Ravindra Kumar Joshi vs The State Of Madhya Pradesh
2024 Latest Caselaw 13818 MP

Madhya Pradesh High Court

Ravindra Kumar Joshi vs The State Of Madhya Pradesh on 13 May, 2024

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     IN THE HIGH COURT OF MADHYA PRADESH
                 AT G WA L I O R
                               BEFORE
             HON'BLE SHRI JUSTICE VINAY SARAF

                     ON THE 13th OF MAY, 2024

                 WRIT PETITION No. 17831 of 2019

BETWEEN:-
RAVINDRA KUMAR       JOSHI    S/O SHRI
SHREEPAL JOSHI, AGED         46 YEARS,
OCCUPATION:    SERVICE-    POSTED   AS
ASSISTANT SUB-INSPECTOR (RADIO), ZONE
GWALIOR, DISTRICT GWALIOR (MADHYA
PRADESH)
                                                       .....PETITIONER
(BY SHRI D.P.SINGH - ADVOCATE)

AND
   THE STATE OF MADHYA PRADESH
1.
   THROUGH ITS PRINCIPAL SECRETARY,
   DPEARTMENT OF HOME, MANTRALAYA,
   GOVT. OF M.P. VALLABH BHAWAN,
   BHOPAL (MADHYA PRADESH)
2. DIRECTOR GENERAL OF POLICE, POLICE
   HEADQUARTERS        JAHANGIRABAD
   BHOPAL (MADHYA PRADESH)
3. SUPERINTENDANT OF POLICE(RADIO)
   ZONE GWALIOR DISTRICT GWALIOR
   (MADHYA PRADESH)
4. JOINT DIRECTOR TREASURY ACCOUNTS
   AND PENSION, MOTI MAHAL GWALIOR
   (MADHYA PRADESH)
                                                     .....RESPONDENTS
(BY SHRI GIRRAJ AGRAWAL - GOVERNMENT ADVOCATE FOR
RESPONDENT/STATE)
      This petition coming on for admission this day, the court passed
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the following:

                                 ORDER

1. Petitioner is posted as Assistant Sub-Inspector (Radio) in Police Department has preferred this petition challenging the action of Department whereby the Department has refixed the pay of the petitioner and due to refixation dated 07.03.2019, there is a reduction in the salary of the petitioner and the salary has been refixed w.e.f. 01.01.2006.

2. Learned counsel for petitioner submits that petitioner was initially appointed Constable (Radio) on 09.10.1996 and thereafter he was promoted as Head Constable (Radio) on 31.10.2001. After enforcement of Sixth Pay Commission w.e.f. 01.01.2006, the Department has extended the benefit of time pay scale in furtherance of the instructions issued by the Finance Department on 24.01.2009 and petitioner was extended the benefit of time pay scale w.e.f. 01.01.2006. In consequence, pay of petitioner was refixed and thereafter by order dated 25.02.2016, the petitioner was again promoted as Assistant Sub-Inspector (Radio) and pay fixation was done accordingly.

3. As per petitioner, the petitioner was enjoying benefit of time scale of pay w.e.f. 01.01.2006 and thereafter he was promoted as Assistant Sub- Inspector(Radio) on 25.02.2016, all of a sudden, the impugned order Annexure P/1 and P/2 were issued whereby it was intimated to the petitioner that he was not entitled for time scale of pay as he was promoted to the post of Head Constable (Radio) on 31.10.2002.

Considering the objections raised by the Treasury, the impugned orders were passed and recovery was ordered. Petitioner has challenged Annexure P/1 and P/2 dated 07.03.2019 and 11.02.2019 respectively in the present petition mainly on the ground that the petitioner was not at fault for extending the benefit of time pay scale and therefore, no amount can be recovered from the petitioner in view of the law laid down in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 334.

4. Learned counsel for petitioner further relied upon the order passed by the Co-ordinate Bench of this Court in W.P. 16054/2018 dated 14.07.2023 (Gangaram Vs. State of Madhya Pradesh and others) wherein in the similar circumstances, after considering the judgment passed in the matter of Pratap Narayan Vishwakarma Vs. State of M.P. and others, 2016 (4) MPLJ 491 order of recovery was quashed and Court also issued direction for fixation of the salary of petitioner therein w.e.f. 01.04.2006. The relevant paragraphs of the said order reads as under-

4. Facts of the case are that the petitioner was initially appointed on the post of Constable (Radio) and, thereafter, he was promoted as Head Constable (Radio) and again promoted as Assistant Sub-Inspector (Radio) in Police department. At present he is working on the post of Assistant Sub-Inspector (Radio). The respondents passed the impugned order of recovery mainly on the ground that the petitioner was wrongly given the pay scale as he has already got the promotion and, therefore, in view of the

circular dated 13/11/2009, Annexure R-1, the petitioner was not entitled for first time bound pay scale in his salary.

5. Counsel for the petitioner submits that the aforesaid

circular has already been quashed by this Court in the

case of Pratap Narayan Vishwakarma Vs. State of M.P.

and others, 2016 (4) MPLJ 491. In that case, after

considering the submissions made by the parties the writ

petition was allowed mainly on the ground that the

circular dated 13/11/2009 by which the previous circular

dated 1/4/2008 was clarified, could not be applied to the

case of the petitioner as the said circular was prospective

in nature. The circular was quashed being discriminatory

and violative of provisions of Article 14 of the

Constitution of India. The order dated 16/1/2017 was

challenged by way of intra Court appeal in Writ Appeal.

The said appeal was dismissed by order dated 13/3/2018.

The relevant paras of the order passed by the Division

Bench reads as under :-

"4.After considering the submission made by the parties the learned single judge has allowed the writ petition mainly on the ground that the circular dated 13/11/2009, by which the previous circular dated 1/4/2008 was clarified would not apply to the case of the present writ petitioner as the same circular has got only prospective effect.

5.In the case of Pradeep Narayan Vishwakarma (supra) this Court has quashed the circular dated 13/11/2009 being violative of the provisions of Article 14 of the Constitution of India and the same has been held to be discriminatory and creating a class within a class. It has not been pointed out that the judgment passed in the case of Pradeep Narayan Vishwakarma (supra) has been over ruled. Since the circular dated 13/11/2009 itself has been held to be void and has been quashed by this Court the contention of the appellants cannot be accepted that the writ petitioner is not entitled for the benefit of time scale pay in the light of the Clarification No.3 of circular dated 13/11/2009. We may not in agreement with the reasoning given by the learned Single Judge but since the relevant Clause-3 of the circular dated 13/11/2009 has already been quashed by this Court and the said order has not been overruled by any Court of law, therefore, we do not find any error in the order of the learned Single Judge

quashing the order dated 11/8/2015 denying the time scale pay to the writ petitioner and directing for the payment of the said time scale pay."

6. Relying on the aforesaid judgment, a co-ordinate Bench

of this Court at Jabalpur in W.P. No.7091/2020 (Chiran

Sumer (supra) )and other connected batch of petitions

while allowing the said petitions quashed the impugned

order and directed to make fixation of salary of the

petitioner w.e.f 1/4/2006 and further directed to refund the

amount recovered from the petitioner.

7. Counsel for the State supports the order of recovery and

submits that the order relied by the petitioner was only in

respect of petitioners and it was not applicable to all the

employees.

8. After hearing learned counsel for the parties, I find that

the case of the petitioner is squarely covered by the order

passed by the co-ordinate Bench of this Court in W.P.

No.7091/2020 (Chiran Sumer (supra)) and other

connected petitions. The respondents relied on the

circular dated 13/11/2009 which has been annexed as

Annexure R-1. The said circular has already been

quashed by this Court in the case of Pratap Narayan

Vishwakarma (supra) which has been affirmed by the

Division Bench. The order passed by the Division Bench

has been referred by a co-ordinate Bench of this Court in

W.P.7091/2020.

9. In view of the aforesaid, the present petition is allowed.

The impugned orders of recovery are quashed. The

respondents are directed to make fixation of salary of the

petitioner as per order dated 5/5/2012 w.e.f 1/4/2006. The

aforesaid exercise shall be carried out within period of 3

months from the date of communication of the order and

the petitioner shall be granted consequential benefits. The

respondents are directed to refund the amount recovered

from the petitioner (if any).

5. Learned counsel for petitioner further submitted that petitioner is entitled for the interest on the amount which was already been recovered from him and the interest may be awarded to him.

6. Per contra, learned Government Advocate, appearing on behalf of the respondent/employer opposed the prayer mainly on the ground that grant of time pay scale is available only to an employee who could not be promoted during his/her service tenure despite having been eligible whereas in the present matter, petitioner was promoted to the post of Head Constable (Radio) on 31.10.2002 and thereafter he was extended the benefit of the time pay scale which is not in accordance with the direction dated 13.11.2009 and therefore, the Department has rightly passed the order of recovery and quashed earlier fixation of pay. He relied upon the judgment passed by the Apex Court in the matter of High Court of Punjab and Haryana Vs. Jagdev Singh reported in AIR 2016 SC 3523 and submitted that at the time of taking benefit of refixation, the petitioner has submitted an undertaking to the Department and in view of the said undertaking, Department is entitled to recover the amount which was wrongly paid to the petitioner. He further submitted that if any undertaking is furnished by employee at the time of grant of benefit of pay refixation, the said undertaking is enforceable until and unless it is proved that the undertaking was not given voluntarily. He further relied upon the judgment of Full Bench passed in Writ Appeal No.815/2017 (State of Madhya Pradesh and others Vs. Jadish Prasad Dubey and others) wherein questions of recovery were decided by the Full Bench of this Court. The same is reproduced as under:-

QUESTIONS:-

Thus, there is a divergent view of different Benches of this Court. Therefore, to resolve the

conflict, we refer the matter to Larger Bench to consider the following questions:

1. Whether the recovery can be ordered to be affected from the pensionary benefits or from the salary in view of an undertaking or Indemnity Bond taken by the employer before the grant of benefit of pay refixation.

2. 2. Whether the recovery on account of excess payment to an employee can be made in exercise of power conferred under Rule 65 of M.P Civil Services Pension Rules, 1976.

3. 3. Whether the undertaking sought at the time of grant of financial benefits on account of refixation of pay is a forced undertaking and thus not enforceable in light of judgment of Supreme Court in (1986) 3 SCC 136 (Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another).

4. 4. Any other question which is raised for decision before the Larger Bench or which the Larger Bench considers arising out of the issues canvased.

ANSWERS TO THE QUESTIONS REFERRED:-

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.

7. On the strength of judgment delivered by the Full Bench of this Court, learned advocate for respondent submitted that order passed by the Superintendent of Police (Radio), Gwalior Zone is in accordance with law and it does not require interference.

8. After considering the arguments advanced by the learned counsels for the rival parties, it appears that it is not in dispute that benefit of time scale pay was extended to the petitioner from 01.01.2006 and as per circular dated 13.11.2009, he was not entitled for the benefit as he was already promoted as Head Constable(Radio) on 31.10.2002. Coming to the fact that whether that amount can be recovered or not? It is brought on record by the respondents that at the time of extending benefit of time scale pay, petitioner has submitted an undertaking which is placed on record by the learned counsel for respondents/State and as per the undertaking, the petitioner had undertaken to repay the amount, if it was found that the same was extended to him erroneously. In the matter of High Court of Punjab and Haryana Vs. Jagdev Singh (supra), the Apex Court has held that if any undertaking is submitted at the time of grant of financial benefits on account of refixation of pay, the amount is refundable to the Government or the same is adjustable in future, and therefore, the action of the respondent/Department appears to be correct.

Full Bench of this Court, in the matter of State of Madhya Pradesh and others Vs. Jadish Prasad Dubey and others (supra) has answered the question No.3 by holding that the undertaking given by the employee at the time of grant of financial benefits on account of refixation of pay is forced and the same is not forcible in the light of the Judgment of Hon'ble Supreme Court in the case of Central Inland Water Transport Corporation Ltd. and another Vs. Brojo Nath Ganguly and another (1986) 3 SCC 136, unless the undertaking is given voluntarily meaning thereby that if undertaking is given voluntarily , recovery is permissible and if undertaking is forced, then no recovery is permissible.

9. In the present matter, respondent/State has not established that petitioner had given undertaking voluntarily. Therefore, the undertaking shall be treated as obtained forcefully and therefore, there is no circumstance available in the case to consider the undertaking, which was not given voluntarily. On the strength of undertaking, recovery can not be affected.

10. In the present petition, recovery was initiated on the basis of the clarification issued by the Circular dated 13.11.2009 whereby it was clarified that if an employee is already promoted, the benefit of time scale pay should not be extended to him. Clarification was issued to clarify the Circular dated 01.04.2006 by which the benefit was extended to petitioner. In the present matter also, to justify the order of recovery, respondent/State has relied on the Circular dated 13.11.2009. However, in the case of Pratap Narayan Vishwakarma Vs. State of M.P. (supra), this Court has already quashed the circular after considering the cirucular,

being discriminatory and violative of the Article 14 of the Constitution of India. The order was challenged before learned Division Bench and Division Bench has maintained the order whereby it was held that the circular was prospective in nature and the benefits which were already extended to the employees prior to the issuance of the circular cannot be withdrawn.

11. In the above conspectus, it appears that though benefit was extended, despite promotion, but the same was extended in furtherance of the Circular dated 01.04.2008 and recovery was initiated on the basis of the Circular dated 13.11.2009 which was quashed by the Co-ordinate Bench of this Court, therefore, no recovery is permissible though the petitioner has furnished the undertaking at the time of getting benefit of time scale pay. Consequently, the present petition is allowed and orders dated 07.03.2019 and 11.02.2019 are quashed. The amount recovered from the petitioner be returned to him with interest @ 4% per annum and the fixation of the salary of the petitioner be restored.

12. With the aforesaid, the instant petition stands disposed of.

                                                                 (VINAY SARAF)
                                                                    JUDGE
 vishal



VISHAL          Digitally signed by VISHAL UPADHYAY
                DN: c=IN, o=HIGH COURT OF MADHYA
                PRADESH BENCH GWALIOR, ou=HIGH COURT



UPADHYA
                OF MADHYA PRADESH BENCH GWALIOR,

2.5.4.20=5d5050008f4c040023a64cb030d9c80d 25cbf5f3eb4f56fa864a20db4fbe3d3e, postalCode=474001, st=Madhya Pradesh, serialNumber=637E939E833627AE8CC13D85E5

Y F2383A287E83C6CDFA6347A00E482772314FE9 , cn=VISHAL UPADHYAY Date: 2024.05.14 19:12:10 +05'30'