Cicily Joseph vs State Of M.P. Through Public Health And ...
2023 Latest Caselaw 21023 MP

Madhya Pradesh High Court

Cicily Joseph vs State Of M.P. Through Public Health And ... on 12 December, 2023

Author: Vivek Rusia

Bench: Vivek Rusia

                                                              1
                            IN    THE       HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                       BEFORE
                                           HON'BLE SHRI JUSTICE VIVEK RUSIA
                                              ON THE 12 th OF DECEMBER, 2023
                                               WRIT PETITION No. 1246 of 2021

                           BETWEEN:-
                           CICILY JOSEPH W/O INDAL KAMAL JOSEPH, AGED
                           ABOUT 63 YEARS, OCCUPATION: RETIRED, R/O 237,
                           SHRI MANGAL NAGAR, BICHOLI HAPSI ROAD, INDORE
                           (MADHYA PRADESH)

                                                                                           .....PETITIONER
                           (BY SHRI DURGESH SHARMA, ADVOCATE.)

                           AND
                           1.    STATE OF M.P. THROUGH PRINCIPAL SECRETARY
                                 PUBLIC HEALTH AND FAMILY WELFARE
                                 DEPARTMENT, VALLABH BHAWAN, BHOPAL
                                 (MADHYA PRADESH)

                           2.    DEAN, MAHATMA GANDHI MEMORIAL MEDICAL
                                 COLLEGE, INDORE (MADHYA PRADESH)

                           3.    DIVISIONAL       JOINT DIRECTOR TREASURY,
                                 A C C O U N T S AND     PENSION, MAHARAJA
                                 COMPLEX, MTH COMPOUND, INDORE (MADHYA
                                 PRADESH)

                           4.    DIVISIONAL PENSION OFFICER, MOTI TABELA,
                                 INDORE (MADHYA PRADESH)

                                                                                        .....RESPONDENTS
                           (BY SHRI KRATIK MANDLOI, GOVERNMENT ADVOCATE.)

                                 T h is petition coming on for orders this day, t h e cou rt passed the
                           following:
                                                               ORDER

The petitioner has filed the present petition challenging the order dated 07.08.2019 (Annexure P/4) and order dated 20.02.2020 (Annexure P/5)

whereby the respondent recovered the amount of Rs.3,16,170/- from his retiral dues on account of excess payment due to non-fixation of pay.

02. At the time of retirement while deciding the pension, the Divisional Pension Officer raised an objection that after completion of 12 years of service, the benefit of Krammonati was granted to the petitioner w.e.f. 19.04.1999 in a pay-scale of Rs.4500-7000/- and he was placed at Rs.6,125/- instead of Rs.5,875/- as a result of which the excess amount of salary paid to him till retirement. Thereafter, the petitioner was extended the benefit of time bound pay-scale w.e.f. 01.04.2006 and wrongly placed in the higher pay-scale of Rs.13,540 4,200/- instead of Rs.13,030 4,200/-.

03. The respondent has relied on an undertaking furnished by the petitioner that the amount can be recovered from his retiral dues if found paid in excess.

04. So far as the undertaking is concerned, admittedly, the same was taken at the time of retirement not at the time of pay fixation w.e.f. 01.01.1996 and 01.01.2006, therefore, the same cannot be relied.

05. A similar issue came up for consideration before this Court in the c as e Indrajeet Mishra Vs, State of M.P. (W.P.No.20944/2017 order dated 28.11.2022), Jor Singh Bhadoriya Vs. State of M.P. (W.P.No.8811/2016 order dated 30.8.2017) and in division Bench of this Court at Principal Sear Jabalpur in the case of State of M.P. Vs. Kumari Sahara Saini (Passed in W.A.NO.106/2019 dated 12.02.2020) and W.A.N0.815/2017 order dated 11.04.2018 , in which similar controversy has been put to rest by holding that when no undertaking was taken at the time of pay fixation then the indemnity bond taken after retirement cannot be a basis for recovery in the light of Jagdev (supra). The case is squarely covered by the

judgment passed by the Hon'ble Apex Court in the case of the State of Punjab and Ors. Vs. Rafiq Masih (2015) 4 SCC 334.

06. In view of the above, Writ Petition is allowed. The order dated 07.08.2019 (Annexure P/4) and order dated 20.02.2020 (Annexure P/5) passed by the respondent No.2 stands quashed. The amount be refunded within 90 days from the date of production of certified copy of this order to the petitioner. If respondents fail to return in 90 days then, they shall be liable to pay interest on it @ 6% from the date of this order till the date of payment.

07. With the aforesaid, the writ petition stands disposed of.

(VIVEK RUSIA) JUDGE Divyansh