Madhya Pradesh High Court
Mohd. Rafique vs Secretary The State Of Madhya Pradesh ... on 11 December, 2023
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 11 th OF DECEMBER, 2023
WRIT PETITION No. 4778 of 2010
BETWEEN:-
MOHD. RAFIQUE S/O ABDUL JALIM QURESHI, AGED
ABOUT 56 YEARS, OCCUPATION: SERVICE 21/1,
NAHARPURA STREET NO.2 RATLAM (MADHYA
PRADESH)
.....PETITIONER
(SHRI PRAKHAR KARPE-ADVOCATE)
AND
1. SECRETARY THE STATE OF MADHYA PRADESH
GOVT. SCHOOL EDU. DEPTT. MANTRALYA
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
2. DIRECTOR PUBLIC EDUCATION DIRECTORATE
(MADHYA PRADESH)
3. DISTRICT EDUCATION OFFICER (MADHYA
PRADESH)
4. MAHATMA GANDHI MEMORIAL URDU HIGHER
SECONDARY SCHOOL, NAHARPURA RATLAM
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI VISHAL SANOTHIYA - GOVERNMENT ADVOCATE)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
This petition is filed under Article 226/227 of the Constitution of India
challenging the orders dated 13.05.2009, 27.03.2010, 08.04.2010, whereby, the
respondents have issued recovery of Rs.97,706/-.
2. The facts of the case are that in the year 1993 the State Government
was pleased to grant the benefit of Kramonnati/Senior Scale to the teachers
working in various schools in the State of Madhya Pradesh. In pursuance of
which an order dated 22.03.99 was issued by Deputy Director Public Education
Department, Ratlam in which it has been mentioned that after completing 12
years services by the Asstt. Teacher, whose names are mentioned in the same
order are declared to be entitle for senior scale by the committee constituted for
the said purpose. In the said list, the petitioners name find place at serial no.1 of
the respondent no.4 school and accordingly, the benefit was extended to the
petitioners.
3. In the year 2009, it appears an audit objection was raised by the
Accountant General MP Gwalior with regard to the payment made to the
teachers by granting a senior scale, therefore, a letter dated 13.05.2009 was
issued by the respondent no.2 to the respondent no.3 by mentioning the fact
that benefit was required to be given to such teachers whose cases were
sanctioned prior to 01.04.2000 by the competent authority. It ha been further
mentioned that an audit objection is raised by the AGMP Gwalior with regard to
payment made to such teacher to whose favour sanction of senior scale was
granted prior to 01.04.2000. However, the actual benefit was not accorded at
that particular of time but arrears were paid in the year 2003-04 therefore, such
payment is irregular and liable to be recoverable and therefore it was directed by
the respondent no.2 to respondent no.3 to take action of recovery.
4. In pursuance of aforesaid letter dated 13.05.2009, the respondent no.3
has issued letter dated 27.03.2010 to the respondent no.4 by mentioning similar
fact and directed the respondent no.4 to recover the amount of Rs.3,29,916/- in
one installment and if the institute is failed to recover the amount then they
would be held responsible.
5. In furtherance of the aforesaid letter dated 27.03.2010, the respondent
no.4 has issued letter dated 08.04.2010 to the petitioner by mentioning the fact
that the payment of arrears of kramonnati/senior scale is declared irregular by
the respondent no.3 and inspite of explanation given by the institution, the
respondent no.3 has directed for the recovery of the amount and therefore,
make the payment of Rs.97,706/- till 15.04.2010 otherwise, the institution will
take appropriate action as per law.
6. Learned counsel for the petitioner argued that the said order of
recovery has been passed despite the fact that there is no mis-representaion or
fraud played by the petitioner-employee. The respondents have filed the reply
that the petitioner was not entitled for senior pay scale/kramonnati and therefore,
the respondents have rightly passed the impugned order of recovery.
7. It is further contended that the impugned order of recovery is detrimental
to the petitioner. There had not been any mis-representation on part of the
petitioner and therefore the order of recovery from his retiral dues is not
sustainable in the light of decision of the Apex Court in the case of State of
Punjab and others Vs. Rafiq Masih (2015) 4 SCC 334. Learned counsel for the
petitioner has further placed reliance upon the judgment passed by this Court in
the matter of N.P.S. Sisodia Vs. State of M.P . reported in M.P. Weekly
Notes 2022 (II) MPWN 32, wherein recovery order has been quashed and
respondents were directed to refund the amount, if already recovered as well as on
delayed payment petitioner shall also be paid simple interest of 6% per annum of
entire retrial dues from the date of his entitlement till final payment is made. It is
further submitted that the impugned order of recovery is liable to be quashed and
the respondents deserve to be directed to release entire dues with interest on
delayed payment.
8. Counsel for the State supports the impugned action and submitted that
recovery is correct as excess salary was paid to the petitioner and therefore, retiral
dues were withheld.
9. I have heard the learned counsel for the parties and have perused the
record.
10. The issue regarding recovery from the employees either in service or
after attaining the age of superannuation is no more res integra and has been
settled in the case of Rafiq Masih (supra) wherein the Apex Court in paragraph 18
has postulated certain categories and has observed that recovery from them is
impermissible. Paragraph 18 is reproduced below:-
"18. 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 here in above, we may, as a ready reference, summarise
the following few situations, wherein recoveries by the employers,
would be impermissible in law:
(i) Recovery from the employees belonging to Class III and
Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who
are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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."
11. In view of aforesaid, since the petitioner has already attained the age
of superannuation, no recovery from retired class-III employee is permissible in
the light of the judgment passed by the Apex Court in the case of Rafiq Masih
(supra). As a consequence, the impugned order of recovery is quashed. The
respondents are directed to refund the amount of recovery to the petitioner, if
recovered, along with interest @ 6% per annum from the date of recovery. The
respondents are directed to make payment of full pension and full gratuity amount
to the petitioner along with interest.
12. The entire exercise be completed within a period of 3 months from the
date of receipt of certified copy of the order.
With the aforesaid, the petition is allowed and disposed of.
(VIJAY KUMAR SHUKLA)
JUDGE
Sourabh
