Madhya Pradesh High Court
Avka Dawar vs Public Health And Family Welfare ... on 2 February, 2024
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 2 nd OF FEBRUARY, 2024
WRIT PETITION No. 12314 of 2020
BETWEEN:-
AVKA DAWAR W/O SHRI WAMAN DAWAR, AGED
ABOUT 40 YEARS, OCCUPATION: SERVICE, ADD. GRAM-
KARAMPURA, POST-BHATKI, TEHSIL PANSEMAL
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI RANJEET SEN - ADVOCATE)
AND
1. STATE OF M.P. THROUGH PRINCIPAL SECRETARY
DEPTT. PUBLIC HEALTH AND FAMILY WELFARE ,
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
2. CHIEF MEDICAL AND HEALTH OFFICER
COMMUNITY HEALTH CENTRE PANSEMAL
(MADHYA PRADESH)
3. CHIEF BLOCK MEDICAL AND HEALTH OFFICER
COMMUNITY HEALTH CENTRE PANSEMAL
(MADHYA PRADESH)
4. DISTRICT TREASURY OFFICER BADWANI
(MADHYA PRADESH)
5. JOINT DIRECTOR DIRECTORATE OF TREASURY
AND ACCOUNTS DIVISIONAL OFFICE INDORE
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ANENDRA SINGH PARIHAR- P.L. FOR STATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
1. By this writ petition, the petitioner who is working as ANM has
challenged the order dated 16/7/2020 (Annexure P/1) passed by respondent
No.1 and the calculation sheet (Annexure P/2) by which a recovery of a sum of
Rs.48,408/- along with interest of Rs.61,910/- total sum of Rs.1,10,318/- has
been directed.
2. Respondents have filed the reply taking the stand that as per the
recommendation of the Brahama Swarup Committee, the petitioner was entitled
to a particular pay - scale w.e.f. 1/4/2006 but while fixing the pay the error was
committed and the petitioner was fixed in higher pay-scale and accordingly
payment was made to him hence the petitioner has received the excess amount
w.e.f 1/4/2006 therefore, the recovery has been directed.
3. Learned counsel for the petitioner submits that the issue involved in the
present case is fully covered by order dated 3/10/2017 passed in
W.P.No.2196/2017 in the matter of Kailash Rai Sunahre V/s. State of M.P.
& Ors.
4. Learned counsel for the respondents/State opposed the writ petition
but could not despite the fact that the case of the petitioner is identical to the
case of Kailash Rai Sunahre (supra).
5. The Coordinate bench of this Court in the case of Kailash Rai Sunahre
(supra) has passed the following order dated 3/10/2017 :-
"Parties through their counsel.
The petitioner before this Court, who is working on the post of
Multipurpose Health Worker is aggrieved by the order dated 4.06.2016
issued by the respondents by which recovery of Rs.51,754/- along with
interest @ 12% Rs.29,590/- has been ordered.
Petitioner's contention is that he is a class- III employee appointed
on 02.02.1995 and he is still in service. It has been stated that on
account of revision of pay-scale in light of Revision of Pay Rules, 2009,
he was granted higher pay-scale and now recovery has been ordered on
the ground that he was entitled for the pay-scale of Rs.3500-5200/- (GP
2100).
Respondents have filed a reply in the matter and their stand is
that the petitioner has submitted an undertaking annexure R-5 at the
time the pay-fixation has been done even though he is a class-III
employee.
This Court has carefully gone through annexure R-5, which is
certainly not an undertaking, it is an option given by the petitioner in the
matter of grant of higher pay-scale and therefore, the option cannot be
treated as an undertaking.
Hon'ble the Supreme Court in the case of State of Punjab and
Others etc. Vs. Rafiq Masih (White Washer) etc, reported in 2015(1)
MPHT 130 (S.C.) in paragraph No.12 has held as under :-
"12. 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 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 '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 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."
Undisputedly, the petitioner is serving as a class-III employee and
the recovery ordered is bound to cause undue hardship to him.
Resultantly, in light of the aforesaid judgment, the recovery is hereby
quashed and the pay-fixation is upheld.
Respondents have also placed reliance upon the judgment
delivered in the case of Kailash Kushwah Vs. State of M.P. and others
(W.P. No.1484/2016 (S).
In the aforesaid case, the petitioner therein has submitted an
undertaking whereas in the present case, no such undertaking has
been given by the petitioner. Resultantly, the writ petition stands
allowed. The amount, if any, has been recovered from the
petitioner be refunded
back to the petitioner within 90 days, however, the pay-fixation is
upheld.
With the aforesaid, the writ petition stands disposed of.
6. The case of the petitioner stands on the same footing, hence having
regard to the reasons which have been assigned in the case of Kailash Rai
Sunahre (supra) and taking note of the judgment of the Supreme Court in the
case of State of Punjab and Others etc. Vs. Rafiq Masih (White Washer) etc,
reported in 2015(1) MPHT 130 (S.C.), I am of the opinion that the petitioner is
entitled to the same relief.
7. As a result, I am of the opinion that the writ petition filed by the
petitioner deserves to be allowed and is accordingly allowed by setting aside the
impugned order dated 16/7/2020 (Annexure P/1) and recovery (Annexure P/2).
However the pay fixation is maintained. The amount recovered from the
petitioner be refunded to him within a period of 3 months from the date of
furnishing of certified copy of this order.
C.c. as per rules.
(PRANAY VERMA)
JUDGE
SS/-
