunity of hearing was granted to the petitioner before passing the impugned orders and that there was no misrepresentation or fraud on the part of the petitioner as a result ofwhich any excess amount was paid to him. 5. In view of the foregoing factual and legal position, the order impugned dated 30.10.2009 (Annexure P-1) granting the revised pay scale to the petitioner and order dated 23.2.2010 (Annexure P-2) directing recovery of excess payment made to him are quashed. It is however made clear that so far as the fixation of present pay is concerned, the same shall not be disturbed. 6. Petition is thus allowed. Sd/- Pritinker Diwaker Judge