H!GH COURT OF CHHATTISGARH AT BILASPUR Writ PeStion No. 6008 of 2QQ5 Petitioner Versus Respondsnts 1. 2. 3. 4. .5. 6. Smt. Champa Patnayak, D/o Shri R. P. Patnayak, Aged about 64 years, R/o Kslobihar, ward no. 26, Raigarh, Distt.- Raigarh (C.G.) State °of Chhattisgarh, Through - Secretary, Tribal Welfare Department, D.K.S. Bhawan, Raipur (C.G.) Assistant Commissioner, Aadivasi Vikas, Ralgarti, Distt. - Raigarh (C.G.) Joint Director, Treasury, Accounts and Pension, Bilaspur (C.G.) Collector, (Aadim Jaati Kaiyan Branch) Raigarh (C.G.) District Treasuries Offlcer, Raigarh. B!ock Education OfRcer, Tamnar, Distt.-Raigarh (C.G.) WR!T PETiTION UNDER ARTICLE 22S/227 OF THE CONSTITUTION SB: Hon'bie Shri Satish K. Agnihotri, J. Shri Sanjsy Patel, Advocate for the petitioner. Shri Satish Gupta, Deputy Govt. Advocate for the respondents. ORAL ORDER (Passed on this 12th day of fvlarch, 2008) 1. By this petition the pstitioner has chaltenged the vatidity of the order dated 20.5.2004 (Annexure P/5), passed by the Joint Director Treasury, Accounts & Pension, Bitaspur for recovery of a sum of Rs. 207825/- CTwo Lac, Ssven Thousand, Eight Hundred and Twenty Five). 2. The jndisputable facts, in nutehell, are that initially the petitioner was appointed as Lower Division Teacher (L.D.T.) on 24.7.1864 in Primary Schooi, Pathalgaon. Thereafter, she was transferred to various places and at the !ast wde order dated 23.11.2001 (Annexure P/1) on her application dated 5.10.2(M1, the petitioner was atlo'A'ed to take voluntary retirement w.e.f. 31.1.2(X)2, vrtien she was working on the post of Assistant Teacher at Giris Primar/ School, Tamnar. f£5^ !S 'VSg't.. 1 "si"as^ %, '\ s? '^. iVS!^" ^.^^ •sf 3. After retirement whsn the petitioner was not granted any retrial dues/gratuity ete. she made a representation (Annexure P/2), demanding retria! dues. The Assistant Commissioner, Aadivasi Vikas, Raigarti passed the order on 30.10.2002 (Annexure P/3) stating that the Joint Director, Treasury, Accounte & Pension, Biiaspur has directed for recovery of amount on the ground that the petitioner was having less educstiona! qusiffication. The amount is to be recovered from the year 1964. Therefore, approsdmateiy a sum of Rs. 2.10 Lacs is to be recovered from the amounts of ths petitioner admissible to her towards pension, gratuity and other retria! dues. Subsequently, D. O. Lettsr dated 3.12.2003 was written by the Biock Education Officer, Tamnar to the Joint Director, stating that tota! recovery against the petitioner was Rs. 2Q7S1S-. Out of this amount Rs. 109824/- and Rs. 42000/-, tota! to Rs. 151824/- has already been withheld. Thus, oniy' Rs. 56001/- is to be rscovered from the pension amount of the pefitioner. A copy of this letter was endorsed to the pstitioner. The petitioner submite that ths Btock Education OfRcer, Tamnar vide order dated 1.5.2TO3 (Annexure P/6) has wrongfy caiculated ths pension ofthe petitioner. 4. Thereafter, w'de order dated 20.5.2004 (Annexure P/5) the Joint Director Treasury, Accounte & Pension, Bilaspur has directed for recovery of a sum of Rs. 207825/-fTwo Lac, Seven Thousand, Eight Hundred and Tv/enty Five). Bemg aggrisved, the petitioner has fiied this petffion. 5. Lsarnsd counse! appearing for the petitioner wouid contend that there is - no fault on fte part of the petitioner and the amount is paid to her in accordance wth the psy scales, revissd and fb(ed by the respondents from tims to time. The respondsnts cannot rscover the amount, aiready paid to the petitioner after her retirement, thst too wfthout following Sie principles of natural justice. He further submite that the amount which E i i '^ •$''^'"3°s!»""*•&. has already been paid to the petitioner cannot be recovered from the retrial dues/gratuity/pension amount on the ground that ttie petitioner did not have sufficient educational qualification at the time of appointment as L.D.T. S. Learned counsel appearing for the pefflioner su&mite that once a right of a part'cular pay scate has been'granted to the petitioner in accordance with law, the same cannot be wfthdrawn, without aflbrding an opportunity of hearing. The petSioner had acquired the right to the fixed monthty pay scate as she was selected and appointed aflsr due procedure of law. She has taken voluntary retirement after a period of 20 years of her service. During the servics period the respondents did not object in regard to her educational qualification ete. 7. On the other hand learned counsel appearing for ttie respondents/State submtts that since the petitioner did not possess requisite qualification at the time of appointinent and her pay was drawn contrary to the provisions and on scrutiny it was found that the recovery is to be made, the same can be recovered Trom the retrial benefite/gratuify/pension amount of the petitioner, even on retirement without affording an opportunity of hearing. Leamed counssl relies on Rule 65 of the ChhatH^arh Civil Services O'ension) Rutes, 1976 Qbr short 'the Rutes, 1976') for the purpose of recovery and adjustment of Govemment dues. 8. Thc Supremc Court ia fhc casc of Sahife Rasa Vs. State of Haryana and others1 iu para 5 has hcld as uadcr;- ".c' <-?. AdimUedly ihe appellcml does rwt possess the required educational qualifioations. Under the drcumstcmces the appellcart wauld not be eniitled fo fhe relaxation. The Priwjtpcd erred in granting him the relwaxdon. Swwe the dafe of relaxation the appellant had been paid his salary on the revised scale. Hawever, it is nat on cuxxiunt of any rmsrepresen&ttion made by the appellant fhat the beneftt ofihe higher pay acale was given fo him but by wrong conairuction u- ^^ made by ifw Prindipalfor whidt ihe appellant camwt be held to be cdfatilt Under ihe circumstancss the anwunt pcdd iill dale fnay noi be reooveredfrom fhe appeHant...............' 9. This Court in fhc casc of Vidysdfear Tiwari Vs. State of Chhsittisgarh 86 otho's3 has hcld that for tfac cxccss paymcnt, if any, madc to the petitioncr, he was not at fault and the amount received by him taight have been used by adjustiDg himsetf accordingty treatmg the same as his salaiy. At this stage, directing recoveiy of fhe aUeged excess ainount from fhe pensionaiy beaefits ofthe petitioner wffl not be just and proper. 10. In view of the foregoing and as admitted by teamed counsel appearmg for bofh the parties, this petition stands disposed of ia terms of fhc ordcr passcd iu thc casc of VIdyadfcar Tiwari (Supra). The order dated 21.5.2004 (Amiexure P/5) rcgardmg rccoveiy ofRs. 207825/- '&'om. the retrial dues ofthe petitioner is quashed. The petitioner is entitled to fiiU pensionary beiiefits/gratuity ainount etc. wiftiout any deductioa. The aniouut, so deducted be paM to fhe petitioner with sunple iaterest. However, the respondents may take recourse to Rule 65 of the Rufcs, 1976, if so advised, iu accordaace with law aud basic principles ofnaturaljustice. No order as to costs. { 1995 Supp (1) S.C.C. 20'$, {2006 (lj M.P.H.T. 105 (C.G.p } Thakur