C^ l^-^. ^,inile B@n.&h IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. (Sl N0. ^lrSlk /2010 PETITIONER ^.Manohar Sai Rathiya S/o Dharam <^ ^°^ ^'s ^^y7 .-^<^y ^y1./' ^ RESPONDENTS ^ Singh Rathiya, aged about 46years, Occupation Service, posted as ^ Upper Division Teacher, Middle School, Sithara, Block Dharanjaigarh, Raigarh, District Raigarh, C.G. VERSUS 1. The State of Chhattisgarh through the Secretary Tribal welfare Department, DKS Bhawan RaipurC.G. 2. The Joint Director, Treasury, Accounts and Pension, Bilaspur Distnct Bilaspur C.G. 3. Block Education Officer, Dharamjaigarh, District Raigarh, C.G. WRIT_PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUE OF AN APPROPRIATE WRIT IN THE NATURE OF MANDAMUS/CERTIORARI ETC. OR DIRECTION/ORDERIN THE LIKE NATU^E_jTC HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.2237 OF 2010 (Writ Petition underArticles 226 of the Constitution of India) Single Bench: Hon'ble Shri Manindra Mohan Shrivastava, J. Present: - Shri Rakesh Pandey, Advocate for the petitioner. Shri N. N. Roy, Panel Lawyerforthe State. ORDER (ORAL) (Passed on this 04th day of July, 2011) 1. This petition has been filed by the petitioner aggrieved by order dated 23/25-11-2009(Annexure P-1) passed by the respondent No.3, whereby recovery of Rs.57,048/- has been made against the petitioner. 2. Learned counsel appearing for the petitioner submits that the petitioner was appointed as Assistant Teacher on 21-04-1987, and then he was promoted to the post of Lecturer vide order dated 25-02-2009. The petitioner had obtained diploma in Education in the year 2000, on his own expenses, after seeking permission from the department, which was followed by permission granted to appear in the D. Ed. 2nd year examination, in which, he has appeared and passed. A circular was issued by the State Government on 12-03-2007 (Annexure P-6) directing that the benefit of two advance increments would be admissible to those teachers, who appointed prior to 16-06-1993 and passed B. Ed/B.T.I. examination, after obtaining permission of the department, during service, on their own expenses. The petitioner, therefore, sought benefit of those policy and after examination of petitioner's case, vide order dated 10-05-2007(Annexure P-7), he was required to produce necessary documents, which were submitted by the petitioner and after satisfaction with regard to petitioner's entitlement, the benefit of two advance incFements were granted to the petitioner. It is further submitted that the petitioner hatl not submitted any false information. After granting benefit of two advance increments, the petitioner's pay was fixed in the proper stage and he was paid his salary on the basis of such fixation. Now, the respondents have started \ interpreting the circular dated 12-03-2007 in a different manner PETITIONER Manohar Sai Rathiya Versus RESPONDENTS State of Chhattisgarh & Others 1" .-^^ y ^ 2-— (0 resulting in issuance of impugned order of recovery. Learned counsel for the petitioner at the first place submitted that under the circular dated 12-03-2007, the petitioner is entitled to benefit of two advance increme.nts. Alternative submission of learned counsel for the petitioner is that in any case, if it is found that the petitioner was not entitled under the circular, no recovery could be made under any circumstances, because it is not a case of fraud or misrepresentation on the part of the petitioner. In support of his contention, learned counsel for the petitioner placed reliance on the decision of the Supreme Court in the case of Sahib Ram v. State of Haryana and others, 1995 Supp (1) SCC 20 and Syed Abdul Qadir & others v. State ofBihar & Others, (2009) 3 SCC 475. On the other hand, learned counsel for the respondents submitted that the petitioner had obtained Diploma in Education in the year 2000, whereas circular dated 12-03-2007 allowed benefit of two advance increments to those, who have obtained B. Ed/B.T.I. degree between the period from 23-10-1964 to 01-03-1999. Learned counsel for the respondents submitted that initially, the benefit of two advance increments was extended in respect of number of employees, not in respect of those, who have appointed after 01-03-1999. As soon as this fact was brought to the notice of the competent authority, the order of recovery was made. Though, it has been stated by the respondents on affidavit that the benefit is available only to limited number of employees, who were appointed between the period from 23-10-1964 to 01-03-1999 and obtained B.Ed/B.T.I. degree certificate during service on their own expenses, circular dated 12-03-2007 (Annexure P-6) does not disclose the period from 23-10-1964 to 01-03-1999 with regard to appointment or requirement of B. Ed/B.T.I. degree certificate during that period as a eligibility condition for grant of benefit of two advance increments. Moreover, the petitioner did not make any misrepresentation nor committed any fraud. The petitioner had claimed benefit on the basis of the certificate of D. Ed. possessed by him, which he had obtained after due permission from the department, on his own expenses. Therefore, it appears that the petitioner had disclosed his credentials and claimed benefit on the basis of the D. Ed. certificate obtained by him andthe ^ •3> competent authority in his own wisdom decided to grant two advance increments to the petitioner. In these circumstances, having extended the benefit of two advance increments and paid salary to the petitioner for allthese years, it wou.ld be rather inequitable now to recover the huge amount from the petitioner, who is an Assistant Teacher. In the absence of any fraud or misrepresentation made by the petitioner, even assuming that excess payment was made; it would not be just and proper to recover such huge amount from the petitioner. From the date, the said defect has been revealed; the respondents may not grant further benefit. In view of above discussion, impugned order of recovery dated 23/25-- 11-2009 is declared illegal and hereby set aside. The amount of recovery, if already recovered from the salary ofthe petitioner, shall be refunded to him. The petition is accordingly allowed to the extent and in the manner indicated above. There shall be no order as to costs. ___ ManindraM.hanShriv^avo Judge ^ Tumane