HGH COURT OF CHHAT'mSGARH : EILASPUR WRIT PETiTmN £5} NO. 4260 OF 2098 PETiTiGNER Hemant Singh Rajput, aged 41 years, son cf Lata smi Chudamané S§ngh Rajput, warking as Assistant Grade H3, offéce of the Princigai, Govt. (Tyibal We!fare Department), Higher Secendary School, Wlage Karainara, District Korba (CG), Rio RESPONDENTS Puram Basti, Wad NGA, Korba (CG) Versus ?he State of Chhattisgarh, through Secretaw, Depaa'tment cf Tfibal Welfare, DKS Bui§ding Secreiariate, Raipur (CG). The Assist“ant Commissioner, Tribai The Joint Director, Treasuries, Accoums & Pension, Biiaspur (CG). The Principal, Govt. (Ti/VD}! Higher $econdary Schooi, Karainara, Distt. Korba (CG). {Writ petition under Article 226 of the Constiiution of india) Single Eench : Hon’bie Shri Satish K. Agnihotri. J. Present :- Mr. Sameer Behar, counsel fer the peiitioner. Ms. $unita Jain. Panel Lawyer for the State. {Passed enWM this 8 day 9f May, 2W9} 1. Challenge in this petition is to the order dated ’i7—6~2GG8 {Annexure - P11) whereby the paymerit of revieed pay scale and reguiar pay scale made after compietion of 1V2 years i.e. 18 months of service 'was directed to be recovered from the petitioner. 2. The indisputabie facis, in nutsheii, as projected by the petitioner. are that by order dated 2-3-1 995 (Annexure - Pi2) the petitioner was appointed as Lower Division Clerk on the pay scaie oi Rs.95G to i530 on compassionate basis with a condition that the petiiioner has to oass the Hindi Typing Examination within a period oi 18 months. The petitioner couid not pass the said examination within the stipulated period, however, the oetitioner was granted the benefit of revised pay scaie and other admissible increments and allowances. After a period of 13 years by the impugned order dated 17-6-2008 it was directed to recover the excess payment made to the petitioner on the basis of revised pay scaie for a period i2 years 2 months i.e. from 1-3-i996 to AFK ' Weifare, Korba (CG). $R§L G§BER Sb 31-5-2008 on the grcuna that the petitiener comd not pass the reqmred examination wiihin the specified period Le. 18 months. 3. Mr. Behan warned counse! appearing for the petitioner, wouid submit that before passing the impugned order no opportunity of hearing was afforded to the petitioner, which is contrary to the weti settted law of the Hon'ble Supreme Court as weii as this Court. Even otherwise after having completed 4O years of age, the emgoioyee is not required to pass Hindi Typing Examination as per the circuier dated 15-1 1-2004. 4. Per contra, Ms. Jain, iearned Pane! Lawyer appearing for the State, in support'of the impugned ordet woutd submit that since the petitioner had faiied to pass the required test within the specitied period, the petitioner is not entitted to revised pay and other benetits, which have been given to him. As far as affording opportunity of hearing to the petitioner is concerned, learned counsel refers the notices dated 19-9-2003 (Annexure — Rm. 31-1 2-2063 (Annexure - R/Z) and Annexure — Ri3. 5, i have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 0n perusal of the documents Le. Annexures - R/1, Ri2 & R/3 it appears that no notice to the effect that asto why excess payment made to the petitioner while working on the post may not be recovered. The so caiied notices indicate oniy two or three lines by way of information that the petitioner should pass the Hindi Typing Examination and submit the mark sheet accordingiy. Thus, it cannot be held that any show cause notice or notice was issued to the petitioner before the impugned order directing recovery of payment was passed. With regard to the contention of the teamed counsel for the petitioner that after compieting 4O years of age, the petitioner is not required to pass the Hindi Typing Examination is concerned, no finding is necessary, as this is not the subject matter of this writ petition. Payment made to the petitioner in accordance with iaw. as no action has been taken by \\ the respondent authorities for about 12 years 2 months, after completion of 18 months of service. The Hon’bie Supreme Caurt in $ahib Ram Vs. State of Haryana and others‘ §n gas'a 5 has heid as under L “5. However, it is no: on account of any misreprasentation made by the appa££an€ mat iha benefif 0f higher pay sceie was given to him but by wrong construction made by the Pfincipw far which me appeiiam sannct be he‘d to be at fault. Under the circumstances, the amaunt paid til! date may not be racevered irom the appellant.” The Hon‘ble Supreme Court in P. Tulsidas and others v. Government cf AaP, and atheisa obeerved thai the benefit accrued eariier by way of grant of higher pay or revised pay, cannot be taken away as the same is vioiaiive of Article 14 and 16 of the Ccnstitution of india being arbitrary, unreasonable and expropriatory. 8. This Court, in Vidyadhar Tiwari Vs. State of Chhaifisgarh & others3 has heid that for the excess payment, if any, made to the petitiener! he was not at fauit and the ameunt received by him might have been used by adjusting himeeif accordingiy treating the same as his saiary. 9. Applying the well settled principles of law to the facts of the cas on hand and for the reasons mentioned hereinabove, this petition is allowed. The impugned order dated 17-6-2608 (Annexure — Pit), is hereby quashed. No order asto costs. Sd/- own Satish K. Agnihotri Jildge i j 1995 Supp (1) soc 2o ‘ AIR 2cm sc 43 3 2006 (1) MPHT 105 (CG) lK e G