W. P. fS)No. ^3 v. RESPONOENTS

Singte Bench: Hon'ble Shri Manindra Mohan Shrivastava. .1, W.P.fSi No.2331/12 PETiTJONER Ramjit Sai RESPONDENTS State of C.G. and others Versus Present: - Ms. Sudha Agrawal, counsel for the petitioner/s. ; Shri Gary Mukhopadhyaya, Panel Lawyer fcythe Stete. QRAi.OfWER »th (Passed on 26'" ofAprtl, 2013) Heard.

2. With the consent of the parties, the matter is heard flnally. By this petition under Articte 226 of the Constitution of India, the petitioner has assaiied iegafity and valldfty of recovery letter dated 15/02/12 (Annexure P/1) issued by respondent No.2. The petitioner has further prayed for direction to respondent No.1 to decide the pension case forthwith within the stipulated time.

3. The relevant factual matrix necessary for decision of ie petition are that the petitioner was initially appointedas Assistant Teacher on 17/03/64. Upon attaining the age of superannuation, the petitioner retired w.e.f. 31/03/10 after rendering service of about 36 years. After almost hwo years of his retirement, the impugned letter has been issued on 15/02/12 •ssa.3i^, ^, '•^wsss^ z^ directing the petitioner to deposit an amount of Rs.2,24,899 (Annexure P/1) stating that amount is found to be paid in excess between the period from 01/01/86to 31/03/10 upon scrutiny of the service book. s

4. Submission of leamed counsel for the petittoner is that the petitioner has been subjected to great hardship as the petitioner was a tow paid employee and on the basis of pay fixation done from time to time by the respondent authorities, salary was paid to him. Further submission is that the petitloner is not guilty of any fraud or misrepresentation. Throughout his service, he was getting pay in various pay scales which were revised from time to time by respondents according to their own understanding and computation of pay and pay scale. The petitioner had no b^is to believe ihat whatever is being paid to him is in excess or that he is not entitted to those payments. On a bonafide belief af proper pay fixatlon, the petitioner kept on receiving saiary as an Assistant Teacher ever since his appointment in the year 1964 but after two years of his retirement, all of a sudden, the authorities have again undertaken the exeicise of the pay fixation that too from the year 1986. Therefore, present is a case of excepiional nature as the petitioner is a low ^id Assistant Teacher and whatever, he could get in the shape of gratuity,leave encashment etc., all would be adjusted against the so called recovery of huge amount of Rs.2,24,899/-. It is further submitted that actioh of ihe respondents is without affording any opportunity of hearing. <R ^^^^^s. '^s3^^^. ^•>3? '^.sry ^.- . ff ..r s"

5. On the other hand, learned counsel for-the resj»ndent submitted that the petitioner was entitied to pay of Rs.1,150/'- at the time of pay flxation in the year 1986 but tocause of mistake, instead of fixation of his pay as Rs.1,150/- w.e.f. 01/01/86, it was fixed at Rs.1,200/-. Because of this mistake, the petitioner enjoyed higher salary, to which he was not entitied and on account of thfs from time to time, final pay flxation took place, the petitioner's pay was being fixed at higher stage of re\rised pay scale and in this manner, right from the year 1986 till the date of his retirement titi 2010, he was getting hlgher pay. Therefore, in these circumstances, recovery is just and proper. He further submits that as per rules 57 and 59 of the M.P./C.G. Financial Code Volume I, every excess 1 over payment made to a public servant is liable to be recovered. It is also submitted that at the time of pay fixation, the petitioner had submitted undertaking regarding recovery of excess payment made to him. TTierefore, having given such undertaking, the petitioner cannot deny recovery of excess payment. He further submits that even at the time of retirement, the petitioner had given undertaking that excess payment made by the State Government would be recoverabte. According to rute 65 of C.G. Civil Services Persion Rules, 1976, ali excess payment recoverable and adjustable.

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8. tn the case of Syed Abdul Qadir v. State of Bihar, 2009 (3) SCC 475, the Supreme Court, after taking into consideration its eariier dedsions on the issue regarding recovery of excess payment, heid as under - "S8. ordered. But, if in a given case, The relief against recovery is granted by Courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly pald, or in cases where the error is detected or corrected within a short time of wrong payment, the matter teing in the , realm ofjudiciat discretfon, Courts may, on the factsand circumstances of any particuiar case, order fw recovery of the amount paid in excess. See Sahib Ram v. Stefe ofHaryana, 1995 Supp (1) SCC 18, ShyamBabu Verma V. Union oflndia, (1994) 2 SCC 521, Union of India v. M. Bhaskar, (1996) 4 SCC 416, V.Gangaram v. Director, (1997) 6 SCC 139, Col. BJ.Akkara (Retd.) IIJ'"'!"1' ^^ni'n.Br-tl—attiw*''' '^'•,-/\--^:..