Madhya Pradesh High Court
Vishnu Prasad (Verma) Ahirwa vs The State Of Madhya Pradesh on 16 August, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
JUSTICE SUJOY PAUL
ON THE 16th OF AUGUST, 2023
WRIT PETITION No.8283 of 2018
BETWEEN :-
HARI NARAYAN NAMDEO S/O LATE H.L.
NAMDEO, AGED ABOUT 72 YEARS,
OCCUPATION: RETD. SUBEDAR (M). O/O S.P.
OFFICE RAISEN, R/O. NEAR COLLECTORATE
OFFICE, NAMDEO KIRANA STORE SAHCHI
ROAD RAISEN RAISEN (MADHYA PRADESH)
......PETITIONER
(BY SHRI ATUL KUMAR RAI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH SECRETARY HOME POLICE
DEPARTMENT VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. DIRECTOR GENERAL OF POLICE,
POLICE HEADQUARTERS,
JAHAGIRABAD BHOPAL (MADHYA
PRADESH)
3. SUPERINTENDANT OF POLICE, POLICE
HEADQUARTERS RAISEN (MADHYA
PRADESH)
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 8/18/2023
4:51:39 PM
2
4. ACCOUNTANT GENERAL OF M.P.
LEKHA BHAWAN, JHANSI ROAD,
GWALIOR (MADHYA PRADESH)
5. JOINT DIRECTOR, DIRECTORATE OF
ACCOUNT TREASURY AND PENSION
DISTRICT - RAISEN (MADHYA
PRADESH)
6. TREASURY OFFICER, ACCOUNT
TREASURY & PENSION
COLLECTORATE PROMISES, DISTRICT
RAISEN (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PRANJAL DIWAKAR - PANEL LAWYER)
WRIT PETITION No.14066 of 2020
BETWEEN :-
RAGHUBIR SINGH YADAV (NO.450) S/O LATE
SHRI BALRAM SINGH YADAV, AGED ABOUT 60
YEARS, OCCUPATION: CONSTABLE O/O S.P.
OFFICE SEHORE, AT PRESENT ATTACHED AT
ADJ COURT BUDNI, DISTRICT SEHORE R/O
POLICE COLONY BUDNI DISTRICT SEHORE
(MADHYA PRADESH)
......PETITIONER
(BY SHRI ATUL KUMAR RAI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH SECRETARY HOME POLICE
DEPARTMENT, VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 8/18/2023
4:51:39 PM
3
2. DIRECTOR GENERAL OF POLICE,
POLICE HEADQUARTERS
JAHANGIRABAD DISTRICT BHOPAL
(MADHYA PRADESH)
3. SUPERINTENDENT OF POLICE, S.P.
OFFICE SEHORE, DISTRICT SEHORE
(MADHYA PRADESH)
4. ADDI. SUPERINTENDENT OF POLICE,
S.P. OFFICE SEHORE, DISTRICT
SEHORE (MADHYA PRADESH)
5. DISTRICT TREASURY OFFICER,
ACCOUNT AND TREASURY,
COLLECTORATE DISTRICT SEHORE
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PRANJAL DIWAKAR - PANEL LAWYER)
WRIT PETITION No.15877 of 2020
BETWEEN :-
VISHNU PRASAD (VERMA) AHIRWA S/O LATE
SHRI C.P. VERMA AHIRWAR, AGED ABOUT 63
YEARS, OCCUPATION: RETD. S.I. O/O S.P.
OFFICE SAGAR, AT PRESENT R/O BHOPAL
ROAD PITAL FACTORY, MOTI NAGAR SAGAR
(MADHYA PRADESH)
......PETITIONER
(BY SHRI ATUL KUMAR RAI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH SECRETARY HOME POLICE
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 8/18/2023
4:51:39 PM
4
DEPARTMENT VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. STATE OF M.P. THROUGH SECRETARY
FINANCE DEPARTMENT VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
3. DIRECTOR GENERAL OF POLICE,
POLICE HEADQUARTERS
JAHAGIRABAD, BHOPAL (MADHYA
PRADESH)
4. SUPERINTENDANT OF POLICE, POLICE
HEADQUARTERS DISTRICT SAGAR
(MADHYA PRADESH)
5. JOINT DIRECTOR, DIRECTORATE OF
TREASURY AND ACCOUNTS PENSION,
DISTRICT - SAGAR (MADHYA
PRADESH)
6. DISTRICT PENSION OFFICER,
DIRECTORATE OF TREASURY AND
ACCOUNTS PENSION, COLLECTORATE
PREMISES SAGAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PRANJAL DIWAKAR - PANEL LAWYER)
------------------------------------------------------------------------------------
These writ petitions coming on for admission this day,
JUSTICE SUJOY PAUL passed the following :
ORDER
Regard being had to the similitude of legal questions involved,
on the joint request of the parties, matters are analogously heard and
decided by this common order.
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 8/18/2023
4:51:39 PM
W.P. No.8283 of 2018 :-
2. This petitioner is challenging the impugned order dated
30.01.2018 whereby an amount of Rs.2,49,975/- is sought to be
recovered from the petitioner. The recovery is being made w.e.f.
01.05.2011. In other words, the excess payment made w.e.f.
2011/2012 is sought to be recovered.
W.P. No.14066 of 2020 :-
3. Vide impugned order dated 20.06.2020 (Annexure P-1) and
23.07.2020 (Annexure P-2), an amount of Rs.3,44,310/- is sought to
be recovered from September, 1992 whereas undertaking for
recovery is taken vide order dated 05.07.2009 (Annexure R-3)
W.P. No.15877 of 2020 :-
4. The petitioner has challenged the impugned order dated
10.07.2020 whereby a recovery of Rs.2,93,521/- with interest is
sought to be made w.e.f. July, 2007 whereas undertaking was
taken on 20.07.2009 (Annexure R-5).
5. The bone of contention of learned counsel for the petitioners
is that undertaking taken subsequently i.e. after revision of Pay
Scale cannot become reason to make recovery. Thus, Rule 65 of
M.P. Civil Services (Pension) Rules, 1976 is of no help to the
respondents.
6. Shri Atul Kumar Rai, learned counsel for the petitioners
placed reliance on the order passed by Coordinate Benches in W.P.
No.18803 of 2016 (Surendra Singh Thakur vs. State of M.P. &
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 8/18/2023
4:51:39 PM
others) and W.P. No.27375 of 2021 (Mohan Verma vs. State of
M.P. & others).
7. Per contra, Shri Pranjal Diwakar, learned Panel Lawyer for
the State supported the impugned orders and urged that after
having given undertakings enabling the employee to recovery the
erroneous/excess payment, petitioners cannot escape from
recovery. No other point is pressed by learned counsel for the
parties.
8. I have heard the parties at length and perused the record.
9. In Surendra Singh Thakur (supra), the Coordinate Bench
opined as under :-
"17. True it is that Rule 65 of the 1966 Rules
empowers the Competent Authority to recover
ascertainable dues from the government but the
decision of the Apex Court in the case of Rafiq
Masih (supra) has clearly prohibited recovery from
the retired employee or employees retiring within one
year. Moreso, when the Apex Court distinguished the
decision of Rafiq Masih (supra) in the case of
Jagdev Singh (supra), it was only because the Apex
Court found in the case before it that employee
therein opted for refunding the excess payment by
furnishing undertaking at the time when the excess
payment was made by way of pay revision.
18. Thus, the crucial aspect herein is as to whether the
employer had obtained any written undertaking from
the petitioner at the time of revising the pay-scale
(w.e.f. 01.01.2006) which led to excess payment, and
the nature of undertaking submitted by petitioner.
19. In the instant case, the petitioner attained the age
of superannuation on 31.03.2016; whereas, the excess
payment was made vide order dated 28.01.2016 while
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 8/18/2023
4:51:39 PM
there is nothing on record to show that on or before
28.01.2016, the employer had taken any written
undertaking from the petitioner.
20. Not having done so, the respondents herein are
estopped from effecting the impugned recovery. As
explained above, neither the plea of petitioner having
furnished "Indemnity Bond" at the time of retirement,
nor the provision of Rule 65 of M.P. Civil Service
(Pension) Rules 1976, can be of any assistance to the
State and its functionaries.
21. In the conspectus of above discussion, this Court
has no manner of doubt that the recovery sought to be
made by the impugned order is liable to be set aside."
10. Another Coordinate Bench in Mohan Verma (supra)
followed the above judgment and held as under :-
"9. The co-ordinate bench of this Court in
W.P.No.18803/2016 (S.S. Thakur Vs. State of M.P.
and others) held that the undertaking has to be
executed at the time of revision of pay scale which
was availed by the concerned employees. This Court,
held in paragraphs 18, 19 and 20 as under:-
18. Thus, the crucial aspect herein is as
to whether the employer had obtained any
written undertaking from the petitioner at the
time of revising the pay-scale (w.e.f. 01.01.2006)
which led to excess payment, and the nature of
undertaking submitted by petitioner.
19. In the instant case, the petitioner
attained the age of superannuation on
31.03.2016; whereas, the excess payment was
made vide order dated 28.01.2016 while there is
nothing on record to show that on or before
28.01.2016, the employer had taken any written
undertaking from the petitioner.
20. Not having done so, the respondents
herein are estopped from effecting the impugned
recovery. As explained above, neither the plea of
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 8/18/2023
4:51:39 PM
petitioner having furnished "Indemnity Bond"
at the time of retirement, nor the provision of
Rule 65 of M.P. Civil Service (Pension) Rules
1976, can be of any assistance to the State and
its functionaries.
10. This Court in Manak Lal Sahu Vs. State of
Madhya Pradesh in Writ Petition No.62/2017 held as
under:-
In the present case, the recovery has been
proposed after the date of superannuation while
issuing Pension Cover Sheet (Annexure-P/1).
The recovery as per return of the respondents is
consequence of incorrect pay-fixation of the
petitioner in the scale of pay of Rs. 5200-20200/-
w.e.f. 01-01-2006. Along with the return, there is
one indemnity bond, which is contained in
Annexure-R/1, which is said to be executed on
09-06-2016. Therefore, undisputedly, the said
indemnity bond was executed by the petitioner
just before 21 days of his superannuation,as he
was superannuated on 30-06-2016. Annexure-
R/2 which is also brought on record, contains an
undertaking which is also executed by the
employee while seeking extension of retiral dues.
There is no document on record to show that at
the time of extension of benefit of pay-fixation
w.e.f. 01-01-1996 any undertaking or indemnity
bond was executed by the petitioner.
In view of the aforesaid, as the
respondents have failed to demonstrate that any
undertaking was executed by the petitioner in
the year 2006 when the benefit of pay-fixation
was availed of by the petitioner, the respondents
on the strength of indemnity bond executed at
the time of retirement by the petitioner, cannot
recover any amount from the petitioner.
11. Thus, the aforesaid analysis makes it abundantly
clear that at the time of availing the benefit in the
year 2003 no undertaking or indemnity bond was
executed by the petitioner. Under the garb of the
Indemnity bond as well as undertaking which were
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 8/18/2023
4:51:39 PM
executed by the petitioner in the year 2017, the
respondents were not justified in issuing the order
impugned contained in Annexure P-1 and P-2.
12. In view of the law laid down by the Apex Court in
the case of Rafiq Masih (Supra) the impugned order
passed by the respondents being unsustainable,
deserves to be quashed.
13. Accordingly, the impugned order contained in
Annexure P-1 and P-2 stands quashed. The amount
already recovered on the strength of impugned order
contained in Annexure P-1 and P-2 shall be refunded
to the petitioner within a period of 90 days from the
date of production of certified copy of this order,
failing which, the same will carry interest @ 6%.
14. With the aforesaid, the petition stands disposed
of."
11. As noticed above, in these cases, the revision of pay is prior
in time than the undertaking given. Thus, undertaking is of no
assistance to the Department. In the light of principles laid down
by Supreme Court in (2015) 4 SCC 334 (State of Punjab vs.
Rafiq Masih) which is followed in Surendra Singh Thakur
(supra) and Mohan Verma (supra), impugned orders of recovery
cannot sustain judicial scrutiny. The recovery from low paid Class-
III/Class-IV employees is not permissible. Moreso, when
petitioner of W.P. No.8283 of 2018 is already retired.
12. As a consequence, impugned orders in W.P. No.8283 of
2018, W.P. No.14066 of 2020 and W.P. No.15877 of 2020 dated
30.01.2018, 20.06.2020 and 10.07.2020 respectively are set aside.
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 8/18/2023
4:51:39 PM
13. The recovery (if any) made from the petitioners shall be
refunded to the petitioners within three months, failing which it
will carry 6% interest till actual payment.
14. The Petitions are allowed to the extent indicated above.
(SUJOY PAUL)
JUDGE
HK
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 8/18/2023
4:51:39 PM
