Rajnish Dwivedi vs The State Of Madhya Pradesh
2022 Latest Caselaw 3227 MP

                                                         W.P. No. 16193/2017
                                  1

        IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR

                                 BEFORE

           HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI

                        ON THE 8th OF MARCH, 2022




                    WRIT PETITION No. 16193 of 2017

     Between:-
     RAJNISH DWIVEDI S/O SHRI BALWANT
     PRASAD DWIVEDI, AGED ABOUT 60
     YEARS, WORKING AS HEAD CLERK IN
     THE OFFICE OF JOINT DIRECTOR
     PUBLIC INSTRUCTION, REWA, DIVISION
     REWA (MADHYA PRADESH)
                                                          .....PETITIONER
     (SHRI VINAY SINGH, LEARNED COUNSEL FOR THE PETITIONER)

     AND

   THE STATE OF MADHYA PRADESH
   THROUGH     SECRETARY,    SCHOOL
   EDUCATION            DEPARTMENT,
1.
   MANTRALAYA,    VALLABH   BHAWAN,
   BHOPAL (MADHYA PRADESH)

   COMMISSIONER           PUBLIC
   INSTRUCTIONS, MADHYA PRADESH,
2. GAUTAM NAGAR BHOPAL (MADHYA
   PRADESH)

   JOINT      DIRECTOR,       PUBLIC
   INSTRUCTIONS, REWA DIVISION REWA
3.
   (MADHYA PRADESH)

   JOINT     DIRECTOR,     TREASURY,
   ACCOUNTS     &   PENSION,  REWA,
4.
   DISTRICT REWA (MADHYA PRADESH)

     DISTRICT EDUCATION OFFICER REWA,
5.
     DISTRICT REWA (MADHYA PRADESH)
                                                       .....RESPONDENTS
     (SHRI ADITYA KHANDEKAR, LEARNED PANEL LAWYER FOR THE
     RESPONDENTS/STATE)


      This petition coming on for admission this day, the court passed the
following:
                                                                    W.P. No. 16193/2017
                                        2

                                       ORDER

With the consent of learned counsel for the parties, the matter is heard finally.

1. In this petition under Article 226 of the Constitution of India, the petitioner has assailed the order dated 18.08.2017 (Annexure-P/5) whereby the pay scale of Rs.5000-150-8000/- published in the order dated 13.04.2000 has been modified to that of 4500-125-7000/- on the ground of clerical mistake. The petitioner has also assailed the order dated 28.09.2017 (Annexure-P/9) whereby recovery of access amount paid towards wrong pay fixation is short to be recovered.

2. The brief facts giving rise to filing of present petition is that the petitioner was promoted on the post of Head Clerk vide order dated 29.03.2003 and was extended the benefit of revised pay scale of Rs.5000-8000/- w.e.f. 29.03.2003 as per the Madhya Pradesh Revision of Pay Rules, 1998. However, after a lapse of 14 years, respondent No. 2 vide order impugned dated 18.08.2017 has modified the pay scale to that of Rs. 4500-7000/- and it has been directed to recover the access amount from the petitioner.

3. Learned counsel for the petitioner submits that the Pay Scale of Rs. 5000- 8000/- was sanctioned to the petitioner pursuant to coming into force of Madhya Pradesh Revision of Pay Rules, 1998. The petitioner is a Class-III employee and has attained the age of superannuation on 31.10.2017. The petitioner was neither found guilty of any misconduct nor held guilty for any offence in the criminal proceedings. The inaction on the part of the respondents is in flagrant violation of principal of natural justice. It is further contended that the difference amount cannot be recovered from the petitioner because there is no misrepresentation or fault on his part. The said recovery has been done without prior approval of the Governor which is violation of Rule 9 of the Pension Rules, 1976. It is also contended that the recovery is contrary to the circular dated 31.03.2016 issued by the State Government. He further relied on the judgment passed by the Apex Court in the case of State of Punjab Vs. Rafiq Masih (White Washer), (2015) 1 M.P.H.T 130 (SC), in which the Apex Court has held that no recovery can be W.P. No. 16193/2017

effected from the retiral dues of the employee after his retirement. In view of the above, it is prayed that recovery of the difference amount from the petitioner needs to be refunded along with interest.

4. On the other hand, learned counsel for the respondents/State by filing return contended that if any mistake is committed by them in fixation of pay scale, the said mistake can be rectified at any time. It is clear that the pay scale of Rs.5000- 8000/- was not available to the Head Clerk but under some misconception, the same was granted, therefore, the impugned order was passed modifying the pay scale. The petitioner very well knew that the pay fixation has wrongly been done, therefore, he ought to have pointed out the same to the competent authority; but, he remained silent and received the excess amount, therefore, the recovery is liable to be made.

5. The Hon'ble Supreme Court in the case of Syed Abdul Qadir and others Vs State of Bihar and others, reported in (2009) 3 SCC 475, has held as under with regard to right of the employer to recover the excess amount paid to an employee on account of wrong fixation of pay;-

"The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recover of the amount paid in excess. (Para. 58) 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 the 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 W.P. No. 16193/2017

was applicable to them, for which the appellants can not 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 Court's 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." (Paras 59 to 61)

6. In the case of State of Punjab and Others etc. Vs. Rafiq Masih(White Washer) etc. (supra) it was contended that out of several contingencies specified in the said judgment, the petitioner comes within the category of Class III employee and the recovery from retired employee, or employees who are due to retire within one year of the order of recovery, therefore, the said recovery is not

permissible. The relevant extract is reproduced below:-

"12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:-

(i) Recovery from employees belonging to Class III and Class IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

W.P. No. 16193/2017

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

7. From the facts of the case, it is clear that the pay scale of the petitioner was fixed by the respondents without there being any misrepresentation or fraud on the part of the petitioner. There is no allegation that the same was fixed due to the connivance with anybody. No undertaking whatsoever was given by the petitioner with regard to recovery of amount on account of wrong fixation. Therefore, as per the principle of law laid down by the Apex Court in the case of State of Punjab Vs. Rafiq Masih (White Washer) (supra) and Syed Abdul Qadir (supra), recovery cannot be effected from the petitioner.

8. Consequently, the petition is allowed. The impugned orders dated 18.08.2017 (Annexure-P/5) and dated 28.09.2017 (Annexure-P/9) are hereby set aside. The respondents are directed to refund the amount already recovered from the petitioner within a period of three months from the date of receipt of certified copy of the order. In case, the amount is not refunded within the aforesaid period, the same shall carry interest @ 6 % per annum till the date of actual payment.

9. No order as to costs.

(S.A. DHARMADHIKARI) JUDGE ashish Digitally signed by ASHISH KUMAR LILHARE Date: 2022.03.10 17:20:07 +05'30'