IMPORTANT POINT
Recovery of excess payment from retired employees is impermissible after five years unless a valid undertaking exists; arbitrary recovery orders are quashed.

ORDER :

(Naresh Kumar Chandravanshi, J.)

1. With consent of the learned counsel for the parties, heard the matter finally at motion stage.

2. This writ petition has been preferred under Article 226 of the Constitution of India challenging the recovery order dated 24-1-2019 (Annexure P-1) issued by respondent No. 2 for recovery of excess payment Rs. 60,902/-.

3. Facts of the case in nutshell are that, petitioner was working on the post of Executive Engineer under respondent No. 2 and he retired from service on 30-11-2011. After his retirement, he has been granted 100% pension, but only 90% gratuity has been granted and 10% gratuity has been withheld without any proper reason, whereas, in the year 2016, respondent No. 1 has issued ‘No demand, No Enquiry’ certificate and respondent No. 2 has also informed respondent No. 3 (Annexure P-4) that, no inquiry or criminal case or any recovery proceeding is pending against him. The petitioner submitted representation for releasing 10% gratuity payment to him, thereafter, respondent No. 3 made some queries from respondent No. 2 vide Annexure P-5 dated 20-6-2017, with regard to payment of Kramonnat Vetanman and determination of pay fixation. Respondent No. 2 informed respondent No. 3 Vide Annexure P-6 dated 31-7-2017 that, issue with regard to recovery does not arise against petitioner, despite that, respondent 2 has issued impugned recovery order Annexure P-1, on the ground that, he was entitled to get upgraded increment with effect from 30-6-2000, but he was wrongly granted upgraded annual increment with effect from 1-1-2000. Therefore, excess payment is liable to be recovered in view of instructions issued by the State Government vide order dated 18-8-2003. Aforesaid recovery order Annexure P-1 has been challenged by the petitioner in this writ petition.

4. Learned counsel for the petitioner would submits that, impugned recovery order is arbitrary and contrary to law. As per sub-clause 3-A of Rule 66 of Chhattisgarh Civil Services (Pension) Rules, 1976 (hereinafter referred to as ‘Rules, 1976’), such recovery could have been made only within a period of six months from the date of retirement of the Government servant and after that, it could be recovered through legal procedure, as provided under sub-clause 4 of the Rule 66 of the Rules, 1976, but in instant case, recovery order has been made after about 8 years of retirement of the petitioner. There was no illegality in grant of time scale pay to the petitioner and on that count, upgraded increment date was fixed, which was duly verified by the competent authority. It is further submitted that the impugned order has been issued despite issuing ‘No Demand, No Enquiry’ certificate by the State Government, which was sent vide Annexure P-7 by the Superintending Engineer (Administration) to the Chief Engineer. It is further submitted that, the petitioner has not given any undertaking with regard to recovery of excess payment, despite that, impugned order has been issued after about 8 years of his retirement. He further submits that, respondents have stated in their reply that, Annexure R-4 is undertaking given by the petitioner for recovery of excess payment, but it was not undertaking, rather it was only communication made by him to the Chief Engineer with regard to payment of Rs. 4960/- through Chalan. The petitioner deposited aforesaid amount on oral saying by the authorities that, to get remaining amount, he has to pay Rs. 4960/-, therefore, he had paid the amount but, it cannot be termed as undertaking of the petitioner, hence he prayed that, relief, as sought for, be granted to the petitioner.

5. Respondent – State has filed its reply. Learned counsel appearing for the State, while referring to the reply, would submit that, when the petitioner was working as Assistant Engineer, vide order dated 4-8-2002, he was extended benefit of Kramonnati pay scale with effect from 30-6-1999. On the basis of certificate dated 17/3/1999-19/4/1999 issued