tt^\^ y mGH COTTRT OF CHHATTISGARH AT BILASPTJR Writ Peti<ion (S) No. 2718 of2008 PETITIONERS 1. Gumdatt Sharma^ S/o P.amcharan Sharma, aged about 65 vears, Retire Assistant Teacher, Block Dongargarh, Distt. Rajtiandgaosi (CG). 2. Chaitu Ram Sahu, S/o Shri Jhadu Ram Sahu, aged about 67 yeais, Retire Assistant Teacher, Blocfc & Distt. P.ajnandgaon (CG). 3. Shankar Lal Yadav, S/o Late Mahettar Ram, aged about 63 years, Retire Assistasit Teacher, Block & District Rajnandgaon (CG). 4. Shri Narendm Kumar Shrivas, S/o Late Shri Laxiiii Prasad, aged about 64 years, Retire Assistant Teacher, Block & District Rajnandgaon (CG). 5. Kaliram Sahu, S/o Late Mahettar Ram, ^ed about 63 years^ P.etire Assistant Teacher, Block & District Rajnandgaon (CG). 6. Jeevrakhan Lal, S/o Late Ashumram, aged about 66 years, Assistant Teacher, Block & District Rajnandgaon (CG). 7. Sukhdhar Lai Dewangan. S/o Late age about 65 years, Retire A^sistant Teacher, Block Dongargarh, District Rainandgaon (CG). 8. Kanwa! Ram Dewangan, S/Q Late Siran Dewangan, aged about 63 years, Asistant Teacher. Block Dongargarh, District Rajnandgaon (CG). 9. Chumii Lal Sao, S/o Late Jhamal Lal Sao, aged about 66 years, Retire Assistant Teacher^ Block Dongargarh, District Rajnandgaon (CG). lO.Kashi Ram Mimjaria, S/o Shri Bhola Das, aged about 65 years, Retire Assistant Teacher, Block Dongargarh, Districf Rajnandgaoii (CG). ll.Daulat Ram Basaune, S/o Late Umed Ram, aged about 63 years, P^etire Assistant Teacher, Block Dongargarh, EHstrict Rajnandgaon (CG). 12.Ghanshyam Singh Thakur, S/o Kanchi Ram, aged about 65 years. Retire Assistant Teacher, Block Chhuriya, District Rajnandgaon (CG). 13.Hriday Ram Kumbhkar, S/o Late Jhagru, aged about 67 years, Retire Assistant Teacher, Block Chhuri}^ District Rajnandgaon (CG). 14-Bharat Lal Patel S/o Late Sitaram, aged about 65 years, Retire Assistant Teacher, Block Dongargarh, District Rajnandgaon (CG). 15.Laxmmarayan Sonwani, S/o Parasraiii Sonwani, aged about 65 years, Retire Assistant Teacher, Block Dongargarh, District Rajnandgaon (CG). ^\ VERSUS RESPONDENTS l.State of Chhattisgarh Through : The Secretary, Education Department, DKS Bhawan, Raipw (CG). 2. State of Madhya Pradesh Through: the Secretary, Education Department, Vallabh Bhawan, Bhopal (MP). 3.District Education Officer^ Rajnandgaon, District Rajnandgaon (CG). (WRTT PETmON IJNDER ARTICLE 226 OF THE CONSTmJHON OF INDIA) (8B: Hon'bleMr SatishK.Agpihotri,.X) Present Shri Anup Majumdar^ Advocate for the petitioners. Shri Y.S. Thakur, Deputy Advocate Generai for the State. ORALORDER (Passed on 09th day ofMay, 2008) With the consent ofthe parties, the matter is taken up for hearing, finally. 1. IA. No. 01^ application for taking document on record, is ordered as prayed for. 2. By this petition, the petitioners impugn the order dated 23.08.07 (Annexure P/2) passed by the respondent No. 03, whereby it has been directed to recover/adjust the excess amoiint of second up-gradation granted to tfae petitioners as pertime bound advancement scheme w.e.f. 01.01.98 instead ofQl .08.2003. 3. The brief facts, in nutshell, are tliat the petitioners while working as Assistant Teachers in different schools, retired on attaining the age of superamiiiation. They received the impugiied order dated 23.08.2007 (Aimexiire P/2), issued by the respondeat No. 3, wherebyit has beeo. directed to recover/adjust fhe excess amount which has been paid to them as second kramonnati, from the p^nsionary benefits of the petitioners. 4. Being aggrieved, tlie petitioners have filed this petition, stating that no recovety can be made without affordmg an opportunity of hearing to the petitioners after retirement, as such the order is illegal, arbitraiy and unreasonable. 5. Leamed counsel appearing for the petitioners submits that tiiere is tio fault on the part ofthe petitioiiers and tfae amoimt was paid to theiii in ^•"^ f ^ -ii ^;^-?. ^%^;" ^M^^ ^i / 3 ^^ accordance with the pay scales, revised and fixed by the respoiidents firom time to time. The respoiidents camiot recover the amouiit, already paid to the petitioners after his retireinent, that too without followmg the principles of natural justice. Leamed counsel farther submits that the petitioners do not want to press other reliefs on merit, except that tlie amount which has already been paid to the petitioners cannot be recovered jfrom the retiral dues/gratuity amount on aceount of excess payment made to the petitioners during that period without affording an opportiinity ofhearing. 6. On the other hand, learned counsel appearing for the State/respondents submits that as per circular dated 24.04.2006 (Annexure P/l) issued by the Govt. of Chhattisgarh, General Administratioii Department, tfae benefits ofsecond up-gradation is to be given effect from 01.08.2003 not from 01.01.98, since the petitioners havs granted the said benefit w.e.f 01.01 98 mid the pay ofthe petitioners were fixed contraiy to tiie provisions and on scmtiny, it was found that excess amount has been paid, the same can be recovered from the retiral benefits/gratuity amount of the petitioners, even on retirement without affording an opportunity ofhearing. 7. The Supreme Coiirt, m the case ofSahib Ram Vs. Sfafe ofHaryana emd other^, in para 5 has held as under: "5. However^ it is not on account of any misrepresentation made by the appellant that the benefit of higher pay scale was given to him but by wrong constmction made by the Principal for wliich the appellant cannot be held to be at fauit. Under the circumstances the amount paid till date may not be recovered from the appellant." 8. The Supreme Court, in the matter of P. Tulsidas and others v. Govemment of A.P. and othors2, obsen^ed that tho bcncfit accrucd earlier by way of grant of higher pay or revised pay, cannot be taken away as tilie same is violative ofAjlicle 14 and 16 ofthe Constitation of India being arbitrar^/, imreasonable and expropriatory. ; 1995 Supp (1) SCC 20 2AIR2003SC43 ^^y::^:^.?^. ^ Y^-^' ^^•' 9. Learned counsel for the res-posidents/State relies on Rule 65 of the Chhattisgarh Civil Sendces (Pension) Rules, 1976 (for short 'the Rules, 1976?) for the purpose ofrecovety and adjustment ofGovemment dues. Rule 65 ofthe Rules, 1976 reads as under: "Rule 65 - Recovery and adjustment of Govemment dues:- (1) It shall be the duty of every retiring Govemment servant to clear all Government dues before the date of his retirement. (2) Where a retiring Govemment servaait does not clear the Govemment dues and such dues are ascerlainabte:- (a) aii equivalent cash deposit may be taken from him; or (b) out of the gratuity payable to him, his nominee or legal heir, au amomit equal to tliat recoverable 011 account of ascertamable Govemment dues shall be deducted. Explanation-1. The e5q5ression 'ascertainable Govemment dues' includes balaiice of house building or conveyance advance, arrears of rent and other charges pertaimng to occupation of Govemment Accommodation, over-payment ofpay and allowances and arrears ofincome tax deductible at source under the Inconie Tax Act, 1961" 10. The contention ofthe petitioiiers that even for exercisiiig power imder Rule 65 ofthe Rules, 1976, basic principles of natiiral jiistice arid fair play in action are required to be followed. In the present case, the State/authorities have not afforded any opportunity of hearing to the petitioner to put forward his case asto why the deduction from the grataily amount being excess amount cannot be made. The contention ofthe leamed counsel for the petitiosiers merits acceptance. 11. This Cowt, in the case of Vidyadhar Tiwari Vs. The State of Chhattisgarh & Others , has held that the excess payment, ifany, made to the petitioner, he was not at fault and the amount received by him might have been used by adjustmg himself accordingly treating the same as his salary. At this stage, directmg recove^ of the alleged excess amount from the pensiosiaty benefits/gratiiity amount of the petitioner will not bejust and proper. 32006(1)MPHT105(CG) ^ ^, ^ •i^^- i;;< "'^^ ^^.» ''•^&......... ~k 1 ^ 12. In view ofthe foregoing and as admitted by leamed counsel appearing for both the parties, this petition is allowed in the terms ofthe order passed in the case of Vidyadhar Tiwari (supra) i.e. the impugned letter dated 23.08.2007 (Annexure P/2) regarding recovety of amount from the gratuity and other dues of the petitioners on account of excess payment/ is hereby quashed. The petitioners are entitled to fall pensionary benefits/gratuity amount without any deduction. However, it is open to the respondents to take recourse to Rule 65 of the Rules, 1976, ifso advised, in accordance. with law following basic principles ofnatumljustice. No order asto costs. Sd/- Satish KAgnihotri Judge Sahu