Madhya Pradesh High Court
Smt. Bilquees Tabassum vs The State Of Madhya Pradesh on 14 December, 2021
Author: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
Gwalior, Dated:14-12-2021
Shri Alok Kumar Sharma, Counsel for the petitioners in W.P.
Nos.13264/20, 13467/20, 15532/20, 15649/20, 15751/20, 15762/20,
15942/20, 89/20, 116/21, 499/21, 1053/21, 1339/21, 1375/21,
1476/21, 2140/21, 2779/21, 3535/21, 3538/21, 5567/21, 6084/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21, 11797/21 &
11798/21.
Shri Shashank Indapurkar, Counsel for the petitioners in W.P.
Nos. 2025/21, 2902/21
Shri S.P. Jain, Counsel for the petitioners in W.P. Nos.4480/21,
4482/21, 11765/21.
None for the petitioners in W.P. No.7280/21, 7343/21
Shri Deepak Khot, Government Advocate for the State in all
writ petitions.
By this common order Writ Petition No.13264/2020 (Satish
Babu Shukla Vs. State of Madhya Pradesh and others), Writ Petition
No.13467/2020 (Suraj Singh Parihar Vs. State of Madhya Pradesh
and others, Writ Petition No.15532/2020 (Mahendra Kumar Rastogi
Vs. State of Madhya Pradesh and others), Writ Petition
No.15649/2020 (Hariraj Singh Chauhan Vs. State of Madhya Pradesh
2
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
and others), Writ Petition No.15751/2020 (Rakesh Shivhare Vs.
State of Madhya Pradesh and others), Writ Petition No.15762/2020
(Dinesh Kumar Batham Vs. State of Madhya Pradesh and others),
Writ Petition No.15942/2020 (Yusuf Khan Vs. State of Madhya
Pradesh and others), Writ Petition No.89/2021 (Ram Kumar Pathak
Vs. State of Madhya Pradesh and others), Writ Petition No.116/2021
(Rajendra Kumar Swarnkar Vs. State of Madhya Pradesh and others),
Writ Petition No.499/2021 (Vinod Kumar Shukla Vs. State of
Madhya Pradesh and others), Writ Petition No.1053/2021 (Veer
Singh Yadav Vs. State of Madhya Pradesh and others), Writ Petition
No.1339/2021 (Sunil Kumar Jain Vs. State of Madhya Pradesh and
others), Writ Petition No.1375/2021 (Rakesh Sharma Vs. State of
Madhya Pradesh and others), Writ Petition No.1476/2021 (Ashok
Kumar Dubey Vs. State of Madhya Pradesh and others), Writ
Petition No.2025/2021 (Smt. Rajrani Chauhan Vs. State of Madhya
Pradesh and others), Writ Petition No.2140/2021 (Ram Lakhan
Shrivastava Vs. State of Madhya Pradesh and others), Writ Petition
No.2779/2021 (Prahalad Singh Bundela Vs. State of Madhya Pradesh
and others), Writ Petition No.2902/2021 (Mahesh Sharma Vs. State
of Madhya Pradesh and others), Writ Petition No.3535/2021 (Hari
3
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
Singh Chaudhary Vs. State of Madhya Pradesh and others), Writ
Petition No.3538/2021 (Smt. Manjula Joshi Vs. State of Madhya
Pradesh and others), Writ Petition No.4480/2021 (Dhanraj Jha Vs.
State of Madhya Pradesh and others), Writ Petition No.4482/2021
(Bhagat Singh Yaduvanshi Vs. State of Madhya Pradesh and others),
Writ Petition No.5567/2021 (Ram Kumar Dwivedi Vs. State of
Madhya Pradesh and others), Writ Petition No.6084/2021 (Smt.
Anita Sen Vs. State of Madhya Pradesh and others), Writ Petition
No.7280/2021 (Arvind Singh Chauhan Vs. State of Madhya Pradesh
and others), Writ Petition No.7343/2021 (Rambabu Vs. State of
Madhya Pradesh and others), Writ Petition No.7798/2021 (Raj
Kumari Yadav Vs. State of Madhya Pradesh and others), Writ
Petition No.8411/2021 (Smt. Girja Sharma Vs. State of Madhya
Pradesh and others), Writ Petition No.8966/2021 (Devendra Kumar
Shrivastava Vs. State of Madhya Pradesh and others), Writ Petition
No.9235/2021 (Smt. Suman Shrivastava Vs. State of Madhya
Pradesh and others), Writ Petition No.9538/2021 (Smt. Bilquees
Tabassum Vs. State of Madhya Pradesh and others), Writ Petition
No.9731/2021 (Smt. Shashi Kala Kushwaha Vs. State of Madhya
Pradesh and others), Writ Petition No.11765/2021 (Smt. Usha
4
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
Shrivastava Vs. State of Madhya Pradesh and others), Writ Petition
No.11797/2021 (Arjun Bahadur Thapa Vs. State of Madhya Pradesh
and others) and Writ Petition No.11798/2021 (Smt. Archana Tiwari
Vs. State of Madhya Pradesh and others) shall be finally disposed of.
2. For the sake of convenience, facts of Writ Petition
No.13264/2020 shall be taken into consideration.
3. The controversy involved in the present case, revolves in a
very narrow compass.
4. For the sake of clarity, the service record of each of the
petitioners is as under:-
Sl.No. Case Type Date of Date of Post Date of
Appointment Retirement Death
63.1 W.P.13264/2021 29.03.1984 31.05.2020 ASI (M) -
63.2 W.P.13467/2021 08.03.1984 31.08.2020 ASI (M) -
63.3 W.P.15532/2020 15.07.1981 31.07.2021 ASI (M) -
63.4 W.P.15649/2020 03.04.1984 31.07.2021 ASI (M) -
63.5 W.P.15751/2020 10.02.1984 - ASI (M) -
63.6 W.P.15762/2020 05.02.2003 - ASI (M) -
63.7 W.P.15942/2020 22.04.1981 31.12.2020 ASI (M) -
63.9 W.P.89/2021 28.06.1983 30.04.2020 ASI (M) -
63.10 W.P.116/2021 28.08.1982 31.07.2015 Subedar (M) -
63.11 W.P.499/2021 23.05.1981 31.10.2020 Subedar (M) -
63.12 W.P.1053/2021 27.11.1984 30.11.2020 ASI(M) -
63.14 W.P.1339/2021 15.10.1982 - SI(M) -
63.15 W.P.1375/2021 16.09.1981 30.04.2021 Subedar (M) -
63.16 W.P.1476/2021 25.11.1985 - ASI(M) -
5
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
63.17 W.P.2025/2021 13.09.1988 - SI(M)
63.18 W.P.2140/2021 28.06.1983 31.12.2013 SI(M) -
63.19 W.P.2779/2021 28.08.1982 31.07.2016 ASI(M) -
63.20 W.P.2902/2021 15.07.1982 - Subedar (M)
63.21 W.P.3535/2021 22.10.1985 - SI(M) -
63.22 W.P.3538/2021 01.12.1982 Retiring on SI(M) -
31.12.21
63.23 W.P.4480/2021 18.12.1995 - ASI (M) -
63.24 W.P.4482/2021 14.07.1982 - SI (M) -
63.25 W.P.5567/2021 28.02.1982 31.01.2021 Subedar (M) -
63.26 W.P.6084/2021 22.12.1994 - ASI (M) 12.02.2015
63.27 W.P.7280/2021 21.06.1991 - SI (M) -
63.28 W.P.7343/2021 12.07.1989 - SI (M) -
63.29 W.P.7798/2021 15.03.1985 30.06.2021 ASI (M) -
63.30 W.P.8411/2021 22.08.1984 - ASI (M) 22.11.2020
63.31 W.P.8966/2021 03.04.1984 31.10.2021 SI (M) -
63.32 W.P.9235/2021 03.03.2003 - ASI (M) -
63.33 W.P.9538/2021 01.12.1982 31.07.2015 SI (M) -
63.34 W.P.9731/2021 12.01.1984 31.03.2021 SI (M) -
63.35 W.P.11765/2021 17.08.1983 30.09.2014 ASI (M) -
63.36 W.P.11797/2021 21.08.1987 - ASI (M) -
63.37 W.P.11798/2021 30.06.1984 Retiring on ASI (M) -
30.6.2022
5. The Ministerial Cadre was created in the State Police Force
w.e.f.1/3/1967. By an order dated 28/8/2000 the State in compliance
of various orders issued by the M.P. State Administrative Tribunal
directed that all the employees of the Police Department in the
Ministerial Cadre shall also be entitled to get the benefit of
Chaudhari Pay Commission w.e.f.1/4/1981 by including Rs.70/- ad
6
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
hoc as per the schedule given in the order. As a result, the employees
of the Ministerial Cadre came at par in the pay scale with the
employees of Executive Cadre of the Police Department of the same
rank. The aforesaid order was modified by order dated 25/3/2006 and
it was directed that the position of the employees of Ministerial
Cadre shall not be upgraded. However, their pay scale shall be fixed
as per their entitlement and the employees of the Ministerial Cadre
shall be entitled for ad hoc increase of Rs.50/-, Rs.60/- and Rs.70/-
respectively in their pay scale after refixation. The said order was
challenged by various persons by filing writ petitions and by order
dated 18/7/2007, writ petitions were dismissed and the order dated
25/3/2006 passed by the State Government was upheld. Being
aggrieved by the judgment passed by the Single Judge, various Writ
Appeals were filed, which were disposed of by order dated 21/4/2011
passed in the case of Smt. Sushma Tiwari Vs. The State of M.P.
(Writ Appeal No.1760/2007 and other connected writ appeals).
6. It appears that the entire controversy started in the light of the
order dated 1/1/2000 passed by the M.P. State Administrative
Tribunal, Bhopal Bench in OA No.45/1998, by which it was directed
as under:-
7
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
"Petition is accordingly allowed and the
Respondents are directed to re-fix the pay of the
applicant in the revised pay scale, as per Table 31
of M.P. Revision of Pay Rules, 1983 by including
Rs. 70/-of adhoc increase for calculation of initial
pay as per Rule 7(b) of the said rule and
accordingly Respondents are further directed to
revise the pension and pay the arrears with simple
interest @ 12% per annum from the date of filing
of this petition i.e. 20.1.1998 till the date of actual
payment."
7. Thereafter, a Review Petition was filed against the said order
and the said Review Petition was decided by order dated 17/11/2001
with the following observations:-
"8. It appears from the above submissions of
Government Advocate that only because a wrong
Table number was mentioned in the operative part
of the original order under review that an entirely
unintended benefit has flowed to the subsequent
Petitioners. Here it may also be mentioned that
Table 31 and other Tables are only ready
reckoners issued by Government for fixing the
pay of Government servants drawing pay at
different stages in the pre-revised scales in the
new revised scales so as to facilitate quick pay
fixation. They do not prescribe the new scales.
The new revised scales are given either in
Schedule I or II of the Pay Rules 1983 against the
corresponding un-revised scales and being part of
the rules have the requisite statutory force. The
pay fixations were also required to be carried out
as per the provisions contained in the rules. The
prayer in the original petition made by the non-
applicant for fixing his pay as per Table 31 was
therefore, in this light misconceived. There was no
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
need for a reference to any Table. There is thus an
apparent error on the face of the record. The
reference to Table 31 which pertains to Inspectors
of the executive force under circumstances
brought out above has created a situation which
has led to extension of an entirely unintended
benefit. There being an apparent error on the face
of the record the original order deserves to be
recalled and reviewed and the error corrected....
8. It appears that the order passed by the M.P. State
Administrative Tribunal in the Review Petition was not brought to
the notice of the authorities and accordingly, the petitioners were
given the benefit of revised pay scale placing them at par with the
Executive Cadre of the police of the same rank.
9. The Writ Appellate Court while deciding Writ Appeal
No.1760/2007 upheld the decision of the State Government to effect
recovery, but also found that since the controversy arose in the light
of the order dated 1/1/2000 passed by the M.P. State Administrative
Tribunal in O.A. No.45/1998, which was rectified by order dated
17/11/2001 passed in the review application, therefore, the recovery
during the period between 1/1/2000 and 17/11/2001 was quashed.
The relevant part of the direction given by the Writ Appellate Court
in the case of Smt. Sushma Tiwari (supra) reads as under:-
29. The Apex Court considering similar
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
controversy in Syed Abdul Qadir (supra) held
thus:
"The excess amount that has been paid to
the Appellant teachers, was not because of any
misrepresentation of fraud on their part and the
Appellants also had no knowledge that the amount
that was being paid to them was more than what
they were entitled to. The Finance Department of
the Respondent State has admitted that it was a
bonafide mistake. The excess payment made was
the result of wrong interpretation of the rule that
was applicable to them, for which the Appellants
cannot be held responsible. Rather, the whole
confusion was because of inaction, negligence and
carelessness of the officials concerned of the
Respondent Government. It has also been brought
to the Courts notice that majority of the
beneficiaries have either retired or are on the
verge of it. Keeping in view the peculiar facts and
circumstances of the case at hand and to avoid any
hardship to the Appellant teachers, recovery of the
amount that has been paid in excess to the
Appellant teachers is prohibited. Amount that has
already been recovered has to be refunded to the
employees concerned. These directions would also
apply to those similarly situated teachers who
have not moved the Court."
Similar is the position herein. The
Appellants/Petitioners herein were given
emoluments at par with their counter part in
executive while contention of the Petitioners was
accepted by the Tribunal in O.A. No. 45/98 on
1.1.2000. Though aforesaid order was reviewed by
the Tribunal on 17.11.2001 but inspite of this,
amount was paid to the Appellants/Petitioners. So,
the amount which was paid between 1.1.2000 and
17.11.2001 was because of the order passed by the
Tribunal for which Appellants/Petitioners cannot
be held liable, so recovery of the amount paid to
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
the Appellants/Petitioners for the period between
1.1.2000 and 17.11.2001 against the
Appellants/Petitioners is not justified. However,
the amount which has been paid after 17.11.2001
till the impugned order was passed,
Appellants/Petitioners were not entitled to receive
the same amount. In view of the aforesaid, the
Appellants/Petitioners were not at fault in getting
the emoluments for the period between 1.1.2000
and 17.11.2001 and recovery for this period
against the Petitioners is not justified. However,
after 17.11.2001, any amount paid to the
Petitioners was not legal and justified and in this
regard, recovery initiated against the
Appellants/Petitioners is in accordance with law.
30. In view of aforesaid, recovery against the
Appellants/Petitioners for the period between
1.1.2000 and 17.11.2001 is hereby quashed.
However, Respondents shall be entitled to recover
the excess amount paid to the
Appellants/Petitioners after 17.11.2001. Aforesaid
amount shall be recovered in installments as
directed by the respondents.
10. It is submitted by the counsel for the petitioners that by
directing for recovery of revised pay scale paid by the authorities, the
petitioners have been deprived of their special emoluments as
directed by the State Government by order dated 26/28-6-1979.
Furthermore, the pay was re-fixed without there being any
misrepresentation on the part of the petitioners and since most of the
petitioners have already retired or the employees have expired,
therefore, in the light of the judgment passed by the Supreme Court
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
in the case of State of Punjab Vs. Rafiq Masih reported in 2015 (4)
SCC 334 the recovery is bad in law. In some of the writ petitions the
refixation of pay scale has also been claimed on account of non-
extension of benefit of FR 22-D as well as non-extension of
recommendation of Singhdev Committee. However, during the
course of arguments, it was fairly conceded by the counsel for the
petitioners that non-payment of the benefit of special increment, non-
extension of the benefit of FR 22-D, non-extension of
recommendations of Singhdev Committee have not been
specifically pleaded.
11. Per contra, the petition is vehemently opposed by the counsel
for the State. It is submitted that in view of the judicial
pronouncements by the M.P. State Administrative Tribunal in the
Review Petition as well as by the Division Bench of this Court in the
case of Smt. Sushma Tiwari (supra), which was upheld by the
Supreme Court in the case of S.H. Baig and Ors. Vs. the State of
M.P. and Ors. passed in Civil Appeal No.9888-9899 of 2018, the
recovery has been rightly initiated.
12. Heard learned counsel for the parties.
13. So far as the question of refixation of salary on any ground as
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
argued by petitioners is concerned, this Court is of the considered
opinion that this petition suffers from mis-joinder of multiple cause
of actions. Primarily this petition has been filed against the impugned
order by which recovery of excess amount paid to the petitioners has
been directed. If the petitioners are of the view that they were entitled
for a particular pay scale or the benefit of any provision of law and
the same has not been extended to them, then it would be a separate
cause of action, which cannot be clubbed with the question of
recovery of excess payment.
14. Accordingly, the counsel for the petitioners seek permission to
withdraw their prayer for refixation of salary of the petitioners with
liberty to assail the same by filing a separate writ petition.
15. With aforesaid liberty, the prayer for refixation of the pay scale
of the petitioner on any other ground is hereby dismissed as
withdrawn.
16. Now the only question which remains to be decided in the
present case is as to whether the impugned order by which recovery
has been directed is bad in law?
17. As already held, the controversy has already been decided by
the Supreme Court in the case of S.H. Baig (supra). In the case of
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
Smt. Sushma Tiwari (supra) the Division Bench of this Court has
held as under:-
22. Now the contention of the Petitioners that
adhoc increment could have been included for the
purpose of revision of pay-scale, may be seen.
Rule 7(1)(b)(iv) specifically provides that adhoc
increase sanctioned to certain categories of
Government servants in Police, Home Guard, Jail
and Excise Department, except the adhoc increase
allowed to Ministerial Staff of Police Department.
Aforesaid rule specifically excludes adhoc
increase allowed to ministerial staff of the police
department and that adhoc increase was not to be
taken into consideration for revision of pay. In the
light of specific provisions under the Rules of
1983, adhoc increase which was given to the
Petitioners vide Annexure A/2 dated 26/28.6.1979
was not to be included for revision of pay-scales
under the Rules of 1983. In the light of the
aforesaid discussion, contention of the Petitioners
that adhoc increase in the pay ought to have been
included for the purpose of revision of pay has no
substance. Annexure-I provides existing pay-
scales and corresponding revised pay-scale under
the Rules of 1983 and as per Rule 3 of the Rules,
Petitioners were entitled for corresponding revised
pay-scale under Annexure-I for the simple reason
that adhoc increment was excluded for the
ministerial staff of the Police Department and in
Annexure-II, ministerial staff were specifically
not included. Their pay-scales were not matching
to the pay-scales shown in column-3 of Annexure-
II, so Petitioners were entitled for the revision of
pay-scales as per Annexure-I only.
18. Thus, it is clear that the ad hoc increase which was to be given
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
to the petitioners in the light of order dated 26/28-6-1979 was not to
be included for revision of pay scales under the Rules of 1983.
19. So far as the contention of the counsel for the petitioners that
recovery cannot be effected in the light of the judgment passed by the
Supreme Court in the case of Rafiq Mashih (supra) is concerned,
this Court is of the considered opinion that in the light of the
judgment passed by the Supreme Court in the case of S.H. Baig
(supra) the submissions made by the counsel for the petitioners are
misconceived and are liable to be rejected. In the present case, the
whole controversy arose on account of an order passed by the M.P.
State Administrative Tribunal in O.A. No.45/1998, which was
subsequently reviewed by order dated 17/11/2001 and order dated
1/1/2000 passed in O.A. No.45/1998 was clarified. Thus, it cannot be
said that the excess payment which was made to the petitioner was on
account of some calculation mistake by the authorities, but at the
same time it can also be said that the excess payment was not made to
the petitioner on account of any misrepresentation on their part. The
Supreme Court in the case of S.H. Baig (supra) did not quash the
entire recovery proceedings on the basis of the judgment passed in
the case of Rafiq Mashih (supra). The restrain order issued by the
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
Writ Appellate Court thereby prohibiting the respondents to recover
the excess payment for the period in between 1/1/2000 till
17/11/2001 was upheld by Supreme Court, meaning thereby that the
respondents shall not be entitled to recover the excess payment made
to the petitioners for the period between 1/1/2000 and 17/11/2001.
However, this Court cannot loose sight of the fact that the petitioners
were entitled for ad hoc increase as per order dated 26/28-6-1979, but
it was not to be included for revision of pay scale under the Rules of
1983. This ground has not been specifically raised in the writ
petition. However, this Court is of the considered opinion that the
entitlement of the petitioners to get adhoc increase can be considered
by the respondents.
20. The next question for consideration is as to whether the
respondents are entitled to recover the interest on the excess payment
or not?
21. In some of the writ petitions the respondents themselves have
not charged interest over the excess payment, however, in some of
the petitions the interest has also been claimed by the respondents.
The Division Bench of this Court in the case of Smt. Manoj Sharma
Vs. State of M.P. & Ors passed in Writ Appeal No.293/2021 dated
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
31/08/2021 has held as under:-
"5. The aforesaid arrangement of preventing the
employer from recovering interest over and above
the amount for which undertaking was given,
would serve dual purposes. It shall prevent
wastage of public money by enabling the
employer to recover the principal amount as
promised vide undertaking and also would prevent
undue enrichment of the employer by means of
interest. An argument may be raised that once an
undertaking is given, may be, for refund of excess
principal amount then the employee concerned is
also liable to pay interest for having retained
public money for number of years before
refunding the same. The argument ostensibly
appears to be attractive but in reality and from
practical point of view is neither viable nor
feasible. The reason being that the undertaking is
limited to the recovery of principal amount of
excess payment. The other reason is that there was
no misrepresentation on the part of employee to
retain and consume the excess amount for number
of years. Thus, at the time of refund, the employee
ought not to be additionally burdened by recovery
of interest over and above the principal amount.
Therefore, from the point of view of equity, good
conscience and fair play, the amount of recovery
which the employer is liable to make based on
undertaking in writing, would be limited to the
quantum and nature of the amount promised to be
refunded in the undertaking. In this view of the
matter, it would be in the interest of justice and to
prevent undue enrichment of either of the parties,
that the quantum and nature of recovery in such
cases is limited to the quantum and nature of
recovery promised in the written undertaking to be
refunded.
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
6. From the aforesaid analysis what comes out
loud and clear is that the employer is entitled in
the face of written undertakings given by
petitioner/appellant to reocver the principal
amount of excess payment of Rs. 57,419/- but not
the interest amount of Rs.50,494/-.
7. Consequently, this Court allows the present
writ appeal to the following extent:-
(i) The impugned order 22.02.2021 passed in WP
11449/2021 by learned Single 11 WA.293.2021
Judge so far as it permits recovery of principal
amount of excess payment of Rs.57,419/- is
upheld.
(ii) The impunged order of writ court dated
22.02.2021 passed in WP 11449/2021 and the
impugned order dated 28.07.2020 vide P/1 is set
aisde to the extent it permits recovery of amount
of interest of Rs. 50,494/-.
(iii) Recovery of principal excess amount can be
made from petitioner/appellant in easy
instalments. However, if recovery of interest
amount has already been made then the same be
refunded to the petitioner/appellant forthwith.
(iv) No order as to cost."
22. Since the excess payment was not made on the basis of any
misrepresentation by the respondents and the recovery of the excess
payment after such a long time with interest would be very harsh on
the petitioners, accordingly, these writ petitions are disposed of with
the following direction:-
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
i- If the recovery has not been effected so far, then the same shall
be kept in abeyance for a period of two months from today and
the respondents shall re-calculate the excess payment made to
the petitioners by extending the benefit of circular dated 26/28-
6-1979. However, it is made clear that the ad hoc increase shall
not be included in the refixation of pay scale, as directed by the
Division Bench of this Court in para 22 of the case of Smt.
Sushma Tiwari (supra).
ii- The respondents shall also not recover any amount for the
period 1/1/2000 till 17/11/2001.
iii- The respondents shall re-assess the excess payment made to
the petitioner(s) in the light of the judgment passed by the
Supreme Court in the case of S.H. Baig (supra) and by the
Division Bench of this Court in the case of Smt. Sushma
Tiwari (supra) and a fresh order be passed.
iv- If the recovery has already been effected, then the total excess
payment made to the petitioners shall be re-calculated and if it
is found that any amount in excess of the liability of the
petitioner(s) has been recovered, then the same shall be repaid
to the petitioners.
THE HIGH COURT OF MADHYA PRADESH
WP Nos. 13264/20, 13467/20, 15532/20, 15649/20, 15751/20,
15762/20, 15942/20, 89/21, 116/21, 499/21, 1053/21, 1339/21,
1375/21, 1476/21, 2025/21, 2140/21, 2779/21, 2902/21, 3535/21,
3538/21, 4480/21, 4482/21, 5567/21, 6084/21, 7280/21, 7343/21,
7798/21, 8411/21, 8966/21, 9235/21, 9538/21, 9731/21,
11765/21, 11797/21 & 11798/21
v- It is made clear that the respondents shall not be entitled to
recover the interest on the excess payment made to the
petitioners.
vi- Interim order(s) are hereby vacated.
(G.S. Ahluwalia)
Judge
Arun*
ARUN KUMAR MISHRA
2021.12.17 19:04:49 +05'30'
