Smt Penji Masiha vs The State Of Madhya Pradesh
2024 Latest Caselaw 14091 MP

Madhya Pradesh High Court

Smt Penji Masiha vs The State Of Madhya Pradesh on 14 May, 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 14 th OF MAY, 2024
                                              WRIT PETITION No. 20819 of 2017

                           BETWEEN:-
                           SMT PENJI MASIHA W/O FIROZ MASIHA, AGED ABOUT
                           65 YEARS, OCCUPATION: RETIRED MATERAN, ADD: 223
                           A VIDHYAPATI NAGAR UJJAIN (MADHYA PRADESH)

                                                                                          .....PETITIONER
                           (BY SHRI RAKESH PAL - ADVOCATE)

                           AND
                           1.    THE STATE OF MADHYA PRADESH PRINCIPAL
                                 SECRETARY PUBLIC HEALTH DEPARTMENT
                                 VALLABH BHAWAN BHOPAL (MADHYA PRADESH)

                           2.    CHIEF MEDICAL AND HEALTH OFFICER,
                                 DISTRICT UJJAIN (MADHYA PRADESH)

                           3.    CIVIL SURGEON/CHIEF HOSPITAL INCHARGE,
                                 DISTRICT UJJAIN (MADHYA PRADESH)

                           4.    JOINT DIRECTOR TREASURY ACCOUNTS AND
                                 PEN SION , UJJAIN-DIVISION- DIVISION, UJJAIN
                                 (MADHYA PRADESH)

                                                                                        .....RESPONDENTS
                           (BY SHRI PRAKHAR TRIVEDI ON BEHALF OF SR SAXENA- ADVOCATE
                           FOR THE RESPONDENTS)

                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                              ORDER

The petitioner has filed the present writ petition under Article 226 of the Constitution of India challenging the order dated 21.10.2016 (Annexure P/2) passed by the respondents whereby a total sum of Rs.2,41,511/- (which

includes principal as well as interest amount) has been directed to be recovered from her on account of excess payment.

2. The petitioner has retired from the post of 'Lady Health Visitor'. From perusal of the impugned order, it appears that recovery has been directed to be made due to wrong pay fixation.

3. The Full Bench of this Court at Principal Seat, Jabalpur in identical matters has quashed such recovery orders by judgment dated 06.03.2024 passed in Writ Appeal No.815 of 2017 [State of Madhya Pradesh and Another vs. Jagdish Prasad Dubey and Another] and connected writ petitions reported in 2024 SCC online MP 1567. It has been held in paragraph

No.35 as under:

"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 and Another vs. Brojo Nath Ganguly and Another, reported in (1986) 3 SCC 136 unless the undertaking is given voluntarily."

4. In view of the above the order dated 21.10.2016 (Annexure P/2) passed by the respondents is hereby quashed. The amount, if any, recovered from the petitioner be refunded to her along with interest @ 6% per annum from the date of recovery till date of payment. Let the same be done within a period of three months from the date of receipt of certified copy of this order. The pay fixation of the petitioner is however maintained.

5. The petition is accordingly allowed and disposed off.

(PRANAY VERMA) JUDGE jyoti