ORDER :

1. The petitioner has assailed the order of recovery of Rs. 1,52,448/- passed by the respondent No. 4 against him on 29.06.2018 after his retirement.

2. Facts of the case, in brief, are that the petitioner retired from the post of Assistant Engineer in the Water Resources Construction Division, Kasdol on 30.06.2017 after attaining the age of superannuation. It has been stated that before superannuation of the petitioner, no demand certificate was issued on 24.06.2015, 23.09,2016, 02.11.2016, 20.01.2016, 29.04.2017 and 07.06.2017 (Annexure P/2 to P/8). All of a sudden, recovery letter dated 13.09.2017 of Rs. 2,00,075/- has been issued to the petitioner. The petitioner has challenged the said recovery by filing WP (S) No. 5502 of 2018 wherein this Court vide order dated 08.02.2018 had granted liberty to the petitioner to make representation before the competent authority for redressal of his grievances within a period of four weeks the in light of the judgment passed by the Hon’ble Supreme Court in the case of State of Punjab and Others vs. Rafiq Masih (White Washer), (2015) 4 SCC 334. In pursuance of direction given by this Court to the petitioner has submitted the representation to the respondents, thereafter vide memo dated 20.08.2018, the petitioner has been informed by respondent No. 4 that as per the Circular No. 44/2018 issued by Finance Department Govt. of Chhattisgarh, there is excess payment made to the petitioner at the time of pay fixation. The memo is also annexed with the details of excess payment which has been paid to the petitioner which comes to Rs. 93,000/- in excess.

3. The record would further demonstrate that the petitioner has filed another WP (S) No. 1200 of 2018 as the retiral dues of the petitioner was not paid. This Court vide its order dated 14.03.2018 has disposed of the petition and directed the State to pay the retiral dues to the petitioner which was not paid, therefore, he has filed contempt case No. 488 of 2018. During pendency of the contempt petition, retiral dues has been paid but a sum of Rs. 1,52,448/- has been withheld towards recovery as evident from Annexure P/1 dated 26.06.2018.

4. Learned counsel for the petitioner would submit that after retirement issuance of recovery order by the respondents is bad in law. He would further submit that the petitioner made family planning as per scheme of the Government and there is provision to grant one increment to the employee who has undertaken family planning operation. He would further submit that before retirement no order of recovery was issued to the petitioner as such recovery after retirement is against the judgment of Supreme Court in the case of State of Punjab and Others vs. Rafiq Masih (White Washer), (2015) 4 SCC 334. Learned counsel for the petitioner would submit that recovery of excess payment cannot be made without giving any opportunity of hearing to the petitioner, therefore, recovery order may be quashed.

5. The State has filed their return wherein they have stated that petitioner was wrongly paid the salary from 1.1.96 to 1.7.2016 and therefore, the recovery order has been passed. The State to justify their action has referred to the judgment of Hon’ble Supreme Court in the case of Chandi Prasad Uniyal and Others vs. State of Uttrakhand and Others, 2012 (8) SCC 417 and would refer to paragraph 13, 14, and 15 which reads as under:

13. We are not convinced that this Court in various judgments referred to herein before has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or were on the verge of retirement or were occupying lower posts in the administrative hierarchy.

14. We are concerned with the e