c r,y<^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.l WRIT PETITION N0. '2,2-1 2_ /2004 PETITIONER Vidyadhar Tiwari, aged about 53 years, son of Late Teerath Raj Tiwari, retired Principal, Government Hr. Secondary, School) Gharghora, resident of Vidya Bhavan Chakradhar Nagar, Banglapara, Raigarh (Chhattisgarh) s.^isss- ^•^^s^s-- '^^^-^^^ p.ft.' piese iate4- RESPONDENTS VERSUS •^Scef i! 4. The State of Chhattisgarh, through : the Secretary, Department of Tribal Welfare, Dau Kalyan Singh Bhawan, Raipur (C.G.) The Commissioner, Tribal Welfare, D.K.S. Bhawan, Raipur (Chhattisgarh) The Joint Director, Accounts Treasury and Pension, Bilaspur (Chhattisgarh) The Assistant Director,Tribal Development, Raigarh (C.G.) WRIT-PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT OR WRITS, ORDER OR ORDERS, DIRECTION OR DIRECTIONS UNDER THE FACTS AND CIRCUMSTANCES OFTHE CASE. T s AF^ Single Bench: Hon'ble Shri Satish K. Agnihotri, J. Vidyadhar Tiwari Versus The State of Chhattisgarh & others POST FOR ORDERS ON / S ^OVEMBER. 2005 Sd/- Satfsh K. Agnihotri Judge l'7'l 1-2005 HIGH COURT OF CUHATnseMtH.BIUSniR SinateBench:- Hon'MeShri StiBah K. Ain^iotri. •). Writ PetWon No.3212 01200* Vklyadhar Tiwari Vs TheStateofChhata»gart»&other» Present:- Ifllr.SarrtoshKumarTiwari.laa-nedcounsalforthaptfBoner. Mr. Pankaj Shrivastava, teamed Panal Lawyer, for the Stata/ respondente. ORDER t_niaoos) The present petifion flted under Articte 226 <rf th«Cwisfitution of tndia impugns the orders dated 13.03.2003 and 28.(K.2003 (Annexwe-P/1 fifed coNecCvely) whereby a sum of Rs.M^17/- tos been directed to be deducted from the rrtlral dues (rfthe peBUoner. 2. Undisputed facts, in the presentcase, ara ttat the pdUoner was appointed as Assi^ant Teacher in the Department of TrBSxrf Dewlopment on 30.07.1961. Subsequen^, he wss premotBd to the pod of Laeturer and ttiereafter to ttie post <rf Prindpat. On 31.05.20(K, the prtiBoner wMe wortdng as Prindpal reUred on attaintng the age of superannuaUon from the Govemment Higher Secondary School, Gharghora, Disfrtet Ralgarh. The petitfonw recdved communicatfons dated 13.03.2003 and28.02^0(»(AnnexiB»-P/1 coBecdvefy) whereby it was dlrected that a sum of Rs.98,917/- ba deducted from Ihe pensfonary bendils sdtlad to tte tune of Rs.2,96,670/-. ....2, 3. The petittoner has flted thls peUfion praying .that tt»e impugned orders (Annexure -P/1 coltecBvely) deducffng a sum of Ra.98,917/- from the pensionary bensUts of the petiBoner are iBegal, arbih'ary and unreasonabte. 4. The respondents in (heir rrtum submitted that the peUtioner was (aid excess amount w.e.f. 30.01.1986 by mi^ake, as siich fte hnpugned onters for deduetton of Rs.98,917/- paidas excess amount was justand tegat. • 5. Mr. Santosh Kumar Thrari, leamed counsel appearing for the petlUoner submitted that the pefltloner had not overdrawn any ®H»SSamount and whatever amount as paid by the respondents, fce peUUoner had accepted it as his satary right from 30.01.1986 UH the date of his reUrement ije. 31.05^2002. Leamed counsel further submitted that ff there was any excess amount ttiat was not made on account of the fault commUtBd by tte petitfoner. as such the respondents were not enBUed to recover the same. It was next submltted in the rejoinder that the pefltfoner was promoted as Lecturer w.e.f. 26.09.1966 on the pay-asate of Rs.250-480/- and tte same was revlsed later wi as Rs.350«XV- w.e.f.01.01.1972 and thereaftBr again revised as lte.925 - 15(XV-. The p^Uonw was promoted as Priniapal on 30.01.1986 inthe pay-wate of Rs.1000 - 1920/-. Lsamed counsel further submittod that the cakailation <rf the responderts to tt» effect that the petitionar ought to have been paM Rs.3,675/- per month as Principalwas not correct. 6. As per tt»e Malhya Pradesh Revi^on el Pay Rutes, 1987. whteh were made ^tecUva from 01.01.1986, the pay-scato of tha pelMonw as Lecturw was fixed at fhe scate <rf Rs.1540 - 2740/-. Therealter, as per the Masffiya Practesh Revision <rf Pay Rules, 1990, tte pay-scate <rfthe p^tfonw w Lecturer was lixed at Rs.1640 - 290(V". The pay-scate of the peBUonw as frincipat was ftxed at lRs.1820 - 33001- and Bierealter immediately it was re-ftced at Vw scde of ^3) 3^., Rs.2375 - 4175/-. As per the Madhya Pradesh Revision ofPay Rules, 19^, the petitioner's pay-scale was fixed at Rs.8000 - 13,5tW-. All the above stated fbations were recorded In Uie servtee book of the petitioner. Leamed counsel for V petitioner submUted that since the peUtioner's pay-scale was fixed by the respondents and the peUUoner had been paid ttie pay fixation for about16 years i.e. till he retired on 31.05.2002, the action of the respondents for recovering a sum of Rs.98,917/- from the pensionary benefits of &e petiUoner was illegat, . • unreasonabte and discriminatory. 7. Mr. Pantaij Shr'ivastava, leamed wunsel appearing for the respondents, on the contrary, submitted that it was admitted that the pay-scale was fixed by the respondents and retevant entries as stated by the petifioner had also been made In the service book of the petitioner. Leamed counsel submitted fliat the payment made on the basis of fixaUon of pay-scale was excessive and it was done inadvertently. Leamed counsel turther submitted ftat the peUtioner should not get advantage of excess payment made inadvertently by the respondents. 8. Having heard the rival contentions of both the parties wherein all the facts are admitted except that the payment made was excessive and the same was done inadvertentty by the officers. The petiUoner cannot be faulted ftor U»excess payment, if any, On perusal of several ctocuments i.e. ^Aadhya Pradesh Rwiston of Pay Rules, 1987, lUladhya Pradesh Revision of Pay Rutes, 1990, Madhya Pradesh Revision of Pay Rules, 19M and thereafter the entries made in the service book of the petiUoner, tt is clear that no excess payment has been made. The respondents had not submitted any calculations in support of their contention that the excess payment was made. 9. The Supreme Court in the case of Shvam Babu Verma and othcrs Vs. Union of India & others - (1994) 2 S.C.C. 621, has held that the employees who ^. A have receh/ed higher scate due to no tault of theire, it shall onty be just and proper not to recover any excess amount already paid to them. In that case,Uie petiConers were given higher pay-scale w.e.f. 01.01.1973, although only after a period of 10 years they became enUtted to Ihe higher pay-scale, but as they received higher scate since 1973, and the scate was reduced in ttie year 1M4 w.e.f.01.01.1973. 10. Agatn, the Supreme Coui* in the case of Sahib Ram Vs. State of Hanana and others •(1995) SUDD. (11 SCC 18. held in para 5 as under: " 5. Admittedly the appellant ctoes not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to e relaxaton. The Principal erred in granting him the relaxation. Since Bie date of relaxatk?n the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentaUon made by the appellant ttiat the benefit of the higher pay scale was gjven to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant." 11. In anottier case, the Supreme Court in the case of V. Ganaaram Vs. Reaional Joint Director and olfters • (1997) 6 S.C.C. 139. wherein the question of payment (rf increments on the basis of two qualifications namely MA and M.Ed. was involved and the petitioner was granted 4 increments for acquiring M.A. artd M.Ed. qualificaUons, however, the petitioner was entitled to 2 increments -for acquiring the said qualifications. The Supreme Court was of the view that excess amount was liable to be recovered. In the above stated case, earlier decisions in the cases of Shvam Babu Verma (Supral and Sahib Ram (Supra) were not referred to. 12. !n the present case, the respondents have not established as to hcw the excess payment was made to the petitioner from 30.01.1986 till Uie reCrement of tte petfUoner, rather the petitioner had proved on the basis <tf various pay revision rules i.e. ^4adhya Pradesh Revision of Pay Rules, 1987, Madhya Pradesh Revision of F»ayRules, 1990, Madhya Pradesh Revision of Pay Rules, 1998 Uiat no excess payment was made to hfm. Even otherwise, for the excess payment, if any, made to the prttfioner, he was not al fault and the amount • received by him might have been used by adju^lng himself accordingly treating the same as his salary. At this stage, direcUng recovery of the atl^ed excess amount from fte penstonary benefits of the peUUoner vwll not be just and proper. 13. In view of the above statsd facts and the dectsions of the Supreme Court, fte petiUon is altowed and the Impugned orders datsd 13.03.2003 and 28.02.2003 (Ann©(ure-P/1 filed collecUvety) directing recovery of fte amount altegedly paid to the petitioner in excess, are hereby quashed. The peUUoner is entitled to full penstonary beneflts without any deducUon. No order as to costs. Sd/- satish K. Agnihotri Judge f6-11.260S; ^