Shivaji Yadav vs State Of Chhattisgarh And Anr
2021 Latest Caselaw 2745 Chatt

                      1

                                               NAFR

     HIGH COURT OF CHHATTISGARH, BILASPUR

             WPS No.5823 of 2014

 Chintamani Ratde, S/o Late Shri Lakhan Lal
  Ratde Aged About 40 Years Asstt Grade III,
  Govt. Higher Secondary School, Reda, Block
  Dabhra, Distt Janjgir Champa, R/o Village
  Kharkena, Post Salhe, Via Chandrapur, Distt
  Janjgir Champa, Chhattisgarh

                                   ­­­­ Petitioner

                   Versus

1. State Of Chattisgarh Through The Secretary,
   Education    Department,    Mahanadi Bhawan,
   Mantralaya,    New   Raipur,   Distt Raipur,
   Chhattisgarh

2. District Education Officer,     Janjgir,   Distt
   Janjgir Champa, Chhattisgarh

                                   ­­­­ Respondents

WPS No.6154 of 2014

 Devkumar Narsingh S/o Dularsay Narsingh Aged About 43 Years Asstt Grade III, Govt. Higher Secondary School Pendaruwa, Block Dabhra, Distt Janjgir Champa, R/o Village And Post Barapipar, Distt Janjir Champa, Chhattisgarh

­­­­ Petitioner

Versus

1. State Of Chhattisgarh Through The Secretary, Education Department, Mahanadi Bhawan, Mantralaya, New Raipur, Distt Raipur, Chhattisgarh

2. District Education Officer, Janjgir, Distt Janjgir Champa, Chhattisgarh

­­­­ Respondents

WPS No.6155 of 2014

 Ramratan Sidar, S/o Late Shri Sukhiram Sidar, Aged About 39 Years, Assistant Grade III, Govt. Higher Secondary School Kirari Block Dabhra Distt. Janjgir Champa R/o Awas Plot Nagar Champa, Nagar Panchayat Dhbhra Distt. Janjgir Champa, Chhattisgarh

­­­­ Petitioner

Versus

1. State Of Chhattisgarh Through The Secretary, Education Department, Mahanadi Bhawan, New Raipur, Chhattisgarh

2. District Education Officer, Janjgir, Distt. Janjgir ­ Champa, Chhattisgarh

­­­­ Respondents

WPS No.6156 of 2014

 Shivaji Yadav, S/o Late Kangresh Ram Yadav, Aged About 34 Years, Assistant Grade III, Govt. Higher Secondary School, Pendruwa, Block Dabhra, Distt Janjgir Champa, Chhattisgarh

­­­­ Petitioner

Versus

1. State Of Chhattisgarh Through Secretary, Education Department, Mahanadi Bhawan, Mantralaya, New Raipur, Distt Raipur, Chhattisgarh

2. District Education Officer, Janjgir, Distt Janjgir Champa, Chhattisgarh

­­­­ Respondents

For Petitioners Mr. S. K. Kushwaha, Advocate For Respondent­State Mr. Siddharth Dubey, Dy. GA

Hon'ble Justice Shri Sanjay K. Agrawal

Order On Board

08/10/2021

1. Since common question of law and fact is

involved in the present batch of writ

petitions, they are being heard together and

are being disposed of by a common order.

2. The petitioners in this batch of writ

petitions are challenging the legality,

validity and the correctness of the order

dated 02.08.2014 (Annexure­P/3) passed by the

respondent No.2, whereby the excess amount

paid to the petitioners has been directed to

be recovered.

3. Mr. S. K. Kushwaha, learned counsel for the

petitioners, would submit that initially the

petitioners were appointed on the post of Peon

and thereafter they were promoted to the post

of AG­III vide order (Annexure­P/2) passed by

the respondent No.2 under the Chhattisgarh

Public Service (Promotion) Rules, 2003, but

subsequently vide order dated 02.08.2014

(Annexure­P/3) passed by the respondent No.2

itself, the order of promotion (Annexure­P/2)

has been cancelled/annulled and the recovery

of excess amount already paid to the

petitioners has been directed against the

petitioners without giving any opportunity of

hearing to the petitioners, which is in

violation of principle of natural justice. He

would further submit that no fraud or

misrepresentation has been played by the

petitioners and if the benefits have wrongly

been granted to them, the same cannot be

recovered and their case is covered by the law

laid down by the Supreme Court in the matter

of State of Punjab v. Rafiq Masih (White

Washer) and Others1. He would next submit that

the similar issue has been considered and

decided by this Court on 04.01.2016 in WPS

No.4290/2013 in between Ram Krishna Sahu vs

State of Chhattisgarh and others and other

connected mattes.

4. Mr. Dubey, learned State counsel, would

support the impugned order.

5. I have heard learned counsel for the parties,

considered their rival submissions made

1 (2015) 4 SCC 334

herein­above and went through the record with

utmost circumspection.

6. True it is that the petitioners were promoted

to the post of AG­III vide order (Annexure­

P/2) passed by the respondent No.2 under the

Chhattisgarh Public Service (Promotion) Rules,

2003 and subsequently vide order dated

02.08.2014 (Annexure­P/3) passed by the

respondent No.2 itself, the order of promotion

(Annexure­P/2) has been cancelled/annulled and

the recovery of excess amount already paid to

the petitioners has been directed against

them, but the fact remains that while passing

the order (Annexure­P/3), no opportunity of

hearing has been afforded to the petitioners,

which is in violation of principle of natural

justice. Even otherwise, there is no

allegation against the petitioners that they

have played any fraud or committed any

misrepresentation.

7. This Court in paras 7 to 10 of WPS

No.4290/2013 has held as under:­

"7. In Rafiq Masih's case (supra), Their Lordships of the Supreme Court

have considered the entire issue in a great detail and it has been held specifically that where payments have mistakenly been made by the employer, in excess of their entitlement, certain recoveries have been held to be impermissible in law. Para 18 of the report states as under:­

"18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service)

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee,

would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

8. In the above­stated judgment, Their Lordships of the Supreme Court have held that recovery from the employees belonging to Class­III and Class­IV services is impermissible in law where the payment has been made mistakenly by the employer in excess of entitlement.

9. The fact remains in the present cases that earlier petitioners filed writ petition which was allowed in terms of order in the matter of Ram Kumar Sahu (supra). Thereafter, State Government granted benefit of regular pay scale to the petitioners and it is not the case that the petitioners have played any fraud or made any misrepresentation in order to get payment of higher pay scale. The petitioners are Class­III employees and their case is covered by the decision rendered by the Supreme Court in the matter of Rafiq Masih (supra).

10. In view of the above, writ petitions are allowed and the order dated 18/09/2013 (Annexure P/2) relating to the present petitioners shall stand quashed. No order as to cost(s)."

8. In view of the above, all the writ petitions

are allowed and the impugned order dated

02.08.2014 (Annexure­P/3) in all the writ

petitions, so far as it relates to the present

petitioners, is hereby quashed. However, the

respondents are at liberty to proceed in

accordance with law. No order as to cost (s).

Sd/­ Sanjay K. Agrawal Judge Nirala