Durga Prasad Javaria vs The State Of Madhya Pradesh
2021 Latest Caselaw 7355 MP

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                  THE HIGH COURT OF MADHYA PRADESH

                                 W.P No. 78/2019
              (Durga Prasad Javaria Vs. The State of Madhya Pradesh)

Jabalpur, Dated: 12/11/2021
       Shri Karamjeet Singh Wadhwa , learned counsel for the petitioner.

       Shri    Pushpendra     Verma,    learned    Panel    Lawyer     for   the

respondent/State.

Petitioner is aggrieved of the order directing recovery of sum of

Rs.2,59,288/- from the pension of the petitioner and therefore prays for

quashing of order dated 18/03/2016 passed by the Chief Medical &

Health Officer, Chhindwara directing the said recovery from the

petitioner after petitioner attaining the age of superannuation.

Petitioner's contention is that petitioner was appointed as a driver

at Primary Health Centre, Harrai, District Chhindwara vide order dated

22/12/1977 in the pay scale of Rs.155-2 1/2-160-4-80-EB-5-240-6-252.

Petitioner attained the age of superannuation on 31/08/2012.

After superannuation vide communication dated 12/12/2012 he was

informed that his salary was wrongly fixed and accordingly order for

recovery of sum of Rs.2,592,288/- was passed against the petitioner and

recovery has already been made from the petitioner's retiral benefits as

is notified by the CMO vide order dated 18/03/2016.

Learned counsel for the petitioner submits that petitioner had

earlier filed W.P No. 1010/2015, which was disposed of vide order dated

27/03/2015 disposing of writ petition with a direction to the respondents

to give notice to the petitioner and pass a fresh order after hearing the

petitioner within a period of six weeks.

THE HIGH COURT OF MADHYA PRADESH

W.P No. 78/2019 (Durga Prasad Javaria Vs. The State of Madhya Pradesh)

Learned counsel for the respondents on other hand submits

that State has filed it's return. This is third round of litigation for the

petitioner. Petitioner was working as a driver under respondent no.2. He

had earlier filed W.P No. 1010/2015, which was disposed of by directing

the answering respondents to pass a fresh order after giving an

opportunity of hearing to the petitioner.

It is submitted that against this order petitioner had filed a W.A

No. 548/2015 assailing the order passed in W.P No. 1010/2015 directing

the authorities to afford an opportunity of hearing to the petitioner and

pass reasoned order. This W.A was disposed of.

It is submitted that concealing this fact, instant writ petition has

been filed but the fact of the matter is that objection was taken by the

District Pension Officer in respect of incorrect fixation and sanction of

pay scale w.e.f 22/12/1977 till 22/12/1986 and as per objections raised

by the Pension Officer, mistake has been rectified and aforesaid

recovery has been ordered.

Learned counsel for the petitioner placing reliance on the

judgment of Hon'ble Supreme Court in case of State of Punjab and

others Vs. Rafiq Masih (White Washer) and others (2015)4 SCC

334 submits that though Sahib Ram (supra) has been distinguish but

the fact of the matter that though respondents are entitled to correct

the incorrect pay fixation but in terms of the provisions contained in

para 18 of the said judgment in case of Rafiq Masih no recovery can be

made from the employee belonging to Class-III and Class-IV services

THE HIGH COURT OF MADHYA PRADESH

W.P No. 78/2019 (Durga Prasad Javaria Vs. The State of Madhya Pradesh)

(Group-C and Group-D services). This preposition putforth by learned

counsel for the petitioner could not be disputed by learned Panel

Lawyer appearing for the State.

After hearing learned counsel for the parties, it is evident from

record that under similar facts and circumstances, W.A No. 404/2008

was allowed vide order dated 30/06/2008 placing reliance on the

judgment of Hon'ble Supreme Court in case of Sahib Ram Vs. State of

Haryana 1995 Supplementary (1) SCC 18, wherein a principle has

been laid down that once amount has been paid and there was no fraud

or misrepresentation, mistake can be rectified from the date it is noticed

in aforesaid facts and circumstance while allowing the writ appeal

Hon'ble Division Bench of this Court set aside the impugned order

directing the recovery of Rs.38,230/- from the petitioner.

Thus, it is evident that petitioner retired from the post of Driver,

which is a Class-III/Class-IV post was allowed to draw his salary till

2012 on the basis of alleged incorrect pay fixation made in the year

1977, which continues upto the year 1986 i.e long 9 years, though can

be corrected but no recovery can be made in the light of law laid down

by Hon'ble Supreme Court in case of Rafiq Masih (supra). Therefore this

writ petition can be disposed of with a direction and by holding that

recovery already made from the petitioner is bad in law in terms of the

law laid down by Hon'ble Supreme Court in case of Rafiq Masih (supra).

It is further held that respondents are entitled to carry out pay fixation

after affording opportunity of hearing to the petitioner which has been

THE HIGH COURT OF MADHYA PRADESH

W.P No. 78/2019 (Durga Prasad Javaria Vs. The State of Madhya Pradesh)

concluded and petitioner will be entitled to retiral benefits and pension

in terms of such pay fixation but since no recovery could be made from

the petitioner, it is hereby quashed. Respondents are directed to refund

the amount of recovery made from the petitioner's retiral benefits or

from the pension within 60 days from the date of communication of this

Court order, failing which it shall earn interest @ 8 percent per annum.

In above terms, petition is disposed of.

(Vivek Agarwal) Judge

Digitally Tarun/- signed by TARUN KUMAR SALUNKE Date: 2021.11.17 17:03:29 +05'30'