Birbal Gadpale Vs State of Chhattisgarh

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CGHC010151532022

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Digitally signed by NADIM MOHLE

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2026:CGHC:29776

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 3255 of 2022

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Smt Sushila Gadpale W/o Birbal Gadpale, Aged About 53 Years Presently Working As Head Master In Pre-Middle School, Lattipara Kanker, Vikaskhand Kanker, R/o Near Gyatri Mandir, Annapurna Para, Kanker, District : Kanker, Chhattisgarh. --- Petitioner

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versus

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State Of Chhattisgarh Through Secretary, School Education Department, Mantralaya New Raipur, District : Raipur, Chhattisgarh.

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The Secretary, Department Of Tribal Welfare Development, Mantralaya, New Raipur (Chhattisgarh), District : Raipur, Chhattisgarh

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The Commissioner, Scheduled Caste And Scheduled Tribe Development, Indravati Bhawan, Atal Nagar, Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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District Education Officer, North Bastar, Kanker, District : Kanker, Chhattisgarh.

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--- Respondent(s) with

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WPS No. 3256 of 2022

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Birbal Gadpale S/o Late Sukhdev Gadpale Aged About 55 Years Presently Working As Head Master In Pre-Middle School, Aturgaon, Vikaskhand Kanker, R/o Near Gyatri Mandir, Annapurna Para, Kanker,, District : Kanker, Chhattisgarh

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--- Petitioner

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Versus

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State Of Chhattisgarh Through - Secretary School Education Department, Mantralaya, New Raipur Chhattisgarh.

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The Secretary, Department Of Tribal Welfare Development, Mantralaya, New Raipur Chhattisgarh.

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The Commissioner Scheduled Caste And Scheduled Tribe Development, Indrawati Bhawan, Atal Nagar, Raipur Chhattisgarh.

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4. District Education Officer, North Bastar, Kanker Chhattisgarh.

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--- Respondent(s) For Petitioners : Mr. Sunil Kumar Soni, Advocate For State : Mr. Vinay Kumar Pandey, Deputy Advocate General

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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14.07.2026

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The petitioners, who are presently working on the post of Headmaster, have sought to quash the order dated 30.10.2021, whereby two advance increments previously extended to them were withdrawn, and the order dated 13.07.2017, whereby recovery of arrears of two advance increments paid to the petitioners was passed.

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Learned counsel appearing for the petitioners would make the following submissions:-

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A. The petitioners were granted the benefit of two advance increments after completion of their B.Ed. Training. The benefit was duly sanctioned, recorded in the service books of the petitioners, and extended to them for a considerable period.

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B. Once the benefit had been granted and acted upon, the same acquired the character of an accrued and vested right and could not have been withdrawn without issuing notice or providing an opportunity of hearing.

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C. The impugned action has civil and pecuniary consequences and, therefore, the principles of natural justice were required to be followed. Reliance has been placed upon the judgment of the Delhi High Court in the matter of K.B. Tandon v. Central Bank of India, 1994 SCC OnLine Del 130 , to contend that an adverse order affecting civil rights cannot ordinarily be passed

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without providing an opportunity of hearing.

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D. He has also relied upon the judgment of the Jharkhand High Court in the matter of Dr. Shyam Sundar Singh v. State of Jharkhand, 2023 SCC OnLine Jhar 1166 , wherein, relying upon the decision of the Hon'ble Supreme Court reported in MGB Gramin Bank Vs. Chakrawarti Singh, reported in (2014) 13 SCC 583 , it has been observed that a vested right cannot be taken away without following the principles of natural justice.

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E. It is further submitted that there is no allegation of fraud, misrepresentation, or suppression of facts against the petitioners. Even if the benefit had been wrongly extended, the same could not have been withdrawn without first giving the petitioners an opportunity to explain their case.

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F. Learned counsel for the petitioners has also urged that the action of the respondents is discriminatory and violative of Article 14 of the Constitution of India. It is submitted that similarly situated employees have been permitted to retain the benefit of two advance increments, whereas the petitioners alone have been subjected to withdrawal of the said benefit. It is contended that the respondents have failed to furnish any rational basis for such differential treatment.

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G. The benefit of two advance increments, once granted, cannot be treated merely as an incident of service. There is a distinction between a general condition or incident of service and a benefit which has already been granted, recorded in the service book, and acted upon.

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H. It is submitted that the petitioners' claim is not for the initial grant of the benefit but against the withdrawal benefit which has already been granted.

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I. Learned counsel for the petitioners has also sought to distinguish the judgment in the matter of Tilak Ram Patel v. State of Chhattisgarh, W.P.(S) No. 4030 of 2013, decided on 06.12.2013 , contending that the said judgment dealt with the entitlement to grant of increments, whereas the present case concerns withdrawal of increments already granted. It is argued that the said judgment did not consider the issue of violation of natural justice in the manner arising in the present case.

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J. Lastly, learned counsel for the petitioners submits that the subsequent circulars dated 01.12.2016 and 07.03.2020 cannot be applied retrospectively so as to take away a benefit which had already accrued in favour of the petitioners.

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On the other hand, learned counsel appearing for the State would oppose the submissions advanced on behalf of the petitioners and submit that the benefit of two advance increments was not legally admissible to teachers appointed after the relevant amendment dated 16.06.1993. It is contended that after the said amendment, B.Ed., D.Ed. and BTI qualifications became the minimum prescribed qualifications for appointment to the relevant posts and, therefore, acquisition of such qualification could not thereafter form the basis for grant of additional advance increments.

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I have heard the learned counsel for the parties and perused the documents.

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The principal issue which arises for consideration is whether the petitioners, who were appointed after the amendment dated 16.06.1993, could claim the benefit of two advance increments merely on the ground that they subsequently acquired or possessed the qualification of B.Ed., D.Ed. or BTI.

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The issue is no longer res integra in the matter of Asha Saxena v. State of M.P., Civil Appeal No. 3408 of 2008 , the Hon'ble Supreme Court restored the order directing grant of two advance increments to the concerned employee. Similarly, in State of M.P. v. Badrinarayan Acharya, (1996) 10

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SCC 271 , the entitlement to two advance increments was considered. However, the amendment dated 16.06.1993, whereby the relevant educational qualifications were made mandatory minimum qualifications for appointment, was not the issue considered in the aforesaid decisions.

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The effect of the amendment dated 16.06.1993 has subsequently been considered by this Court in Neelam Dubey v. State of Chhattisgarh, WPS No. 2051 of 2017 , wherein the petition was dismissed on 25.04.2024. The writ appeal preferred against the said order, being W.A. No. 501 of 2024 , was also dismissed on 09.08.2024. The Special Leave Petition thereafter preferred before the Hon'ble Supreme Court was also dismissed on 02.07.2025.

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The consistent view emerging from the aforesaid decisions is that, after the amendment dated 16.06.1993, the qualifications of B.Ed., D.Ed. and BTI became the minimum prescribed qualifications for appointment to the relevant teaching posts. Consequently, a person appointed after the said date, possessing or acquiring such qualification, cannot claim two advance increments merely on the basis of that qualification, as the qualification itself is an entry-level requirement for appointment.

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In the present case, the petitioners seek to derive a right to two advance increments on the basis of qualifications which, after the amendment dated 16.06.1993, became mandatory qualifications for appointment to the relevant posts, therefore, the benefit cannot be claimed as an independent additional incentive merely because the petitioners possessed or acquired the said qualification.

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10. The fact that the benefit was erroneously extended to the petitioners and was recorded in their service books cannot, by itself, create a legal entitlement contrary to the applicable statutory framework and the policy governing the grant of advance increments. An erroneous administrative act cannot confer a right which is otherwise unavailable under the governing rules or policy.

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11. The submission of learned counsel for the petitioners that the benefit had become a vested right merely because it was recorded in the service book cannot be accepted in the facts of the present case. A vested right must necessarily be founded upon a legally sustainable entitlement. Mere payment or entry in a service record cannot validate a benefit which was not legally admissible under the applicable policy.

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12. The reliance placed upon K.B. Tandon v. Central Bank of India and Dr. Shyam Sundar Singh v. State of Jharkhand also does not rescue the petitioners. It is not in dispute that a general proposition that an order having adverse civil consequences should be passed in accordance with the principles of natural justice. However, the requirement of a prior hearing cannot be applied mechanically where the issue is one of correcting an erroneous grant which is contrary to the applicable legal position and where no disputed question of fact requires adjudication.

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13. In the present case, the relevant facts are not in dispute. The question whether the petitioners were legally entitled to the benefit of two advance increments after the amendment dated 16.06.1993. The question has already been considered and settled in the decision rendered in Neelam Dubey , which has attained finality after dismissal of the writ appeal and the Special Leave Petition.

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14. The principles of natural justice are intended to ensure fairness in decisionmaking. They cannot be invoked to perpetuate an illegal or impermissible benefit contrary to the governing rules. The requirement of hearing cannot convert an otherwise impermissible benefit into a legally enforceable right.

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15. The contention that the absence of fraud or misrepresentation on the part of the petitioners necessarily prevents withdrawal of the benefit also cannot be accepted. The absence of fraud or misrepresentation may be relevant while considering recovery of amounts already paid, particularly in the light of the principles laid down in State of Punjab and Others v. Rafiq Masih (White Washer), (2014) 4 SCC 334 . However, it does not, by itself,

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establish a substantive entitlement to a benefit which was not legally admissible.

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16. The submission regarding Article 14 of the Constitution of India is also without merit. The petitioners have alleged that similarly situated employees were permitted to retain the benefit. However, an erroneous benefit granted to some employees cannot be claimed as a matter of right by another employee under the principle of equality. Article 14 does not envisage negative equality.

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17. In any event, the petitioners have not demonstrated that the alleged employees were similarly situated in all material respects, including the date of appointment, the applicable rules, the relevant qualifications, and the legal position governing the grant of advance increments. Mere assertion that some other employees continued to receive the benefit is insufficient to establish hostile discrimination.

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18. The contention that an increment already granted is distinct from an incident of service also does not advance the case of the petitioners. The question is not whether the amount was actually paid or entered in the service record. The question is whether the petitioners had a lawful entitlement to receive the benefit. Where the underlying entitlement itself is absent, the fact of prior payment cannot create a permanent or indefeasible right.

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19. The reliance placed upon Tilak Ram Patel v. State of Chhattisgarh also requires consideration. Though the factual circumstances of every case may not be identical, the principle relevant to the present controversy is that entitlement to advance increments must be examined with reference to the applicable service rules and the policy governing the grant of such increments. The petitioners cannot avoid the effect of the amendment dated 16.06.1993 merely by describing the benefit as a vested right.

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20. The distinction sought to be drawn by learned counsel for the petitioners between grant of an increment and withdrawal of an increment already

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granted does not alter the legal position. The question of withdrawal arises only because the benefit was earlier extended contrary to the applicable legal regime. The subsequent correction of such erroneous extension cannot be defeated merely on the ground that the benefit had already been paid.

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21. Similarly, the contention regarding retrospective application of the circulars dated 01.12.2016 and 07.03.2020 cannot be accepted in the manner urged by the petitioners. The withdrawal of the benefit is not founded upon the retrospective creation of a new disqualification. Rather, the action of the respondents is based upon the determination that the petitioners were not legally entitled to the benefit under the applicable policy and the legal position governing appointments after 16.06.1993.

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22. The subsequent circulars, therefore, cannot be said to have retrospectively taken away a legally vested right. At the highest, they clarify or implement the existing policy position regarding the entitlement to advance increments. A benefit which was never legally available cannot become immune from correction merely because it was mistakenly granted earlier.

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23. The position, however, is different with regard to recovery of the amounts already paid to the petitioners.

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24. In the matter of State of Punjab and Others v. Rafiq Masih (White Washer), (2014) 4 SCC 334 , the Hon'ble Supreme Court summarized the circumstances in which recovery of excess payments would be impermissible. The Court specifically included recovery from employees belonging to Class III and Class IV services and recovery of payments made for a period in excess of five years before the order of recovery.

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25. In the present case, the petitioners belong to Class III service. The alleged excess payment continued for a period of more than five years, and there is no allegation of fraud or misrepresentation on the part of the petitioners.

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26. The case of the petitioners, therefore, squarely falls within the principles laid down in Rafiq Masih . Recovery of the amounts already paid to the

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petitioners would cause undue hardship and would be impermissible in law.

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27. Accordingly, while this Court finds no merit in the challenge to the withdrawal of the benefit of two advance increments, the orders directing recovery of the amounts already paid to the petitioners cannot be sustained. Consequently, the petitions are partly allowed . The impugned recovery order dated 13.07.2017 is hereby quashed .

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28. The respondents are directed not to recover any amount already paid to the petitioners towards the two advance increments. If any amount has already been recovered from the petitioners pursuant to the impugned recovery order, the same shall be refunded to them forthwith, subject to verification of the amount actually recovered.

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No order as to costs.

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Sd/- Sd/-

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(Rakesh Mohan Pandey) JUDGE

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Nadim

Birbal Gadpale v. State of Chhattisgarh

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Birbal Gadpale v. State of Chhattisgarh

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