Madhya Pradesh High Court
Hariya Pachurekar vs Department Of Tribal Affairs on 21 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 21 st OF MAY, 2024
WRIT PETITION No. 11726 of 2019
BETWEEN:-
HARIYA PACHUREKAR S/O SHRI BALUJI PACHUREKAR,
AGED ABOUT 62 YEARS, OCCUPATION: PENSIONER,
R/O: 68 PALASIA TEHSIL DHARAMPURI, DIST. DHAR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI L. C. PATNE - ADVOCATE)
AND
1. STATE OF MP 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, GOVT. BOYS' HIGHER
SECONDARY SCHOOL DAMNOD DHAR (MADHYA
PRADESH)
4. DISTRICT PENSION OFFICER DHAR (MADHYA
PRADESH)
5. THE ACCOUNTANT GENERAL OF MP.
MOTIMAHAL GWALIOR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SUDARSHAN JOSHI - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The petitioner has filed the present petition under Article 226 of the
Constitution of India, challenging the order dated 06.02.2019 (Annexure P/2)
passed by the respondents whereby a total sum of Rs.3,58,076/- (which
includes principal as well as interest amount) has been directed to be recovered
from him on account of excess payment.
2. The petitioner has retired from the post of Upper Division Teacher.
From perusal of the impugned order, it appears that recovery has been directed
to be made from the petitioner 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 06.02.2019 (Annexure P/2)
passed by the respondents is hereby quashed. The amount, if any, recovered
from the petitioner be refunded to him 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. Learned counsel for the petitioner has further submitted that in respect
of the relief as regards payment of full GPF and leave encashment to the
petitioner, he may be permitted to make a representation to the respondents /
competent authority which may be directed to be decided in accordance with
law. The prayer is reasonable hence it is directed that if the petitioner makes a
representation before the respondents for payment of full GPF to him and also
for making payment of leave encashment equal to 240 days of leave salary, then
the said representation shall be decided by the respondents / competent
authority within a period of three months from the date of receipt of the same
by passing a reasoned and a speaking order.
6. With the aforesaid, the petition stands allowed and disposed off.
(PRANAY VERMA)
JUDGE
Shilpa
