;^C5 BEFORf; THE HON'BLE HIGH COURT OF CHHATnSGARH AT I,;'. BILASPUR. ^s^ &-)t" ...•••"" -.••••"" .^'".^''''^h.^" •• ^^y^" ^ WP[S]No..5Sl^../09 Indram Ram, S/o Shri Chingra Ram, Aged about 49 years, Quarter No.H-4, Irrlgatibri CQldny, Premabag Baikuntbpur, Dist. Korea, CGState. Vs 1. State of C.G. Through: Secret&ry, Water Resources Department, Govt. of CG, ] DKS Bhawan; Raipur. . 2. Engineer-in-Chief, Water Resources Deparfment, Raipur CQ State. 3. Chief Engineer, ' Water Respurces Department, Bilaspur. CGState. WRITPETITIONUNDERARTICLE2260FTHECONSTITUTIONQF INDIA FORISSUANCEOF APPROPRLVTE WRITSFS1 ORDER[S1 | DIRBCnONfSI.ETC. •»-;,. HIGH_COURT QF CHHATTISGARH : BILASPUR Writ Petition (S) No. 3663 of 2009 Petitioner Rainchandra Kurup . Versus Respondents State of C.G. 85 others And W.P.(S) Nos. 3849, 3298, 3302, 3303,3305,3306,3339, 3364,3365,3369,3371 and 3426 of2009. AF/< Post for Judgment 85 Order on this S^ &ay of November, 2009 Sd/- SatishK.Agnihotri Judge HIGH COURT OF CHHAmSGARH : BILASPUR Writ Petition (S) No. 3663 of 2009 Petitioner Ramchandra Kurup Versus Respondents State of C.G. fiE'others And W.P.(S) Nos. 3849, 3298, 3302, 3303,3305,3306,3339,3364, 3365, 3369, 3371 and 3426 of 2009. WRTT PETITION UNDER ARTICLE 226 OF THE CONSTITUTIONJOFINDIA (SB: HonTsle Shri Satish K. Agnihotri J.) Shri K. R. Nair, Advocate for the petitioners. Shri N. N. Roy, Panel Lawyer for the respondents/State. JUDOEMNT & ORDER (Passed on this 32,"ciay of November, 2009) Challenge in this batah of petitions namely W.P.(S) Nos. 3849, 3298, 3302, 3303, 3305, 3306, 3339, 3364, 3365, 3369, 3371, 3426 and 3663 of 2009 is to fhe order dated 8.6.2009 (Annexure P/l), whereby the representations of the petitioners have been rejected and the order dated 8.6.2009 (Annexure P/16 in W.P.(S) No. 3302/2009), whereby the orders, granting benefit of increments, in respect ofAssistant Grade-III, -who have not passed Hindi Tjrpewriting Exaraination, have been cancelled. Indisputable facts, in nutshell, in this batch of writ petitions {W.P.(S) Nos. 3849, 3298, 3302, 3303, 3305, 3306, 3339, 3364, 3365, 3369, 3371, 3426 and 3663 of 2009) are that the petitioners were appointed on the post of Assistant Grade III subject to the condition that they would be entitled to annual increments only after passing of the. Hindi Typewriting test. Subsequently, the petitioners passed the Hindi Typewriting test — '!-- and subraitted certificates, accordingly they were alloTived the annual increraents from the date of submission of the certificate, not from fhe date of his appointment. Some of the similarly situated employees moved the State Administrative Tribunal (for short ^he Tribunal^, according to the petitioners, in the matter of Malayadeen Vernua and others Vs. State ofM.P. (1991 MPST 379) the Tribunal passed the order that the applicants are entitled for grant of annual increments from the date of their initial appointment. In O.A.No. 1981/99 (B. L. Goyal Vs. State of M.P. & others), the Tribunal, by order dated 29.10.1999, directed the respondents/State to exaraine the case of the applicant in the light of the ratio of the case of Malyadeen Vernia and if on such examination the case of the applicant is found to be similar, the benefit of grant of increments be extended to them. Pursuant to the order dated 29.10.1999, passed in B. L. Goyal (supra), the Engineer in Chief, Water Resources Department, directed the Chief Engineers by order dated 12.12.2000 that in the light of the decision of the Tribunal all the siinilarly situated Assistant Grade —III,who have passed the Hindi Typewriting test \vould be entitled to annual increments after one years of their initial appointment. Thereafter, the petitioners iiled writ petitions before this Court ^which vyere disposed of reserving liberty to the petitioners to file a representation before the concerned authorities and fhe concemed authorities were directed to consider and decide the representation on its own merits, in accordance with law. J - T. 6. In the meantime, by orders dated 27.11.2006, 23.7.2008 and 15.2.2007, respectively, the petitioners vyere ailowed benefit of annual increment after one year of their initial date of appointment. 7. The petitioners have filed these writ petitions, belng aggrieved by the action of the respondent/authority, as their representations have been rejected by the itnpugned order dated 8.6.2009 (Annexure P/l). On the same day, other impugned order dated 8.6.2009 (Annexure P/16 in W.P.(S) No. 3302/2009) was passed, whereunder and whereby the orders dated 27.11.2006, 23.7.2008 and 15.2.2007, granting benefit of increnients to the petitioners vrere cancelled. 8. Learned counsel appearing for the petitioners submits that the respondents cannot take a stand, contraiy to the judicial dictum, as afore-stated. The petitioners are siniilarly situated employees and they are entitled to the benefit granted in the matter of Malyadeen Vernia (supra), B. L. Goyal (supra) and several others. Learned counsel further submits that there is no fault on the part of the petitioners. They have not made ahy inisrepresentation and the annual increnients have been granted to them in accordance •with the orders passed by the competent authority, that too in corapliance of fhe judicial pronouncement by the State Administrative Tribunal in the matters of similarly situated emiployees. 9. The impugned order dated 8.6.2009, withdrawing benefit of annual increraents, granted earlier, on the basis of the adniinistrative instructions is bad in law, illegal and contrary to the judicial pronouncements. The reason assigned for recovery is f -^ o not sustainable, as there -was no fault on the part of the petitioners. The respondents cannot recover the amount, already paid to the petitioners, for no fault of the ertiployees, who has not raade any misrepresentation or inisled to the employer. 10. Learned counsel appearing for the respondents/State subnnits that the State Government has extended the benefit of annual increments only to those persons who approached the Tribunal/Court. The Tribunal has not passed a general order to grant benefit to all the similarly situated persons. Thus, the impugned orders are just and proper. 11. Having heard learned counsel appearing for the parties and having perused fhe pleadin.gs and documents appended thereto, the question arises for consideration before this Court is, asto \vhether once beneflt of annual increments was granted to the petitioners, for no fault of theirs, may be by judicial order, can be wifhdrscwn subsequently by executive instructions. The Supreme Court while considering the identical issue observed that a judicial decision cannot be directly overruled or reversed, even by the legislature. The executive instructions, in no way, can reverse or override a judicial decision. In the present case, the petitioners were granted beneiit pursuant to the orders passed by the Tribunal. 12. It is well settled that even legislature cannot directly overrule, reverse or override the judicial pronouncements. In the present case the State Government by statutory instructions has attempted to set at naught the judicial order passed by the Tribunal in Malyadeen Vernia (supra), B. L. Goyal (supra). 4 6- 13. There is no dispute that the orders passed by the Tribunal have attained finality, as no challenge was made by the respondent- authorities thereafter. 14. The Suprerae Court in A. Manjula Bhashini and others Vs. Managing Director, Andhra Pradesh Woinen's Cooperative Finance Corporation Litnited and another1 has held as under: "68. It is also •well settled that the legislature cannot by bare declaration, without anything more, directly overrule, reverse or override a judicial decision. How^ever it can, in exercise of the plenaiy powers conferred upon it by Articles 245 and 246 of the Constitution, render a judicial decision ineffective by enacting a valid law fundamentally altering or changing the conditions on which such a decision is based. Such lavv^ can also be given retrospective effect with a deeming date or with effect from a pardcular date. The question vfhether the legislature possesses the po\ver to enact law apparently affecting pre-existing judgment or amend the existing law \vhich has already been interpreted by the Court in a particular manner, has been considered in sever'al cases. 15. The respondent-authorities have not follo-cved the principles of natural justice and the irapugned action has been taken without affording an opportunity of hearing to the petitioners. The practice of passing order, involving civil consequences, vyithout shovy cause notice or nrithout affording an opportunity, is conderaned. 16. The question of nrithdravyal of benefits, iffithout affording an opportunity of hearing is no longer res integra. The Supreme Court in the matter of Sahib Rain Vs. State of Haryana and others2 , in para 5 held, as under: "5. Ho-wever, it is not on account of any misrepresentation made by the appellant that the benefit of higher pay scale was ' (2009) 8 SCC 431 2 { 1995 Supp (l) SCC 20} given to him but by w^rong 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." 17. The Supreme Court in the matter of P. Tulsldas and others Vs. Governnient of A.P. and otbers3, observed that the benefit accrued earlier by way of grant of higher pay or revised pay, cannot be taken away as the sarae is violative of Article 14 and 16 of fhe Constitution of India being arbitrary, unreasonable and expropriatory. 18. In an identical issue, asto whether recovery of excess payment for no fault of the employee can be made without following the principles of natural justice, the Suprerae Court in Syed Abdul Qadir and others vs. State of Bihar and others4, having considered all the aspects of the matter and the decisions rendered by the Supreme Court in the past, obserped as under: "57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any raisrepresentation or fraud on Che part of the employee, and (b) if such excess payment was raade by the employer by applying a wrong principle for calculating the.pay/allowance or on the basis of a particular interpretation of rule/order, -wtiich is subsequently found to be erroneous. 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the eniployees frora the hardship that will be caused if recovery is ordered. But, tf in a given case, it is proved that the eniployee had knoivledge that the payraent received vras in excess of vfhat -was due or wrongly paid, or in cases vfhere the error is detected or corrected within a short time of wrong payment, the inatter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar, V. Gangaram v. Director, Col. B.J.Akkara (Retd.) v. Govt. of India, {A.I.R. 2003 SC 43} (2009) 3 SCC 475 '^f ^- Purshottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh Eind Bihar SEB v. Bijay Bhadur." 19. A common thread running into fhe • above decisions of the Supreme Court is that, for recovery of excess payment of emoluments/allo^vances, there are three conditions vyherein the excess payment may be recovered, namely (i) excess payment vras made on account of misrepresentation or fraud on the part of the employee, (ii) the employee had kno^vledge that the payment received was in excess, and (iii) the error ^vas corrected within a short span of time of ^vrong payment. In the case on hand, the afore-stated three conditions are not available to the employer to pass the impugned orders dated 8.6.2009 (Annexure P/16 in W.P.(S) No. 3302/2009). 20. In view of the foregoing, fhe imipugned orders dated 8.6.2009 (Annexure P/l), \ffhereby the representations of the petitioners have been cancelled as vyell as the orders of recovery dated 8.6.2009 (Annexure P/16 in W.P.(S) No. 3302/2009), in respect of the petitioners are quashed. No recovery of payment of annual increnients to fhe petitioners can be made pursuant to the impugned orders. If the araount has already been recovered, fhe petitioners are entitled to the said amount vfith interest at the rate of 6% per annum. No order asto costs. 21. The petitions are allowred to the above extent. No order asto costs. Thakur Sd/- Satish K. Agnihotri Judge T^