Dr. Indumati Vishwakarma vs The State Of Madhya Pradesh
2023 Latest Caselaw 12158 MP

                                                             1
                            IN    THE        HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                        BEFORE
                                        HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                                 ON THE 1 st OF AUGUST, 2023
                                                WRIT PETITION No. 843 of 2022

                           BETWEEN:-
                           DR. INDUMATI VISHWAKARMA W/O LATE SHRI DR.
                           ARUN VISHWAKARMA, AGED ABOUT 71 YEARS,
                           OCCUPATION: RETD. MEDICAL OFFICER PRESENTLY
                           POSTED AS MEDICAL OFFICER COVIDE SECTION
                           VICORIA HOSPIAL JABALPUR (MADHYA PRADESH)

                                                                                          .....PETITIONER
                           (BY SHRI PRAVEEN KUMAR VERMA - ADVOCATE)

                           AND
                           1.    THE STATE OF MADHYA PRADESH THR.
                                 PRINCIPAL SECRETARY PUBLIC HEALTH AND
                                 FAMILY WELFARE DEPT. VALLABH BHAWAN
                                 BHOPAL (MADHYA PRADESH)

                           2.    COMMISSIONER HEALTH             SERVICES BHOPAL
                                 (MADHYA PRADESH)

                           3.    S U P E R I N T E N D E N T RANI DURGAWATI
                                 CHIKITSALAYA (NURSING COLLEGE) JABALPUR
                                 (MADHYA PRADESH)

                           4.    JOINT DIRECTOR DIRECTORATE OF TREASURY
                                 AND ACCOUNTS DISTRICT JABALPUR (MADHYA
                                 PRADESH)

                                                                                       .....RESPONDENTS
                           (BY SHRI K.V.S. SUNIL RAO - ADVOCATE )

                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                              ORDER

The petitioner has filed this petition assailing the order dated

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06.07.2020 (Annexure-P/12).

2. Learned counsel for the petitioner contends that the right of the respondent to file return is closed as vide order dated 14.07.2023, this Court granted three weeks time to the State to file reply as a last indulgence but as of now no reply has been filed.

3. Learned counsel for the petitioner contends that on 22.06.2004, the department had fixed the date of release of the first Kramonnati of the petitioner i.e. 01.12.1999. Later on, an amended order dated 02.07.2004 was issued and the effective date for award of Karmonnati was modified to 01.12.2002. In the meantime, the petitioner stood superannuated on 29.02.2020.

4. After the retirement of the petitioner, a communication dated 06.07.2020 (Annexure-P/12) was issued and by the said communication, it was informed to the petitioner that the benefit of Kramonnati which was made available to the petitioner w.e.f. 01.12.1999 was in fact available w.e.f. 22.11.2002, therefore, the excess payment which has resulted on account of the aforesaid anomaly was required to be recovered from the petitioner. Accordingly, the petitioner was intimated vide impugned order dated 06.07.2020 that a sum of Rs.6,99,628/- as principal and Rs.41,634/- towards interest is to be recovered from the petitioner.

5. Learned counsel for the petitioner contends that the issue in question, requires no debate in view of the law laid down by the Apex Court in the case of M.P. Medical Officers Association vs. The State of M.P. & Ors. (Civil Appeal No.5527/2022).

6. It is contended by the counsel that the Apex Court has taken into consideration the aspect of circular dated 23.05.2009 issued by the Department of General Administration. It is contended by the counsel that the benefits of Signature Not Verified Signed by: MANOJ NAIR Signing time: 05-08-2023 11:26:14

Kramonnati were made available on the basis of a circular dated 23.05.2009 and later on, by the subsequent communications, the said benefit was sought to be withdrawn. Therefore, the counsel contends that as the benefits were not made available to the petitioner on account of any fraud or misrepresentation on the part of the petitioner, the same could not have been withdrawn on the strength of the impugned order dated 06.07.2020 (Annexure-P/12).

7. It is further contended by the counsel that in view of the law laid down by the Apex Court in the case of M.P. Medical Officers Association (supra), no recovery could have been inflicted against the petitioner after his retirement.

8. Learned counsel for the respondent has again prayed for time to file reply. However, in view of the order dated 14.07.2023, the prayer is rejected.

9. Having heard the submissions advanced on behalf of the petitioner, a perusal of the impugned order dated 06.07.2020 (Annexure-P/12) reflects that benefit of extension of Kramonnati which was made available to the petitioner w.e.f. 01.12.1999 was later on found to be admissible w.e.f. 22.11.2002. Resultantly, the said benefits which were made available to the petitioner, are being sought to be withdrawn.

10. The order which is contained in Annexure-P/2 reflects that the

petitioner paid the said amount of recovery as, only upon making payment of the said amount, the remaining retiral dues of the petitioner were to be disbursed. The entire order dated 06.07.2020 (Annexure-P/12) does not refer to any kind of undertaking or indemnity bond by the petitioner.

11. The Apex Court while considering the identical issue in the case

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of M.P. Medical Officers Association (supra) held in paragraph 5 as under:-

It is not in dispute that the members of the appellant association, who were serving as Specialists, Dental Specialists and officers in the specialist's cadre got the benefits under the circular dated 23.05.2009. It was the Department/State, who issued the circular dated 23.05.2009 and paid the benefits under the circular dated 23.05.2009 to the members of the appellant association, which subsequently came to be withdrawn by the State in the year 2012. Therefore, as such, there was neither any misrepresentation on the part of the concerned employees - members of the appellant association nor can the mistake be attributed to them. The mistake, if any, can be said to be that of the Department/State, who issued the circular dated 23.05.2009 under which the members of the association were given certain benefits till the same was withdrawn in the year 2012. Therefore, in the peculiar facts and circumstances of the case, the State was not justified in ordering recovery of the excess amount paid along with the interest. It is true that stricto sensu, the decision of this Court in the case of State of Punjab and others Vs. Rafiq Masih, (2015) 4 SCC 334 may not be applicable.

However, at the same time, as observed hereinabove, and in the facts and circumstances of the case, the State Signature Not Verified Signed by: MANOJ NAIR Signing time: 05-08-2023 11:26:14

was not justified in ordering recovery of the excess amount paid with interest, more particularly, when it is reported that some of the doctors/dentists - members of the association have retired on attaining the age of superannuation and the recovery shall be from their pension/pensionary benefits. However, at the same time, their pay fixation and the pension shall have to be as per the order dated 26.08.2008.

12. The Apex Court while dealing with the identical issue, considered the aspect of absence of any misrepresentation on the part of the concerned employee. The Court also considered the aspect that the benefits which were extended by the Government itself were later on sought to be withdrawn in view of the subsequent decision. Accordingly, the Apex Court while considering the aspect of recovery of the amount from the pensionery benefits of the employee concerned, directed that there would not be any recovery of the excess amount paid to the employee concerned.

13. The judgment of the Apex Court in the considered view of this Court is squarely applicable to the fact of the case in hand. The petitioner having been superannuated on 29.02.2020 has been confronted with the impugned order dated 06.07.2020 (Annexure-P/12). The impugned order does not attribute any misrepresentation on the part of the petitioner on the contrary, itself refers to some mistake of the Department regarding the extension of benefit with a retrospective date. Therefore, the impugned order in the light of the order passed by the Apex Court in the case of Medical Officer unsustainable and accordingly, quashed.

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14. The respondents are directed to forthwith refund the amount of Rs.7,41,262/- to the petitioner with interest @ 6% per annum within a period of 90 days from today.

15. Accordingly, the petition stands allowed.

(MANINDER S. BHATTI) JUDGE mn

Signature Not Verified Signed by: MANOJ NAIR Signing time: 05-08-2023 11:26:14