Madhya Pradesh High Court

Radheshyam Yadav vs The State Of Madhya Pradesh on 27 October, 2021

Author: Subodh Abhyankar

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  HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
                    W. P. No.23562 of 2021
          Radheshyam Yadav Vs. The State of M.P. & Ors.

Indore, Dated:- 27/10/2021
          Shri L. C. Patne, Counsel for the petitioner.

          Shri Aditya Garg, Counsel for the respondents/State, on

advance notice.

          Heard on the question of admission and grant of interim

relief.

                               ORDER

The petitioner has filed the present writ petition being

aggrieved by the orders dated 10.05.2018 (Annexure P/1),

30.11.2019 (Annexure P/2) and 19.07.2021 (Annexure P/3)

whereby respondent No.3 has initiated the recovery of the

amount paid in excess.

2. The petitioner being a non-ministerial employee was given

the benefit of increment. Now, the apex Court has upheld that the

amount was wrongly paid to the non-ministerial staff. After the

aforesaid judgment passed by the Apex Court, the State

Government has initiated the recovery against all the employees

who have been given the said benefit. At the outset, learned

counsel for the petitioner submits that the petitioner is not

challenging the recovery of the principal amount, but he

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE W. P. No.23562 of 2021 Radheshyam Yadav Vs. The State of M.P. & Ors.

aggrieved by the recovery of interest as there was no fault on the

part of he petitioner to get the increment. A similar issue came up

for consideration before this Court in several writ petitions and

all have been decided by the common order dated 17/08/2020,

passed in W.P. No.8491/2020 :-

"Indore, dated : 17.08.2020 Smt.Anjali Jamkhedkar, learned counsel for the petitioner. Shri Akhil Godha, learned Panel Advocate for the respondents/State.

Heard learned counsel for the parties through video conferencing.

ORDER

Petitioner has filed the present petition being aggrieved by the order dated 09.06.2020 passed by the respondent No.4 for recovery of interest of Rs.48,760/- from the period 06/2011 to 05/2020 @ 12% pa (Compound interest).

That the State Govt. had sanctioned ad-hoc increment of Rs.70/- per month to the nonministerial staff of the Police department. As per rule 7(i)(b)(iv) of the M.P Pay Revision Rule of 1983 the ministerial staff of the police department was not entitled to get the said ad-hoc increment of Rs.70/-.

The ministerial staff of the Police department approached the State Administrative Tribunal to claim the aforesaid benefit. After the abolition of the Tribunal, the Original Application (OA) was transferred to the High Court and reregistered as W.P. No. 3495/2001. Vide order dated 20.02.2004 this Court held that the ministerial staff of the Police department is not entitled to the ad-hoc increment of Rs.70/- and upheld the recovery from those employees who have wrongly been paid. Thereafter, a Civil Appeal No.9888-9899 of 2018 came up for consideration before the Apex Court and vide order dated 25.09.2018 the Apex Court has upheld the order of the High Court which resulted in the confirmation of the recovery of the amount already paid. In pursuant to the aforesaid order, the respondents have calculated the amount recoverable from the petitioner and accordingly recovered it by way of installments. The petitioner did not protest the said recovery and paid the

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE W. P. No.23562 of 2021 Radheshyam Yadav Vs. The State of M.P. & Ors. entire amount to the State Government by way of installments. Now vide order dated 09.06.2020 the respondents have decided to recover interest at the rate of 12% p.a. on the principal amount from the period 06/2011 to 05/2020, hence the present petitions before this Court.

After notice, respondents have filed the return by submitting that once the Apex Court has held that the ad- hoc increment of Rs.70/- was wrongly paid to the petitioner and the recovery is justified then in the light of the Circular dated 31.05.2011 the interest at the rate of 12% is liable to be recovered. The petitioner has not challenged the validity of the Circular dated 31.05.2011, therefore, the writ petition is liable to be dismissed.

The issue in respect of entitlement to get ad-hoc increment of Rs.70/- is no more res integra. Even the petitioner is not challenging the recovery of the principal amount paid as an ad-hoc increment @ Rs.70/-. The petitioner is aggrieved by the recovery of the interest part. According to the petitioner,because of the wrong interpretation, by the Department, the benefit of ad-hoc increment of Rs.70/- was passed on to the petitioner from 11/1983 to 12/2005. There is no allegation against the petitioner that he/she had ever misrepresented to get the said benefit. In the light of the order passed by the Tribunal dated 25.03.2006, the Home Department has decided not to give the said benefit to the ministerial staff. The aforesaid order was challenged before the Apex Court in which the recovery of principal amount was stayed until further orders passed in SLP No.14448- 14457/2012, therefore, recovery from the petitioner remained withheld by virtue of the Court order. Hence, the recovery of interest at the rate of 12% p.a. is not justified from the petitioner especially when the aforesaid benefit of ad-hoc increment was given by the Govt. itself and there is no allegation that the petitioner has ever misrepresented to get the benefit.

So far the Circular dated 31.05.2011 is concerned,this Circular is about the long pendency of the recovery against the Govt. employees due to inaction on the part of the competent authority. In such a case, the Govt. has decided to recover the withheld amount with interest at the rate of 12%. In clause (iv) of the said Circular, the Head of the Office has been held responsible for the delay, and such interest is liable to be recovered from the Head of the Office. In the present case, the issue in respect of entitlement of ad-hoc increment payable to the ministerial

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE W. P. No.23562 of 2021 Radheshyam Yadav Vs. The State of M.P. & Ors. staff was under litigation and there was stay on the recovery. The Apex Court has now decided the issue vide order dated 25.09.2018 that the petitioner and other ministerial employees are not entitled to claim parity of pay scale with the non-ministerial staff, hence in peculiar facts and circumstances of this case, the Circular dated 31.05.2011 does not apply.

The respondents have also submitted that the petitioner gave an undertaking for recovery of any excess payment made to him while revision of the pay. The undertaking given by the petitioner is general in nature and the same was taken from all the employees while giving the benefit of pay fixation on pay revision. The petitioner gave an undertaking in which nothing is mentioned about payment of the interest. In the present case, the undertaking was given in the year 1998 i.e. much before the Circular dated 31.05.2011, therefore, such an undertaking would not come in the way of the petitioner. In the cases of similarly placed employees, this Court had quashed the recovery of the interest vide order dated 13.09.2017 in W.P. No.826/2017. Against the said order Writ Appeal No.120/2018 was filed by the State of M.P. Vide order dated 06.08.2018 the writ appeal has also been dismissed mainly on the ground that the employees were not at fault to get the excess payment,therefore, they are not liable to pay interest on recovery of the amount.

In view of the foregoing discussion, the petition is allowed. The impugned order is quashed. Any amount recovered under the head of interest be returned to the petitioner."

3. That the petitioner being the ministerial staff of the police

department was not entitled to get the said ad-hoc increment, but

the same was given to him along with others by the department

itself, hence, recovery of the interest is not justified.

4. Because of the above, this petition is allowed and the order

dated 17/08/2020, passed in W.P. No.8491/2020 shall apply to

this petition mutatis mutandis. The recovery of the principal

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE W. P. No.23562 of 2021 Radheshyam Yadav Vs. The State of M.P. & Ors.

amount is upheld but the recovery of the interest part is quashed,

any amount already recovered as interest be return to the

petitioner.

5. No order as to costs.