Madhya Pradesh High Court
The State Of Madhya Pradesh vs Ghanshyam Das Ahirwar on 8 September, 2021
Author: Chief Justice
1 WA-598-2021
The High Court Of Madhya Pradesh
WA-598-2021
(THE STATE OF MADHYA PRADESH AND OTHERS Vs GHANSHYAM DAS AHIRWAR)
Jabalpur, Dated : 08-09-2021
Heard through Video Conferencing.
Per : Vijay Kumar Shukla, J.
Shri Darshan Soni, learned Government Advocate for the
appellants/State.
Shri Manoj Kumar Chansoriya, learned counsel for the respondent.
The present appeal has been filed under Section 2(1) of the Madhya
Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005
being aggrieved by the order dated 16.10.2019 passed by the learned Single
Judge in W.P. No.22693/2017 (Ghanshyam Das Ahirwar vs. State of M.P. &
Ors.) whereby the learned Single Judge has set aside the order dated
12.10.2017 and the consequential action of recovery. It has been further
directed that the amount if any recovered from the petitioner on the basis of
the impugned order be refunded to the petitioner within a period of 60 days
from the date of receipt of certified copy of this order. The learned Single
Judge further directed that if the said amount is paid after 60 days, it will carry
an interest at the rate of 12% till the date the actual payment is made.
The respondent/writ petitioner filed a petition under Article 226 of the
Constitution of India challenging the order dated 12.10.2017 whereby
recovery has been directed on the basis of objection raised by the Joint
Director, Accounts, Treasury and Pension, Sagar Division, Sagar.
Briefly stated relevant facts are that respondent/writ petitioner was
appointed as Assistant Grade II on 26.10.1979. He passed Hindi Typing
examination on 04.08.1983 and was thereafter vide order dated 13.12.1985
granted regular pay scale with effect from 20.09.1982 and the respondents
have thereafter granted the benefit of time bound pay scale to the petitioner
from the date of initial appointment, i.e. 26.10.1979. He retired from service
with effect from 03.09.2017, on attaining the age of superannuation. The
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Treasury Officer, after retirement of the petitioner made an endorsement in the
service book that grant of pay scale from initial date of appointment was
incorrect as his service period is to be counted with effect from 20.09.1982
and directed to recover the excess amount of Rs.1,44,583/- paid to the
petitioner from 28.10.2003 onwards.
Learned counsel for the respondent/writ petitioner raised two fold
submissions. Firstly, it is submitted that the petitioner was granted the benefit
of time bound pay scale by the order of Collector, Chhatarpur dated
27.11.2004, with effect from 28.10.2003 by counting service from the date of
his initial appointment i.e. w.e.f. 26.10.1979. This order has become final,
hence the action of respondents in directing recovery of the said amount is
arbitrary and illegal. Secondly, after retirement of the petitioner, no recovery
can be made in view of the judgment of the Supreme Court in the case of
State of Punjab and others vs. Rafiq Masih (White Washer) and others
(2015) 4 SCC 334.
Learned counsel for the appellants submitted that the initial date of
appointment of the respondent/writ petitioner was 20.09.1982, when he
passed the Hindi Typing Examination and not 26.10.1979, as earlier he was
appointed only for a limited purpose. It is argued that as per the policy of the
State Government, the aforesaid benefit ought to have been granted after
completion of 24 years of regular service, but the same was granted
computing the service of the petitioner from 26.10.1979 instead of
20.09.1982. It is further stated that at the time of preparation of the pension
papers, this anomaly was pointed out by the respondent No.3 that benefit of
time bound pay scale has been wrongly extended to the petitioner, therefore,
the recovery has been imposed on petitioner, making the correct fixation. It
is stated that since the mistake was detected and corrected, the petitioner is
bound to repay the excess amount received by him.
Learned Single Judge has perused the service book (Ex.P-5) and found
that the benefit of time bound pay scale of Rs.4500-125-7000/- was given to
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the petitioner by the order of Collector No.195/Sta/104 dated 27.11.2004,
with effect from 28.10.2003, taking the initial date of appointment as
26.10.1979. This order passed by the Collector was never modified or set
aside by any competent authority. After retirement of the petitioner, the Joint
Director, Treasury had no authority to act as an appellate authority and to
take away the benefit of the order, which was never cancelled, modified or set
aside. Since, the order dated 27.11.2004 has attained finality, the benefit
arising out of the said order cannot be withdrawn by the Treasury. Learned
Single Judge has also referred the judgment passed by the Full Bench in the
case of Manoj Kumar vs. State of M.P. 2016(1) MPLJ 449.
We have heard learned counsel for the parties.
From the record, it is vivid that the petitioner was appointed on the
post of Assistant Grade II by order dated 26.10.1979. His letter of
appointment is silent with regard to the condition of passing Hindi Typing
Test. The service rule in this regard are also not placed on record. However,
petitioner was granted regular pay scale with effect from 20.09.1982, pursuant
to the directions contained in the circular dated 27.04.1970. This circular has
been further clarified by the State Government by letter/order dated
07.11.2009 whereby all the government departments were directed that for the
purpose of grant of time bound pay scale, the period of service should be
calculated from the date of initial appointment.
In view of the aforesaid, we do not find any illegality or perversity in
the order passed by the learned Single Judge whereby the recovery has been
quashed in the light of the judgment passed by the Supreme Court in the case
of Rafiq Masih (supra).
Accordingly, the writ appeal is dismissed.
(MOHAMMAD RAFIQ) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
PK
Digitally signed
by PARITOSH
KUMAR
Date: 2021.09.13
14:21:26 +05'30'
4 WA-598-2021
