Smt Kamal Rojeskar vs State Of M.P. Through Department Of ...
2024 Latest Caselaw 14111 MP

Madhya Pradesh High Court

Smt Kamal Rojeskar vs State Of M.P. Through Department Of ... 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. 1476 of 2020

                           BETWEEN:-
                           SMT KAMAL ROJESKAR W/O SHRI ASHOK ROJESKAR,
                           AGED ABOUT 62 YEARS, OCCUPATION: RETIRED R/O:
                           42, LAXMAN NAGAR, DEWAS (MADHYA PRADESH)

                                                                                          .....PETITIONER
                           (BY SHRI RANJEET SEN - ADVOCATE)

                           AND
                           1.    STATE OF M.P. THROUGH PRINCIPAL SECRETARY
                                 DEPARTMENT OF PUBLIC HEALTH AND FAMILY
                                 WELFARE     VALLABH    BHAWAN,    BHOPAL
                                 (MADHYA PRADESH)

                           2.    CIVIL SURGEON    CUM    CHIEF HOSPITAL
                                 SUPERINTENDENT, DEWAS (MADHYA PRADESH)

                           3.    DISTRICT PENSION OFFICER DEWAS (MADHYA
                                 PRADESH)

                           4.    JOINT DIRECTOR TREASURY, ACCOUNTS AND
                                 P E N S I O N DIVISIONAL OFFICE, UJJAIN NEAR
                                 ISKON TEMPLE UJJAIN (MADHYA PRADESH)

                                                                                        .....RESPONDENTS
                           (BY SHRI PRAKHAR TRIVEDI - GOVERNMENT ADVOCATE)

                                 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 27.08.2019 (Annexure P/1) and 19.12.2016 (Annexure P/2) respectively, whereby recovery in the sum of

Rs.1,52,124/- (which includes principal amount as well as interest amount) has been directed to be made from him on account of excess payment.

02. The petitioner is a retired employee and has retired from the post of Civil Surgeon cum Chief Hospital Superintendent. From a perusal of the impugned order, it appears that recovery has been directed to be made due to wrong pay fixation.

03. The Full Bench of this Court at Principal Seat in Jabalpur in identical matters as 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 other connected writ petitions

reported in 2024 SCC online MP 1567. Relevant paragraph No.35 of the said judgment is reproduced below:-

"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."

04. In view of the above, the impugned recovery orders dated 27.08.2019 (Annexure P/1) and 19.12.2016 (Annexure P/2) are hereby quashed. The amount, if any, recovered from the petitioner be refunded to him alongwith 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.

05. The petition is accordingly allowed and disposed off.

(PRANAY VERMA) JUDGE Shilpa