Madhya Pradesh High Court
Makhan Lal Nema vs The State Of Madhya Pradesh on 5 April, 2021
Author: Vishal Dhagat
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
WRIT PETITION NO. 21514/2017
Parties Name MAKHAN LAL NEMA
VS.
STATE OF M.P.
AND OTHERS
Bench Constituted Single Bench
Judgment delivered By HON'BLE SHRI JUSTICE VISHAL DHAGAT
Whether approved for YES/NO
reporting
Name of counsel for parties For petitioner: Shri Devesh Bhojne, Advocate.
For Respondents : Shri Pramod Saxena, Govt. Advocate
Law laid down
Significant paragraph
number
(O R D E R )
05/04/2021
Petitioner has filed this writ petition challenging impugned
pension payment order dated 6.11.2017. By said pension
payment order recovery of Rs.3,21,048/- was ordered against
petitioner. Excess payment was made to petitioner between
25.8.2007 to 30.6.2017 towards salary and dearness allowance.
2. On 31.1.2007 petitioner was paid salary of Rs.15,690/-
though at that time his salary was 15,230/-. He was payed DA @
of Rs.4,200/- though he was entitled to get DA of Rs.3,600/-.
Petitioner was being paid salary of Rs.19,890/- though he was
entitled only to total salary of Rs.18,830/- and excess amount of
Rs.1,060/- was paid to petitioner in the year 2007 to 30.6.2008.
From 31.7.2008 petitioner was paid excess salary of Rs.1,090/-.
This anomaly continued for a long time and petitioner was paid
excess payment each month. This anomaly occurred as
petitioner was wrongly granted benefit of Krammonnati. For said
excess payment recovery of Rs.1,19,272/- and interest on the
said amount was ordered to be recovered from petitioner.
3. Petitioner has challenged the impugned order on the
ground that recovery was ordered without giving him an
opportunity of hearing, excess amount was paid to petitioner
without any fault of petitioner, order of recovery is contrary to
the judgment passed by Apex Court in the case of State of
Punjab and others vs. Rafiq Masih (2014) 8 SCC 883.
4. Respondents had filed their reply and stated therein that
petitioner was granted benefit of Second Krammonnati from year
25.8.2007. He was not entitled to get Second Krammonnati as he
refused promotion which was given to him in the year 2007. As
petitioner was wrongly granted benefit of second Krammonnati
from year 2007, therefore, excess payment was made to him
which is sought to be recovered from him. It is submitted by
learned counsel for the respondents that case of Rafiq Masih
(supra) is not applicable in the case of petitioner as petitioner
was holding the post of Headmaster which is a Gazetted Officer
post and, therefore, there is no illegality in Pension Payment
Order and recovery of excess amount from petitioner.
5. Learned counsel for the petitioner has relied on judgment
reported in the case of Lokendra Kumar Agrawal, vs. State
of M.P. and another, 2010 (2) MPHT 163 in support of his
case.
6. In the aforesaid case, petitioner therein refused to join on
the promotional post of Head Clerk. Due to said reason benefit of
Krammonnati granted to him was withdrawn. Respondent/State
has relied on circular dated 5.7.2002 and clarification dated
23.9.2002. As per said circular, if an employee refused to join on
promotional post and forego promotion then benefit of
Krammonnati (Time Bound Pay Scale) granted to such employee
should be withdrawn.
7. This Court held that subsequent withdrawal of benefit of
time-bound promotion amounts to reduction in pay and it could
only be done after holding a proper enquiry because reduction
amounts to penalty. Appellant has not conducted any
misconduct. He has simply forgone his promotion. In such
circumstances, department can withdraw benefit of promotional
post from appellant. However, benefit of time-bound promotion
granted to appellant earlier could not be withdrawn because
time-bound promotion was granted to appellant as upgradation
of pay after completing certain period of service and withdrawal
of aforesaid benefit amounts to violation of Article 311(2) of
Constitution of India. Executive instructions and clarification
issued by Department is In violation of Article 311(2) of the
Constitution of India and, therefore, writ appeal filed by the
appellant was allowed and order passed by the Single Judge
dated 14.9.2009 in WP No.774/2009 (S) was quashed and order
of Joint Director, withdrawing time-bound promotion, was also
quashed and appellant was granted the benefit of time-bound
promotion.
8. After hearing learned counsel for the petitioner and
respondents and also considering the judgment passed by
Division Bench of this Court in the case of Lokendra Kumar
Agrawal (supra) it is clear that recovery was ordered against
petitioner as petitioner was wrongly granted benefit of time-
bound promotion as he has forgone his promotion. This court has
found that benefit of time-bound promotion cannot be withdrawn
as same is hit by Article 311(2) of Constitution of India. Said
recovery can only be ordered after holding a proper enquiry.
9. Considering the aforesaid facts and circumstances of the
case, part of Pension Payment Order dated 6.11.2017 ordering
recovery of Rs.3,21,048/- from petitioner is quashed. If recovery
has already been made from petitioner then said amount may be
returned to petitioner along with interest.
10. In view of the aforesaid, this writ petition is allowed and
stands disposed of.
(VISHAL DHAGAT)
JUDGE
mms
Digitally signed by VINOD KUMAR
TIWARI
Date: 2021.04.09 17:39:45 +05'30'
