Ku. Lata Jain vs The State Of Madhya Pradesh
2023 Latest Caselaw 17679 MP

                                  1
 IN    THE       HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                         BEFORE
       HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                   ON THE 25 th OF OCTOBER, 2023
                    WRIT PETITION No. 618 of 2015

BETWEEN:-
KU. LATA JAIN D/O LATE SHRI SHAGUN CHAND JAIN,
AGED ABOUT 60 YEARS, OCCUPATION: RETIRED (UDC
CLERK), RESIDENT OF HOUSING COLONY, SHAHID
CHOCK, DISTRICT BHIND (MADHYA PRADESH)

                                                              .....PETITIONER
(BY SHRI D.P. SINGH - ADVOCATE)

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

2.    THE COLLECTOR BHIND,            DISTRICT    BHIND
      (MADHYA PRADESH)

3.    THE ADDITIONAL COLLECTOR, BHIND, DISTRICT
      BHIIND (MADHYA PRADESH)

                                                           .....RESPONDENTS
(SHRI SOHIT MISHRA - GOVERNMENT ADVOCATE FOR STATE)

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

The present petition, under Article 226 of the Constitution of India, has been filed by the petitioner being aggrieved by order dated 21.08.2014 (Annxure-P/1) passed by respondent No.3 - Additional Collector, District Bhind by which in view of the objection of Joint Director, Treasury, pay

fixation of the petitoner has been revised holding that she is not entitled for time-scale pay. Petitoner is further aggrieved by recovery pursuant to the aforesaid pay fixation after her retirement.

2. Brief facts of the case are that the petitioner was initially appointed on the post of Clerk on 02.02.1984 in the department of Municipal Council, Bhind by the Chief Municipal Council, Bhind vide order dated 01.02.1984 and there she had worked till 29.05.1992. Thereafter, her services were continued time to time and lastly, she had worked till 29.05.1992 in the Municipal Council, Bhind. A certificate which was issued by the Municipal Council on 12.07.2013 in favour of the petitioner shows that the petitioner has regularly worked from

02.02.1984 to 29.05.1992 on the post of Clerk. Thereafter, the petitioner moved a representation before the Collector, Bhind in the year 1989 seeking appointment as per the Policy of the State Government wherein it is provided that at least one member of the family who had been dacoity affected be accommodated in the government service but no heed was paid on her representation. Being aggrieved by the aforesaid, the petitioner had preferred Writ Petition No.597 of 1991 before this Court and vide order dated 06.04.1992, the said petition was disposed of with a direction to the Collector, Bhind to appoint the petitioner as a Second Grade Clerk within two months from the date of communication of the order.

3. Despite giving specific directions by this Court on 06.04.1992, when the case of the petitioner was not considered properly by the Collector, then Additional Secretary of the State Government in the year 1992 directed the Collector, Bhind to comply with the order dated 06.04.1992 of this Court. Thereafter, the case of the petitioner was considered and vide order dated 19.05.1992, the Collector, Bhind has given appointment to the petitioner on the

post of Clerk-Cum-Typist with a condition of passing Hindi Typing Examination, failing which, she will get minimum scale of pay. In the light of Circular dated 18.12.1975 issued by the General Administration Department, Bhopal, the Additional Collector, Bhind vide order dated 02.08.1992 had exempted the petitioner from passing Hindi Typing Examination on the ground that she was handicapped with left finger and therefore, her services were continued on the said post with regular pay. Thereafter, services of the petitioner were confirmed by the Collector, Bhind vide order dated 30.07.2012 and she was also given Krammonati on 28.08.2013. Vide order dated 09.09.2013, the petitioner was promoted on the post of Assistant Clerk Class II.

4. As per the Policy of the State Government wherein it is provided that at least one member of the family who was affected by dacoity be accommodated in the government service, services of the petitioner which were taken by the Municipal Council, Bhind have not been merged into the services given in the office of the Collector. In this context, the petitioner sent a legal notice to the authority concerned but no heed was paid to the said notice despite the fact that the petitioner was going to be retired in the month of July, 2014 and if earlier services would not merge into present services, then great prejudice and financial loss towards pensionary and monetary benefits would be

caused to the petitioner.

5. As per the Policy framed by the State Government which is contained in Annexure P/13, any employee who has completed six years of continuous service in a particular department will be eligible for pensionary benefits.

6. Upon attaining the age of superannuation, the petitioner stood retired

on 31.07.2014 and just after her retirement, impugned order has been passed by respondent No.3 by which the pensionary benefits were reduced and accordingly, direction was issued for recovery of the excess amount paid to the petitioner. Being aggrieved by the aforesaid, the present petition has been filed.

7. Learned counsel for the petitioner has submitted that the petitioner has already submitted her option on 25.05.2009 but without considering the same, the impugned order has been passed by respondent No.3, which is per se illegal and contrary to settled principle of law, hence, deserves to be quashed.

8. It was further submitted that pay-scale which has been granted to the petitioner cannot be recovered only on the basis of objection raised by Assistant Director and was confirmed by Additional Collector, without any notice and without affording any opportunity of hearing.

9 . It was further submitted that the petitioner was eventually superannuated on 31.07.2014 and since order under challenge was issued after retirement of the petitioner, therefore, in the light of judgment passed by Supreme Court in the case of State of Punjab & Others Vs. Rafiq Masih (Whitewasher) reported in (2015) 4 SCC 334, recovery cannot be made.

10. It was further submitted that before retirement, the petitioner was never informed about any wrong pay-scale given to her, even before proposing recovery and showing amount to be recovered, no notice was issued to him asking that the amount paid in excess has to be recovered from him.

11. It was further submitted that while availing the benefit of fixation of pay-scale, the petitioner was not at fault, inasmuch as she was not guilty of any misrepresentation or any fraud on her part. Therefore, recovery after superannuation of the petitioner, cannot be ordered and hence, the impugned order deserves to be set aside.

12. It was further submitted that the Government of Madhy Pradesh, Finance Department had issued a Circular dated 01.04.2011 wherein it is provided that once an option was given to any employee, the same will be taken into consideration as a final option.

13. On the basis of the above arguments and in the light of the judgment passed in the matter of State of Punjab and others Vs. Rafiq Masih (2015 (1) MPHT 130 (SC), the recovery pursuant to revised pay fixation is bad in law and therefore, foundation of impugned recovery Annexure P/1 deserves to be quashed. Thus, the respondents may be directed to settle the retiral dues as well.

14. Per contra, learned Government Advocate appearing for the State has opposed the prayer so made by counsel for the petitioner and submitted that since the recovery is not the consequence of punishment order, therefore, no opportunity of hearing or written notice was required to be given. Thus it was prayed that the recovery initiated against the petitioner being legally recoverable cannot be said to be illegal and thus, prayed for dismissal of the present writ petition.

15. Heard counsel for the parties and perused the record.

16. It is not in dispute that the petitioner has retired from her service after attaining the age of superannuation on 31.07.2014 and thereafter, the recovery has been initiated from her retiral dues. It is also not the case of the respondents that the petitioner has received excess payment by practicing fraud or by making representation.

17. It is settled law that no recovery can be made from the employees when they have retired or are due to retire within one year of the order of

recovery. It is also legally settled that recovery from the employees when the excess payment has been made for the period in excess of five years before the order of recovery is issued is not permissible. It is also well settled that in case excess payment is not made on account of misrepresentation or fraud on the part of the employee, the same could not be recovered and it cannot be recovered without giving any opportunity of hearing also. In the case of Rafiq Masih (supra), wherein the Apex Court in Para-12 has postulated certain categories and observed that the recovery from them is impermissible. Para-12 is relevant, which is reproduced thus:

"12. It is not possible to postulate all situations of hardship, which wo uld 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 herein 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 employees belonging to Class- III and Class-IV service (or 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 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 employers right to recover."

18. Further Hon'ble Supreme Court in subsequent case of High Court of Punjab and Haryana Vs. Jagdev Singh reported in 2016 14 SCC 265

while clarifying the principle of law enunciated in Rafiq Masih (supra) has held that recovery from the retired employee or employees who are due to retire is impermissible cannot be made applicable to situation where the officer to whom payment was made at the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. In the aforesaid judgment, the Apex Court has held that if the officer has furnished an undertaking while opting for the revised pay scale, he or she is bound by the undertaking given by him or her. At this stage, it would be relevant to reproduce paras No. 9 to 11 of the aforesaid judgment, which read as under:-

"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 re-fixation or revision may warrant an adjustment of the excess payment, if any, made.

10. Thus, the legal position which is culled out from the above decision of the Hon'ble Supreme Court is that if at the time of grant of any benefit an undertaking is given by an employee, he would be bound by that and in event if it is found that any excess payment had been made, it could be recovered. But it is not the case here, the undertaking appears to have been given at the time of grant of pension and not at the time of grant of two increments, which were later withdrawn, thus, the recovery is wholly bad.

11. Also, as the stand taken by the Respondents that the recovery of the amount of Rs.1,89,241/- was on account of grant of two wrong increments, had not b een demonstrated with facts and figures, this Court cannot come to a conclusion that since the Petitioner had not cleared the exam of B.Ed/BTS/D.Ed before the cut off date as mentioned in the circular, he is not entitled for any increments, thus, in absence thereof coupled with the fact that after retirement as per Rafiq Masih (supra) recovery is bad, the recovery

so made from the retiral dues of the Petitioner is bad in law and is hereby quashed."

19. From careful perusal of the aforesaid judgment rendered by the Hon'ble Supreme Court in the case of Jagdev Singh (supra) it is clearly suggested that the principle laid down in Rafiq Masih's c as e (supra) that recovery from employee belonging to Class - III & Class - IV service (Group- C and Group-D service) would be impermissible in law, still holds the field, in the latter case it is only clarified that recovery from those retired employees or who are due to retire within one year of the order of recovery shall be permissible who had given undertaking at the time of taking benefit of that payment if found in excess would be liable to be adjusted, thus for recovery this eventuality is imposed that at the time of the approval of benefit, an undertaking is given by the employee that in case it is found that the benefit has been extended was not permissible and any recovery is made on that account, it shall be recoverable. In the present case, it is not the case herein that the petitioner who is a retired employee had at any point of time given any undertaking making her liable for recovery.

20. In light of the above discussion, the impugned order revising the pay fixation of the petitioner in the year 2014 and thereby ordering recovery of excess amount paid to the petitioner in the year 2006, is hereby quashed and the Respondents are directed to release the amount if any due to the petitioner within a period of two months from the date of receipt of certified copy of this order, failing which the aforesaid amount shall carry interest at the rate of 6% per annum till actual date of payment.

21. With the aforesaid observation and directions, the petition stands disposed of.

E-copy/certified copy as per the Rules and directions.

(MILIND RAMESH PHADKE) JUDGE pwn* PAWAN Digitally signed by PAWAN KUMAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=b864d1ab4ace2215bfcf3ab301c34d631287f1b1cdd90b4a49f265f02d9d593f,

KUMAR pseudonym=3190AA6E1809E2BA43FFBEC416CA08028399E44A, serialNumber=61B9D129971D2EA4FD4455ED49EA436EA65E26164BEEED89153191C56E98CE21, cn=PAWAN KUMAR Date: 2023.10.27 10:23:49 +05'30'