Madhya Pradesh High Court
Smt. Suman Malviya vs State Of M.P. Through Department Of ... on 29 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 29 th OF FEBRUARY, 2024
WRIT PETITION No. 16937 of 2020
BETWEEN:-
SMT. SUMAN MALVIYA W/O SHANKAR LAL MALVIYA,
AGED ABOUT 55 YEARS, OCCUPATION: ANM 533, R/O.
VILLAGE DAWANA, MAIN ROAD, BUS STAND, THEISL
THIKRI, DISTT. BARWANI (MADHYA PRADESH)
.....PETITIONER
(BY MS. MEGHA JAIN - ADVOCATE)
AND
1. STATE OF M.P. THROUGH DEPARTMENT OF
PUBLIC HEALTH AND FAMILY WELFARE
SECRETARY VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
2. CHIEF MEDICAL AND HEALTH OFFICER PUBLIC
HEALTH AND FAMILY WELFARE DEPARTMENT
BARWANI (MADHYA PRADESH)
3. CHIEF BLOCK MEDICAL OFFICER PRIMARY
HEALTH CENTRE, THIKRI DIST.BARWANI
(MADHYA PRADESH)
4. DISTRICT TREASURY OFFICER DIRECTORATE OF
TREASURY AND ACCOUNTS DISTRICT TREASURY
OFFICE, BARWANI (MADHYA PRADESH)
5. COLLECTOR / DISTRICT MAGISTRATE
COLLECTOR OFFICE, BARWANI (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI MUKESH PARWAL, G.A. FOR STATE)
Signature Not Verified
Signed by: SHAILESH This petition coming on for admission this day, th e court passed the
MAHADEV SUKHDEVE
Signing time: 3/4/2024
4:34:57 PM
following:
2
ORDER
1. Heard finally with consent.
2 . By this writ petition the petitioner who is working as Auxillary
Nursing Midwife has challenged the order dated 13.7.2020 (Annexure P/1) by
which Chief Medical and Health Officer, Barwani has directed for recovery of a
sum of Rs.2,09,633/- from the petitoner.
3. The respondents have filed their reply taking the stand that as per the
recommendation of the Brahmswaroop Committee, the petitioner was entitled to
the pay scale of Rs.8150 + 2100 total Rs.10250/- with effect from 01.4.2006
but while fixing the pay an error was committed and the petitioner was fixed in
the scale of Rs.8400 + 2100 + 2400 total Rs.10,800/- and accordingly the
payment was made, hence the petitioner had received excess payment with
effect from 01.04.2006, therefore, the recovery has been directed. A further plea
has been taken that petitioner had given the undertaking Annexure R/1.
4. Learned counsel for the petitioner submits that Annexure R/1 is only
an undertaking given by the petitioner for receiving the benefit of a different pay
scale and it is not an undertaking. He further submits that the issue involved in
the present case is fully covered by order dated 03.10.2017 passed in W.P.
No.2196/2017 Kailash Rai Sunahre Vs. State of M.P. and others.
5. Learned counsel for the respondents has opposed the writ petition
but was not able to dispute the fact that the case of the petitioner is identical to
the case of Kailash Rai Sunahre (supra).
6. The coordinate bench of this Court in the case of Kailash Rai
Sunahre (supra) has passed the following order dated 03.10.2017:-
"Parties through their counsel.
Signing time: 3/4/2024 The petitioner before this Court, who is working on the
4:34:57 PM
post of Multipurpose Health Worker is aggrieved by the
order dated 04.06.2016 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 :-
"1 2 . 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
Signed by: SHAILESH rightfully been required to work against an inferior post.
4:34:57 PM ( 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."
7. 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.
8. Having regard to the aforesaid, the writ petition filed by the petitioner
deserves to be allowed and is accordingly allowed by setting aside the
impugned recovery order dated 13.7.2020 (Annexure P/1). However the pay
fixation is maintained. The amount, if any, recovered from the petitioner be
refunded to her within a period of three months from the date of receipt of
certified copy of this order.
4:34:57 PM C.c. as per rules.
(PRANAY VERMA)
JUDGE
SS/-
