Madhya Pradesh High Court
Dr. Nidhi Khare vs The State Of Madhya Pradesh on 7 August, 2024
1 WP-20877-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 7 th OF AUGUST, 2024
WRIT PETITION No. 20877 of 2024
DR. NIDHI KHARE
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Ms. Smriti Sinha, learned counsel for the petitioner.
Shri Lalit Joglekar, learned Government Advocate for the respondent/State.
ORDER
The present petition assails the order of recovery against the petitioner
vide Annex.P/2 dated 10/05/2019 so also the subsequent rejection of the
representation of the petitioner by Annex. P/1 dated 08/12/2023.
2. Learned counsel for the petitioner by referring to the recovering
order Annex.P/2 submits that the recovery has been ordered on account of
refixation of salary from August 2008 onwards and this recovery was
ordered in the year 2019. As per judgment of Hon'ble Apex Court in the case
of Rafiq Masih Vs. State of Punjab (2015) 4 SCC 334 , the recovery cannot
be ordered from the petitioner because the petitioner has not made any
misrepresentation at the time of erroneous fixation carried out in the year
2006.
3. By referring to the order rejecting representation vide Annex.P/1, it
is submitted by the learned counsel for the petitioner that the said takes into
account a undertaking of the petitioner, which is in accordance with the Pay
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Revision Rules of 2017 which is totally irrelevant for the purpose of
impugned recovery because the impugned recovery has been made from the
year 2008 onwards.
4. Learned counsel submits that in any case, the petitioner would be
covered under Para 18(iii) of the judgment in the case of Rafiq Masih
(supra).
5. Per contra learned counsel for the State submits that the petitioner is
not a retired employee and she is working on the post of Gynecologist in
Government Hospital, which is a Class-I post and the petitioner is not entitled
to challenge recovery on the same parameters on which such recoveries can
be challenged by employees holding Class-III and Class-IV post.
6. Heard learned counsel for the parties.
7. In the present case, the petitioner is admittedly holding a Class-I
post of specialist in Gynecology in Government Hospital. The excess
payment has been made from the year 2008 till the year 2019 and the aspect
of excess payment was intimated to the petitioner on 10/05/2019.
8. The petitioner is not alleged to have made any misrepresentation at
the time of such wrongful fixation in the year 2008 and the said recovery
cannot be justified on the anvil of undertaking which has been given
somewhere after the year 2017 at the time of fixation in accordance with the
Pay Revision Rules of 2017. Thus, this undertaking has no force in the
matter of erroneous fixation of the year 2008.
9. However, the entire recovery cannot be quashed as the petitioner
Signatureholds a Class-I post. The Hon'ble Supreme Court in the case of Rafiq Masih
Not Verified
Signed by: KRISHNA
SINGH
Signing time: 10-08-2024
6.05.48 PM
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(supra) has held as under:
"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
hereinabove, we may, as a ready reference, summarize
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."
10. The recovery in the present case has been ordered for a period of
almost 11 years from 2008 till 2019. In light of Para 18(iii) of the judgment
in the case of Rafiq Masih (supra), this Court is inclined to quash the
recovery for the period August 2008 till April 2014 as this recovery is the
recovery for a period beyond 5 years from the date of recovery order.
11. In other words, the respondents shall be entitled to recover the
amount ascertain against the petitioner vide order Annex.P/2 dated
10/05/2019 for the period May 2014 till May 2019.
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12. With the aforesaid observation, the petition is partly allowed.
(VIVEK JAIN)
JUDGE
RS
