Nemichand Sankhla vs Department Of Higher Education
2023 Latest Caselaw 13334 MP

                                                              1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                   AT INDORE
                                                       BEFORE
                                           HON'BLE SHRI JUSTICE VIVEK RUSIA
                                                ON THE 17 th OF AUGUST, 2023
                                               WRIT PETITION No. 1997 of 2020

                           BETWEEN:-
                           NEMICHAND SANKHLA S/O RAMGOPAL SANKHLA,
                           AGED ABOUT 60 YEARS, OCCUPATION: SERVICE HOUSE
                           NO. 175, WARD NO. 111, SANKHLA SADAN, SHUJALPUR
                           MANDI, TEHSIL SHUJALPUR, (MADHYA PRADESH)

                                                                                           .....PETITIONER
                           (BY SHRI L. C. PATNE - ADVOCATE FOR THE PETITIONER)

                           AND
                           1.    DEPARTMENT    OF   HIGHER   EDUCATION
                                 PRINCIPOAL SECRETARY VALLABH BHAWAN
                                 MANTRALAYA BHOPAL (MADHYA PRADESH)

                           2.    THE COMMISSIONER OF HIGHER EDUCATION
                                 GOVERNMENT    OF MP SATPURA BHAWAN,
                                 BHOPAL (MADHYA PRADESH)

                           3.    THE PRINCIPAL GOVERNMENT JAWAHARLAL
                                 NEHRU MEMORIAL PG COLLEGE SHUJALPUR ,
                                 DISTRICT UJJAIN (MADHYA PRADESH)

                                                                                        .....RESPONDENTS
                           ( BY SHRI KRATIK MANDLOI - GOVERNMENT ADVOCATE FOR THE
                           RESPONDENTS STATE)

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

The petitioner, who is a Class-I employee holding the post of Assistant Professor has filed this present petition challenging the order dated 21.10.2019, whereby respondent has directed recovery of sum of Rs. 909446/- on the

Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 21-08-2023 14:29:03

ground of excess payment while fixing his pay in the pay band or i.e Rs. Rs.37400-67000 AGP Rs.9000/- w.e.f 1.4.2011.

Learned counsel for the petitioner submits that the recovery of principal amount may be justified but charging of interest is wholly unjustified as the petitioner was not held responsible for wrong fixation which was done by the Department itself .

The respondents have filed a reply and the stand of the petitioner is that the petitioner was paid emoluments more than his entitlement and the petitioner was not entitled for grant of higher pay scale and in those circumstances the recovery has been ordered. However, he has not disputed the fact that the

petitioner was not responsible in the matter of pay-fixation.

Learned counsel for the respondent State has further argued before this Court that the State Government is entitled to recover the amount keeping in view the judgment delivered by the apex Court in the case of Chandi Prasad Uniyal and others vs. State of Uttarakhand and others (2012) 8 SCC 417.

This Court after careful consideration of the aforesaid judgment is of the considered opinion that the petitioner was not at fault in the matter of pay fixation and the petitioner shall be subjected to undue hardship that too after his retirement.

A Division Bench of this Court in the case of State of Madhya Pradesh Vs. Om Prakash (Writ Appeal No. 168 / 2012, decided on 9/11/2012), in para 04 to 10 has held as under :

"04. On going through the application, we find that the delay in filing the present appeal has been satisfactorily explained. The writ petitioner was initially appointed on the post of Sub Auditor in the Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 21-08-2023 14:29:03

Cooperative Department of the State Government. He was promoted on the post of Cooperative Inspector on 12.04.1985. He was extended the benefit of 1st Kramonnati in terms of the Circular issued by the State Government dated 19.04.1999. Thereafter he was promoted to the post of Senior Cooperative Inspector on 14.07.2003. On reaching the age of superannuation on 30.06.2010 he was retired.

While making payment for retiral benefits, the appellants herein refixed his pay and cancelled the benefit of time scale which was granted to him vide order dated 25.06.2009 and ordered for recovery of excess payment made to him to the tune of Rs.1,06,949/. Feeling aggrieved, the petitioner filed the aforesaid writ petition

05. The learned Single Judge after considering the submissions made by learned counsel for the parties and noticing the fact that the writ petitioner was not at fault in pay fixation nor he misrepresented for getting the higher pay fixation, allowed the writ petition placing reliance on the decision in the case of Shyambabu Verma vs. Union of India 1994 (2) SCC 521 and Sahibram vs. State of Haryana 1994 (2) SCC 52.

06. It has been contended by learned Panel Lawyer for the

appellant that in view of the law laid down by the Supreme Court in the case of Chandi Prasad Uniyal and others vs. State of Uttarakhand and others (2012) 8 SCC 417, the order passed by the learned Single Judge deserves to be set aside.

07. We have gone through the order passed by the Supreme Court in the case of Chandi Prasad Uniyal and others vs. State of Uttarakhand Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 21-08-2023 14:29:03

and others (supra). We find that the Supreme Court in the said judgment has observed the directions contained in the case of Syed Abdul Qadir (2009) 3SCC 475 and Col. B.J. Akkara (2006) 11 SCC 709 as also in the case of Shyam Babu Verma 1994 (2) SCC 521 and Sahib Ram 1994 (2) SCC 52 wherein the department is restrained from recovery of excess amount keeping in view the peculiar facts and circumstances of the case since the beneficiaries had either retired or were on the verge of retirement and so as to avoid any hardship to them.

08. In the present case also, the benefit extended to the writ petitioner was sought to be recovered on his retirement. In our considered view, this if allowed to stand, would cause great hardship to a retired employee.

09. In the circumstances, we are of the view that no case for interference in the order passed by the learned Single Judge is made out.

10. As a result, the appeal fails and is hereby dismissed."

In the light of the aforesaid judgment, as the recovery is bound to cause undue hardship to the petitioner, is accordingly quashed. Resultantly, the writ petition is allowed. The recovery ordered by the respondents is quashed, however, the pay fixation done by respondents is upheld. Amount recovered from the petitioner be refunded back to the petitioner, within a period of ninety days, from the date of receipt of certified copy of this order.

With the aforesaid, petition stands allowed.

Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 21-08-2023 14:29:03

(VIVEK RUSIA) JUDGE rashmi

Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 21-08-2023 14:29:03