@CD W/ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION s No. Gig 2010 43* \ Lr© W PETITIONER D.R. Kurrey S/o. Mahesh Ram Kurrey, aged about : 63 years, R/o. Village & Post : Temar, Tahsil : Sakti, District : Janjgir- Champa (C.G.). VERSUS 1] ’/ State Of Chhattisgarh, Through : The Secretary, Aadim Jati Kalyan, Department, Government of Chhattisgarh, D.K.S. Bhawan, Raipur, District : Raipur (C.G.). The Assistant Commissioner, Tribal Development, RESPONDENTS Jashpur, District : Jashpur (C.G.). The Joint Director, Accounts Treasury & Pension, Ambikapur, District : Surguja (C.G.). The District Treasurer fficer, Jashpur, District : Jashpur (C.G.). The District Education Officer, Jashpur, District : Jashpur (C.G.). 6] The Bl‘ock Education Officer, Manora, District : Jashpur (C.G.). ’ O @ HIGH COURT {)F €HHATTI$€§ARH AT §ILASPUR (mm. Mr. Jumtica Prmlnkar mwaker) w.P. (S) No. 62w of 20110 PETITIONER D.R.Kurrey VERSUS RESPONDENTS State ofChhattisgarh & Others ;/ Shri Pushpendra Kumar Patel, counsel for the petitioner, Shri N. Naha Rwy, caunsei fer the State. WRIT PETITION UN§ER ARTICL§ 226 OF THE CGNS’FETUTIGN 6F EN§I Q R D E R (i9.6§.26i1) \K 1. The chaiienge in the present writ petitian is to the ietter dated 02/01i10 (Annexure P4) and letter dated GSIOMO (Annexure P-2} by which, the recovery of Rs. 27,365i- has been sought from the petitioner and subsequentiy‘ the said recovery has been made fmm him. 2. Facts of the case in briefs are that the petitioner had retired from the post of Head Master at Government Middle $chool, Asta, Block— Manora, District- Jashpur (3G) on 31/05/09, after rendering service for about 39 years. However, by impugned orders dated ()2l01/10 and 05/01l10 recovery of Rs. 27,365 paid to the petitioner on account of wrong pay fixation is sought to be made from the arrears of Sixth Pay Commission of the petitioner. Counsel for the petitioner submits that the orders impugned have been issued against the petitioner without affording any opportunity of hearing. According to him, it isfnot a case of fraud piayed or 3y / misrepresentation made by the petitioner in receiving the said amount and that being so no recovery can be made from him. @ 4. Repwing t0 this argument: it has been argued by the State counsel that the excess amount was wrongly paid to the petitioner and therefore, the Government ha3 every right to recover the same. He however does not dispute the fact that before passing the impugned order no opportunity of hearing was given to the petitioney. 5. in the case of Sahib Ram Vs. state of Harvana & Others-1995 Supp (1) SCC 18. held in para 5 as under:- “5. Admittediy the appeliant does not possess the requrred educationai quarificetions. Under the circumstances the appeiiant wouid not be entitied to the reiaxation. The Prtnoipai erred in granting him the relaxation. $ince the date of reiaxation the appeiiant had been paid his saiarv on the revised scaie. However, it is not on aocount of any misrepresentation made by the appeiiant that the benefit of the higher pay ecaie was given to him but by wrong construction made by the Principai for which the appeiiant cannot be held to be at fault. Under the circumstances, the amount paid tilt date may not be recovered from the appeliant". Further, in the case of Vidyadhar Tiwari Vs. State of (1G. and others reported in 2W6l1)MPHT 105 it has been held that for the excess payment if any, made to the petitioner, when he was not at fault and the amount received by him might have been used by adiusting himself accordingly treating the same as his salary, at this stage, direction for recovery of the alleged excess amount from the pensionary benefits of the petitioner will not be just and proper. 6. Perusai of the record reveais that the impugned orders have been passed without affording any opportunity to the petitioner. Thus by no stretch of imagination the petitioner can be said to be at fault and therefore the order directing recovery of the excess amount paid to the petitioner is not legaiiy permissible. Admittedly, it is not the case of the respondents that at any point of time, any misrepresentation was made or fraud played by the petitioner in receiving the said excess amount. 7. Counsel for the petitioner pointed out that the arrears of Sixth Pay Commiosion was given to the petitioner only after deducting the entire amount of Rs. 27,365i— which may be directed to be refunded along-with 6% interest to the petitioner within four months from the date of receipt of copy of this order. 8. Admittedly, the amount which has been paid to the petitioner was towards the salary of the post of Head Master and the petitioner was not at fault nor has he, misrepresented in any manner whatsoever or played fraud with the respondents in so doing. in this View of the matter, the orders impugned are set aside. 9‘ In the reeui’i, the petition is allowed and the erders impugned are set aeide. Amount of Rs. 27,365i-recovered from the petitioner is directed to be refunded to him within a period of four months from the date of receipt of copy of this order, with interest at the rate of 6 pemem per annum. Sd/- Pritinker Diwaker Judge