‘0.A. NO. %O kg ‘01? z'o'ogil E glcéNT-s; r. i. Apia: /’$‘3‘€ Ram Kumaf Sahuz S/o Dukhiram Sahu, aged 36 jiears, Working as Beén in the_ Oii‘lce bf I.C.D.S., Pamgarh,‘ _District the Hguse ‘of Manhafan Rathore, Jahj’gir, Madhya Pradeshu _ . ‘ V 7 Ram'Sanehi ‘Yada, S/o Baidev Yadav, aged n J 46 years, Working as Sadan Sewak, in'the Children’s, Home, Janjgir, R/o. Neta Chowlg - v Near Mangal 'Bhawan, Jahjgir, _Madhyé _ Pradesh, ’ Versus State of Madh'ya‘ Pradgsh,‘ 'V‘ThrQughL' Secretary; Department of‘Woman & Chi-1d Development, Vallabh Bhawan,’ Bhopal, Madnhya Pra’d’esh. Disnict Woman & Child:DeVeloVpment 7' ‘ OfEcer,‘District Janjgir Champa; Madhya Pradesh. _ I ' ’ Cn'lle/c‘tor,‘ Janjgir‘ Champa, Di‘strict; Janjgir ‘ Champa, Madhya Pradesh‘ ‘ ' / ‘ K ‘ RE§P01~IDENTS= 7‘ Janjgir, R/o. Paxhah Mohalla’, Talwapgra, in ‘ ' 1 1 ‘ ( [ \ HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (SQ No. 199:9 of2005 1§ET§m0NERs Ram Kumar Sahui‘& another. VERSUS RjEsi’ONDENTs § § State ofMadhya Pradesh & Others. § ' i *\ §Post for pronouncement ofJudgment . . on «22' *\ day ofOctober, 2009. r_——-———v———r————%W ; y ‘ J i ! \ ‘ HIGH / COURTOE CHHATTISGARH l AT ' BILASPUR > WRIT PETITION (S) No 1999 of 200 » ,, APPLICATION g UNDER TRIBUNAL SECTION 19 ACT OF THE ADMINISTRATIVE SB: Hon’ble Shri SatislT K. Ag‘liotri, J. Present Shrl V R Tlwan Advocate tor the petltloners \ I ' Shn Y S Thakur Deputy Advocate General for the 1" State/respondents J U D G M E N T +A (Passed on27day of October, 2009) 1. i The petmoners Impugn the order dated 31 Marc}; 2000 (Annexure A/l) whereby, the regular pay-scale granted to the petitioners have Been withdrawn V ‘ ’ ‘ 0 2. The Indtsputable facts 1n nutshell are that the petltloner No 1 was appomted on the post of Peon on 15 November 1991 and the petitioner No 2 was appomted on the post of Sadan Sewak on 18m October 1984 on datly wages basis The petltloners were granted regular pay scale of Rs. 759-12-870-15-945 we]? 25 January, 1996 and 15‘ of April, 1994 respectively, by order dated 25"“ January, 1996 — (Annexue Aft) Thereatter by order dated 31 March, 2000 (Annexnre A/l) the regular pay scale granted to the petrtroners was wrthdrawn on the ground that the regular pay scale and regulansatron granted earlier was contrary to the cucular dated 9 January 1990 Thus the ‘ pentroners challenge the vahdrty of the order dated 315‘ January, 2000 PETITIONERS , : Ram Kumar Sahu ? & another. Y _ QRESPONDENTS VERSUS f Co i m‘ umar thers v. State ofChhamsgarh‘& Others] which 2006. The issue’involved in the present 2006’ passed in SamKumw (supra). 4f; :_ Per contra, Shri Y‘S.Thakut, learned Deputy Advocate d Generaji appearing for the State/respondents would subnu't thai in light of the 7 utt n Sa K O was decided on 18m Januazy, case is squarely covered by the judgment and order dated 18m January, ; decision of theiSupreme Coun in A. Umarani v. Registrar, Cooperative i Societies & Othersz, and Secfetary, Staie ofKamataka v. Uma Deuii i l have heard learned counsel appearing for the parties, perused the {the petitioners are not entitled to regular pay scale. eleadings and documents appended thereto. \ I . 1 WP. No. 2123/2002 ‘ , :(2004)7sce112 (2006) awe 1 ‘ D 41. Regulan'sation 1i1rthe’rmore cannot give ho‘c_ in nature. ' permanence to an employee 3whose services are ad 45. No regulan'sation is, ithus, pelmissible in exercise ‘of‘the statutory péwer, conferred under Article 162 'of the Constitution if the appointment have been made in contravention of the statutory rules.” i ' ' 3 In case of Uma Devi (supra) also, it was observedthat any appointment dehors the constitutional scheme of employment is illegal and they are r not entitled to reinstatement, regularisation in the service. i In the present case, the services of the petitioners have not been; disengaged or the petitioners are claiming regularisation by this petition? and as such, the observations made by the Supreme Court inA. Umaranié and in Umadevi (supra), are not applicable. The facts of the cases arei not applicable to the facts of the present case. It is true that if thei petitioners are not permitted to continue, the petitioners cannot claimj .i appointment on the basis oftheir rights as they were appointed on daily Z ‘ wages basis. The issue involved in the case is that the petitioners were granted; regular pay scale way back and without affording any opportunity of V i hearing to the petitioners, the same has been withdrawn. In Sant Kumar l’ (supra), whiledealing’with the identical situation and facts ofthe case, i . this Court observed as under: “5. In the facts of the present case, the petitioners have been Wailing regular pay scales from various dates till the impugned order dated 3.8.2000 (Annexure P/l) was passed. The impugned order could not have been passed without issuing proper show causenotice or Without giving the'petitioners a hearing in the matter. Learned counsel for the respondent submits that the enquiry has already been initiated and pending enquiry the impugned orders have been passed. The impugled orders Visit with civil consequences. Since the impugied orders vvnvuw i L i 1 were passed before conclusion of enqulry and Without a&‘ordmg the petmonem a heanng, the I , impugwd orders are bad and mvahd ' ‘ ; 6 For the reasons stated above and 1n Vlew of the ‘ dec1s1on ofthe Supreme Cotml 1n case ofBhagwan ' ‘ V Shukla (supra) the petmon 1s allowed and the i I _ 1mpug1ed orders are quashed The petrtroners are entrtled to regular pay scaled accordmgly hem the ' date the same have been w1thdrawn b the ’ J 1mpugned ordem No order asto costs " The State Government took up the aforesard matter to the Supreme Court by way of Speclal Leave Petltlon The Supreme Court drsnussed the S LP (C) No 17122 of 2006 (State of Chhattlsgarh & Others v Sam Kumar & Others) upholdlng the decrswn passed by thrs Court ms SantKumar (supra) 0119 October 2006 With regard to the Issue ofrecoverv of amount paid to the employee the Hon ble Supreme Court, m Syed Abdul Qadzr and others v State of g Bzhar and others havmg consrdered all the dealsrons rendered earher _.\\ , 1n Sahib Ram v State ofHarvana Shyam Babu Verma v Umon of India Union oflndza v M Bhaskar V Gangaram v Dzrector Col ’BJAkkara $etd) v Govt offndta Pumshottam Lal Das v State of Bzhar Puryab National Bank v Manjeet Smgh and Blhar SEB v Byay I ‘h‘h.,»A..«.,.»...t Wwm,tt .r i p... t Bahadur observed as under “57 Tlus Court 1n a catena of dec1s1ons has granted rehef agamst recovery of \r excess ' L emoluments/allowances 1f (a) the excess amount was not paid ” on account of any nnsrepresentatlon or haud on the part of the the employer employee by and applymg (b) 1f such a wrong excess prmcrple payme of t calculatmg was made the by pay/allowance or on the basrs of a partrcular interpretation o ' rule/order whrch ls subsequently found to be erroneous 58 The rehef agamst recovery 1s granted by courts not H because of any nght m the e ployees but 1n equlty, \ l exercxsmg Jud1c1al drscretron to reheve the employee from the hardslnp that wrll be caused rfreeov ry 1s ordered But, tfm a ’ ‘ i grven case 1t 1s proved that the employee had knoledge , that 4 (2009) ascc 475 \ K‘ vEx , y f w i the payment received was in 'eXfcess of what was due or wrongly paid, or in case where; the error is detected or _ corrected within a short time ofvilrong payment, the matter being in the realm ofjudicial discietion, courts may, on the facts and circumstances of any particular case, order for recovery ofthe amount paid in excess. See Sahib Ram v. State afHaryana, Shyam Babu Verma v2 Union oflna'ia, Union of India v. M Bhaskar, K Gangamni v. Sfafe ofBihar, Punjab Bahaa’ur. Naiional Bank v. Manjeet Singh éand Bihar SEB .v. Bijay 59. Undoubtedly, the excess amount that has beenypaid to the appellant teachers was not because'of any misrepresentation or hand on their part and the appellants also had no nowledge that the amount that was being paid to them was ore than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-adidavit, admitted that it was a bona tide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for Which the appellants cannot beheld responsible. Rather, the whole coniimion was because of inaction, negligence and carelessness ofethe omcials concerned of the Government of . Bihar. Learned counsel appearing on behalf of the appellant teaehers submitted that majority of the beneficiaries have either retired 0r are on the verge of it. Keeping in View the , peculiar facts and‘circumstances of the case at hand and to void 'any‘hardship to the appellant teachers, we are of the iew that no recovery of the amount that has been paid in excess to the appellant teachersshould be made. " For the reasons stated hereinabove, the petition is allowed and the impugied order dated 315‘ March, 2000 (Annexur’e A/l) is quashed. The petitioners are entitled to regular pay scale, which was subsequently withdrawn by the impugied order. No order asto costs. l- Isa/-7... igh K. Agairmm t ‘ ‘udge i k m \ a v n