1 2025:CGHC:344 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 4598 of 2021 Madan Mohan Kharwar S/o Late Bageshwar Prasad Kharwar, Aged About 59 years, Resident of B-3 Vishal Nagar, Post Office Ravigram, Raipur, District Raipur, Chhattisgarh. ... Petitioner versus 1 - State of Chhattisgarh through the Special Secretary (Independent Charge), Atal Nagar, Mantralaya, Nawa Raipur, Chhattisgarh. 2 - The Superintending Engineer (Electrical Safety) and Chief Electrical Inspector (E.S.) Second Floor, Indravati Bahwan, Nawa Raipur, Atal Nagar, Raipur, Chhattisgarh. ... Respondents For Petitioner : Mr. Raghvendra Pradhan, Advocate For State/Respondents : Mr. Suyashdhar Badgaiyan, Dy. Govt. Advocate Hon'ble Shri Amitendra Kishore Prasad, Judge Order on Board 03.01.2025 1. Heard Mr. Raghvendra Pradhan, learned counsel for the petitioner. Also heard Mr. Suyashdhar Badgaiyan, learned Deputy Government Advocate for the State/respondents. YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.01.21 20:01:46 +0530 2 2. Challenge in this writ petition is to the impugned order dated 05.07.2021 (Annexure P/1) passed by respondent No.2, by which the application filed by the petitioner for grant of service benefits during the period when he was terminated from service i.e. 22.11.2008 to 05.11.2013 has been rejected and respondent No.2 has passed an order for recovery of an amount to the tune of Rs.82,518/- directing that the petitioner has been wrongly promoted to the post of Assistant Engineer from Sub Engineer for the period 09.10.2003 to 21.11.2008. 3. Brief facts for disposal of this writ petition, is that the petitioner, was appointed as Supervisor in the office of the Assistant Engineer (Electrical Safety) and Assistant Electrical Inspector, Department of Energy, in the erstwhile State of Madhya Pradesh on 04.04.1985. He was posted at Raipur and he was issued a domicile certificate from the erstwhile State of Madhya Pradesh. A caste certificate was also issued to him by the competent authority of Balia District, (U.P.) stating therein that he belongs to Kharwar caste, which was a schedule tribe. In due course of time, the services of the petitioner was regularized and he was allocated to the State of Chhattisgarh. Later on, the post of Supervisor was renamed as Sub- Engineer and the Petitioner also got promotion to the post of Assistant Engineer on 01.10.2003. On some complaint regarding caste of the petitioner, an inquiry was conducted by the High Level Caste Scrutiny Committee, which 3 recorded a finding that the petitioner was not belonging to Kharwar tribe and an order dated 20.10.2008 was passed against him. At the relevant point of time, the petitioner was working as Assistant Engineer and on the basis of recommendation of the High Power Caste Scrutiny Committee dated 20.10.2008, respondent No. 1 has removed the petitioner from the post of Assistant Engineer. 4. Being aggrieved by the order dated 20.10.2008, the petitioner earlier preferred a writ petition bearing Writ Petition (S) No. 309 of 2009, which was allowed vide order dated 24.06.2013, in which the order dated 20.10.2008 was quashed and further liberty was granted to the State to fix the seniority of the petitioner on the promoted post, treating him as a general candidate. 5. Thereafter, against the order dated 24.06.2013, the State Government preferred an appeal before the Division Bench of this Court, which was registered as Writ Appeal No. 542 of 2013 and vide order dated 07.01.2014, the Division Bench of this Court, dismissed the writ appeal and affirmed the order passed by the learned Single Judge. 6. Later on, against the order dated 07.01.2014, the State Government has filed a Special Leave to Appeal (C) No.11912 of 2014, which was also dismissed by order dated 11.08.2014. During pendency of writ appeal before this Court, vide order dated 05.11.2013, the Superintending Engineer (Electrical Safety) has 4 directed the petitioner to join his service subject to final outcome of pending writ appeal and pursuant to the aforesaid order, the petitioner had joined his service on 06.11.2013. As the petitioner was illegally removed from services only on the basis of recommendation of High Power Caste Scrutiny Committee and ultimately, the order of removal was quashed by this Court, which was affirmed by the Hon’ble Supreme Court, therefore the petitioner is legally entitled to get all the service benefits including monetary benefits. Accordingly the petitioner claimed the aforesaid monetary benefits for the period 22.11.2008 to 05.11.2013 and the proposal for release of monetary benefit was sent to the Under Secretary, Government of Chhattisgarh, Department of Energy and vide order dated 27.05.2015, the Under Secretary, Government of Chhattisgarh, Department of Energy has accorded approval for payment of all monetary benefits to the petitioner for the aforesaid period as per Rule 54-A of Fundamental Rules. Vide letter dated 08.01.2016, respondent No. 2 has sought appropriate guidance from Under Secretary, Government of Chhattisgarh, Department of Energy, because as per provisions of Rule 54-A(2) or Rule 54-A(3) of Fundamental Rules, the payment of unpaid salary of out of service period should be paid. On 07.09.2016, Under Secretary, Government of Chhattisgarh, Department of Energy has directed the respondent No. 2 to obtain the details of bank account and income tax details of petitioner regarding his income during the period when the 5 petitioner was out of service. In turn, vide letter dated 09.09.2016, the respondent No. 2 has directed the petitioner to furnish information as required by letter dated 07.09.2016 and on 22.11.2016, the petitioner has submitted the details relating to his bank account along with covering letter dated 22.11.2016, in which, the petitioner has specifically mentioned that since the income of petitioner was less than the tax payable income, therefore the details relating to income tax is not required to be furnished. Thereafter, vide letter dated 29.11.2016, respondent No. 2 has directed the petitioner to produce the details relating to income tax and self attested details of monthly income in the form of statement during removal period. On 27.12.2016, the petitioner submitted details of income and loan obtained by the petitioner and also mentioned that since the income of petitioner during removal period was less than the taxable income, therefore according to provisions of 139 of Income Tax Act, he is not required to submit income tax return. 7. Later, on 05.04.2019, respondent No. 2 directed the petitioner to submit income tax return during the removal period within 30 days, failing which, the petitioner will not be entitled to get the monetary benefit under Rule 54-A of Fundamental Rules. Thereafter, under Right to Information Act, the petitioner has received the letter dated 06.05.2016, by which, the Under Secretary, Government of Chhattisgarh, Energy Department has 6 sought opinion from the Advocate General, Government of Chhattisgarh regarding payment of salary and Increment to the petitioner during removal period. In reply to the said letter, the Deputy Advocate General vide his opinion dated 11.07.2016 has opined to make payment of salary and increment to the petitioner under Rule 54 of Fundamental Rules. The petitioner has received the copy of order dated 02.07.2019 under Right to Information Act, whereby respondent No. 1 has directed that since the petitioner has earned money for livelihood during removal period, which comes to Rs.46,68,760/-, therefore the said amount be deducted from the salary payable to the petitioner during removal period and the difference amount be paid to the petitioner. Perusal of the aforesaid order dated 02.07.2019, it is evident that flat purchased by wife of petitioner by her own separate income has been included into the income of petitioner. The said plot was purchased by sale deed dated 10.03.2010 and the market value of the said flat was Rs. 10,90,000/-, but while calculating the income towards flat the value of flat was determined by respondent No. 1 as Rs. 33,00,000/-. The wife of petitioner namely Smt. Geeta Rani Kharwar was the Partner R.S. Homes and was having her own separate income and by her own separate income, she has purchased the said flat in her own name and the said flat was purchased in consideration amount of Rs.10,90,000/- according to market value of said flat. The petitioner's wife was paying income tax and showing her income. 7 After receiving the above incorrect calculation of Income of petitioner during removal period by including the independent income of wife of petitioner in the income of petitioner, the petitioner has made detailed representation before the Additional Chief Secretary, State of Chhattisgarh, Department of Energy, in which, it is specifically mentioned that the income of wife of petitioner is not liable to be included into the income of petitioner and further the flat, which has been purchased by the wife of petitioner in Rs.10,90,000/- cannot be revalued to Rs.33,00,000/-. 8. Thereafter, the petitioner has sent reminder before the respondent No. 1 to release of unpaid salary and other monetary benefits including increment & time bound pay scale in favour of petitioner during removal period. On the basis of calculation made by order dated 02.07.2019, respondent No.2 has passed the impugned order dated 05.07.2021, whereby for determining the income of petitioner has been included and further the recovery of Rs.82,518/- has been proposed against the petitioner on account of excess payment made to the petitioner. Hence, the present writ petition. 9. Mr. Raghvendra Pradhan, learned counsel for the petitioner submits that insofar as recovery of amount of Rs.82,518/- is concerned, the petitioner has been worked as Assistant Engineer and also received the salary of the said post i.e. Assistant Engineer on the basis of his work rendered as Assistant Engineer, 8 and even if the petitioner has not made any mis-representation by holding the said post, the amount of recovery is liable to be quashed. He further submits that since his termination has been set aside by the Co-ordinate Bench of this Court in Writ Petition (S) No.309 of 2009 (Annexure P/5) vide order dated 24.06.2013, which has been affirmed by the Division Bench of this Court in Writ Appeal No.542 of 2013 and consequent upon, against the said order, Special Leave Petition has been filed by the State Government, which was dismissed vide order dated 11.08.2014, as such, his termination is not legitimate in the eyes of law and he has been reverted back in service. He also submits that the petitioner is claiming for the back-wages of the said period during which, he has terminated in an illegal and arbitrary manner. It has been contended that respondent authorities have illegally added the income of wife of petitioner stating that since the petitioner was in lawful gain, as such, he is not required to be paid the back- wages under fundamental Rules 54-A, whereas the income of wife is not required to be added. Therefore, the writ petition may be allowed and a direction be issued to the respondent authorities to pay the back-wages to the petitioner. 10. On the other hand, Mr. Suyashdhar Badgaiyan, learned State counsel supported the impugned order dated 05.07.2021 passed by respondent No.2 and submits that the petitioner worked during the period when he was terminated, as such, is not entitled to get 9 any amount for the period when he is not worked in the Department and the principal of “no work no pay” shall be applied. He further submits that the income whatsoever has been found against the petitioner including the income of wife has rightly been considered by the respondent authorities, which does not call for any interference. It has been contended that insofar as the recovery part is concerned, since the petitioner has wrongly been promoted to the post of Assistant Engineer, as such, the recovery order is in accordance with law and the writ petition deserves to be dismissed. 11. I have heard the learned counsel for the parties and perused the material available in the writ petition with utmost circumspection. 12. It is an admitted position that petitioner was promoted to the post of Assistant Engineer from Sub-Engineer and he has worked in the said capacity from the period 09.10.2003 to 21.11.2008. On the basis of his work rendered as Assistant Engineer, he has paid salary. Subsequently, when his promotion was found to be not in accordance with law, the order of recovery was passed. However, it is not in dispute that the petitioner has worked during the said period as Assistant Engineer, as such, the order of recovery of Rs.82,518/- is liable to be quashed. 13. Since the petitioner has terminated on the basis of report of the High Power Caste Scrutiny Committee, in which, no allegation was levelled against the petitioner except doubt regarding his 10 caste, which was set-aside by Co-ordinate Bench of this Court as well as by the Division Bench of this Court. The said order was further confirmed by the Hon’ble Supreme Court, as such, it is crystal clear that the order of termination was not in accordance with law. 14. From the aforesaid orders, it seems that it was not the petitioner who was found guilty of non-working, but it is due to the order passed by the High Power Caste Scrutiny Committee, which precluded the petitioner to work and as such, it is a case, in which Rule 54-A of the Fundamental Rules is required to be invoked. The respondent authorities may find whether the petitioner was in lawful gain during the period when he was terminated and what amount he has gained from that period of service. 15. From perusal of pleading as well as considering the arguments advanced on behalf of the learned counsel for the petitioner, it is reflected that an amount of Rs.13,68,760/- has accepted by the petitioner as the said amount has earned by him during the period when he was worked, but insofar as the income gained by the wife i.e. Rs.33,00,000/- is concerned, it is not in dispute that the said amount has been gained by the wife through her own income. The income derived from the assets of wife cannot be added into the income of the husband. 16. Looking to the matter in its entirety as well as from all the angles, it appears that the impugned order dated 05.07.2021 (Annexure 11 P/1) insofar as it relates to addition of income of wife to the tune of Rs.33,00,000/- to the petitioner is concerned, the same is not in accordance with law. As such, the part of the order whereby the income of the wife has been added to the income of the husband while denying the back-wages to the petitioner is set-aside. 17. Considering the overall circumstances of the case as well as in view of the above discussions and findings, the recovery part of the order is also set-aside looking to the fact that the petitioner has worked on the post of Assistant Engineer during the said period i.e. 09.10.2003 to 21.11.2008. Rest of the order shall remain intact. 18. In the result, the writ petition is allowed in part with the aforesaid observations / directions. There shall be no order as to costs. Sd/-- (Amitendra Kishore Prasad) Judge Yogesh