Madhya Pradesh High Court
Kailash Chandra Shinde vs The State Of Madhya Pradesh on 3 May, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 3 rd OF MAY, 2024
WRIT PETITION No. 11674 of 2024
BETWEEN:-
KAILASH CHANDRA SHINDE S/O LATE SHRI EDLAL
SHINDE, AGED ABOUT 66 YEARS, OCCUPATION:
RETIRED EX UPPER DIVISION TEACHER,
GOVERNMENT BOYS MIDDLE SCHOOL DHARAMPURI,
R/O 1036, SCHEME NO. 71-B, INDORE (MADHYA
PRADESH)
.....PETITIONER
(SHRI L. C. PATNE, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY DEPARTMENT OF
TRIBAL AFFAIRS VALLABH BHAWAN
MANTRALAYA, BHOPAL (MADHYA PRADESH)
2. THE ASSISTANT COMMISSIONER OF TRIBAL
AFFAIRS DISTRICT DHAR (MADHYA PRADESH)
3. THE PRINCIPAL, GOVERNMENT BOYS HIGHER
SECONDARY SCHOOL DHARAMPURI, TEH.
DHARAMPURI, DIST. DHAR (MADHYA PRADESH)
4. THE DISTRICT PENSION OFFICER DISTRICT
DHAR, (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SUDHANSHU VYAS, PANEL LAWYER FOR STATE)
This petition coming on for admission this day, the Court passed the
following:
ORDER
Heard.
T he petitioner has filed this present petition under Article 226 of the
Constitution of India challenging Annexure-P/2 and P/3, whereby the excess
amount paid to the petitioner has been calculated and directed him to deposit
the same before issuance of PPO.
2. The aforesaid amount has been calculated on the basis of wrong
fixation in the year 2011 and the payment till the date of retirement. The
petitioner has retired from the post of Upper Division Teacher, which is a
Class-III post. Before filing of this petition, the petitioner has deposited the
amount in order to get the pension. However, out of Rs.2,65,671/-, the interest
component is Rs.1,11,193/-. Therefore, order of recovery of excess amount
has been issued to the petitioner hence, the petitioner is seeking quashment of
the recovery proceedings.
3. The case of the petitioner is squarely covered with the judgement
passed by the Apex Court in case of State of Punjab v. Rafiq Masih, (2015)
4 SCC 334 and Full Bench decision of this Court in W.A.815/2017 (The State
of Madhya Pradesh and others Vs. Jagdish Prasad Dubey) decided on
06.03.2024, which reads as under:-
35.(a) Question No.1 is answered by holding that recovery
can be effected from the pensionary benefits or from the
salary based on the undertaking or the indemnity bond
given by the employee before the grant of benefit of pay
refixation. The question of hardship of a Government
servant has to be taken note of in pursuance to the judgment
passed by the Larger Bench of the Hon'ble Supreme Court
in the case of Syed Abdul Qadir (supra). The time period as
fixed in the case of Rafiq Masih (supra) reported in (2015)
4 SCC 334 requires to be followed. Conversely an
undertaking given at the stage of payment of retiral dues
with reference to the refixation of pay or increments done
decades ago cannot be enforced.
(b) Question No.2 is answered by holding that recovery can
be made towards the excess payment made in terms of Rules
65 and 66 of the Rules of 1976 provided that the entire
procedures as contemplated in Chapter VIII of the Rules of
1976 are followed by the employer. However, no recovery
can be made in pursuance to Rule 65 of the Rules of 1976
towards revision of pay which has been extended to a
Government servant much earlier. In such cases, recovery
can be made in terms of the answer to Question No.1.
( c ) Question No.3 is answered by holding that the
undertaking given by the employee at the time of grant of
financial benefits on account of refixation of pay is a forced
undertaking and is therefore not enforceable in the light of
the judgment of the Hon'ble Supreme Court in the case of
Central Inland Water Transport Corporation Limited
(supra) unless the undertaking is given voluntarily.
4. In view of the above and the findings recorded by the Full Bench of
this Court in the case of Jagdish Prasad Dubey (supra), the recovery from the
petitioner is hereby quashed and the amount deposited by the petitioner be
returned back to him within a period of 60 days from today.
5. With the aforesaid, this writ petition stands disposed of.
(VIVEK RUSIA)
JUDGE
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