Vidya Devi Shrivastava vs The State Of Madhya Pradesh
2023 Latest Caselaw 22154 MP

Madhya Pradesh High Court

Vidya Devi Shrivastava vs The State Of Madhya Pradesh on 22 December, 2023

Author: Subodh Abhyankar

Bench: Subodh Abhyankar

                                                           1
                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                 AT INDORE
                                                     BEFORE
                                     HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
                                            ON THE 22 nd OF DECEMBER, 2023
                                             WRIT PETITION No. 30478 of 2023

                           BETWEEN:-
                           VIDYA DEVI SHRIVASTAVA W/O SHREE GOVIND
                           PRASAD SHRIVASTAVA, AGED ABOUT 66 YEARS,
                           OCCUPATION: RETD. GOVT. TEACHER 24, CHANDRA
                           SHEKHAR MARG, NAGDA DIST. UJJAIN (MADHYA
                           PRADESH)

                                                                                      .....PETITIONER
                           SHRI GOURAV SHRIVASTAVA, ADVOCATE

                           AND
                           1.    THE STATE OF MADHYA PRADESH THROUGH
                                 PRINCIPAL SECRETARY VALLABH BHAWAN,
                                 BHOPAL (MADHYA PRADESH)

                           2.    COMMISSIONER EDUCATION AND PUBLIC
                                 INSTRUCTIONS      SCHOOL    EDUCATION
                                 D EPARTM EN T VALLABH BHAWAN BHOPAL
                                 (MADHYA PRADESH)

                           3.    DISTRICT    EDUCATION           OFFICER UJJAIN
                                 (MADHYA PRADESH)

                           4.    JOINT DIRECTOR OF TREASURY ACCOUNTS AND
                                 PENSION UJJAIN (MADHYA PRADESH)

                           5.    DIVISION PENSION OFFICER PENSION OFFICE
                                 UJJAIN (MADHYA PRADESH)

                           6.    PRINCIPAL GIRLS HIGHER SECONDARY SCHOOL
                                 NAGDA DIST UJJAIN (MADHYA PRADESH)

                                                                                    .....RESPONDENTS
                           MS. HARSHLATA SONI, GOVT. ADVOCATE

                                 T h is petition coming on for order. this day, t h e cou rt passed the
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 22-12-2023
16:48:08
                                                                2
                           following:
                                                               ORDER

1. The petitioner has filed present writ petition being aggrieved by the order dated 5/12/2016, by which, the respondents have irregularly recovered the amount of Rs. 1,54,250/- on excess amount of Rs.2,30,178/- of wrong pay fixation.

2 The petitioner was appointed on the post of teacher in School Education Department on 7.1.1984. Thereafter, she was regularised and was granted the highest regular payscale as admissible to an Assistant teacher prevalent at that time by date of regularization. The respondents vide order dated 5.12.2016 have issued a order against the petitioner for a recovery of

Rs.2,30,178/- along with the recovery of an interest on the principal, ie, an interest amount of Rs.1,54,250/-.

3. Shri Gaurav Shrivastava, counsel for the petitioner has placed reliance over the judgment delivered in the case of State of Punjab and Others Vs. Rafiq Masih reported (2014 ) 8 SCC 883, and submitted that the respondent has recovered the amount paid in excess to the petitioner, but they are not justified in recovering the interest amount from the petitioner as he was not at fault in getting the same. The respondent has illegally deducted the interest amount of Rs.1,54,250/-, therefore, at least recovery of interest may kindly be set aside.

4. In the case of High Court of Punjab and Haryana and others Vs. Jagdev Singh reported in 2016 SCC Online SC 748, the Apex Court has held that where the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The Officer furnished an undertaking

while opting for the revised pay scale, then he is bound by the undertaking, then recovery should be made in reasonable installments. The Apex Court has quoted the judgment passed earlier in the case of State of Punjab Vs. Rafiq Masih, where recovery was held impermissible in law in case of Class-III and IV employees.

9 The submission of the Respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the state. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the Respondent was clearly on notice of the fact that a future refixation or revision may warrant an adjustment of the excess payment, if any, made. 10 In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc1. this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law:

a(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been madefor 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.â​​ (emphasis supplied).

11 The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.

12 For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years.

5. The respondent has recovered the amount paid in excess to the petitioner on account of wrong fixation, but they have wrongly recovered the interest amount. Since the petitioner was not at fault, hence she is not liable to pay the interest, therefore, the respondents are directed to refund the interest amount of Rs. 1,54,250/- to the petitioner within a period of 60 days from the date of production of certified copy of this order.

6. Present petition stands disposed of accordingly. C c as per rules.

(SUBODH ABHYANKAR) JUDGE

das