Madhya Pradesh High Court
The State Of Madhya Pradesh vs Arun Kashyap on 22 May, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 22 nd OF MAY, 2024
WRIT APPEAL No. 546 of 2024
BETWEEN:-
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY, VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. THE DIRECTOR GENERAL OF POLICE, POLICE
HEADQUARTERS JAHANGIRABAD, BHOPAL
(MADHYA PRADESH)
3. COMMANDANT HOC FORCE, POLICE
HEADQUARTERS, BHOPAL (MADHYA PRADESH)
4. THE ADDITIONAL DIRECTOR GENERAL OF
POLICE (WELFARE/ ACCOUNTS) POLICE
HEADQUARTERS BHOPAL DIST. BHOPAL
(MADHYA PRADESH)
5. THE ADDITIONAL DIRECTOR GENERAL OF
POLICE A.N.O. POLICE HEADQUARTERS, BHOPAL
(MADHYA PRADESH)
.....APPELLANTS
( SHRI BHUWAN GAUTAM, LEARNED GOVT. ADVOCATE FOR THE
APPELLANTS/STATE)
AND
1. ARUN KASHYAP S/O LATE ASHOK KUMAR
KASHYAP, SERVICE POLICE TRAINING COLLEGE
PTC MUSAKHEDI INDOR (MADHYA PRADESH)
2. SANTOSH HADA S/O SHRI HARISH HADA, GOVT.
SERVICE, POLICE TRAINING COLLEGE(PTC),
MUSAKHEDI, INDORE (MADHYA PRADESH)
3. VINOD KUMAR BAGHEL S/O SHRI B.S. BAGHEL,
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 27-05-2024
17:59:07
2
OCCUPATION: GOVT. SERVICE, MUSAKHEDI,
INDORE (MADHYA PRADESH)
.....RESPONDENTS
This appeal coming on for admission this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
ORDER
Heard on I.A.No.1855/2024, application for condonation of delay.
For the reasons stated in the application, the same is allowed. Delay of
641 days in filing the appeal is hereby condoned.
2. This Intra Court appeal takes an exception to the order dated
07.02.2022(Annexure-A/1), passed by the learned Single Judge in Writ Petition
No.13999/2020, whereby the writ petition filed by the original
petitioner/respondent herein has been allowed on the same terms as contained in
the order passed in the case of W.P. No.13509/2020 dated 05.01.2022 by
directing the appellants to refund the amount already recovered from the
respondents within a period of three months from the date of receipt of certified
copy of the order and in case, the amount is not refunded within the said period
the same shall carry 6% interest per annum till the date of payment.
3. The brief facts of the case are that the respondents/petitioners were
working as Assistant Commandant/Sub-Inspectors(Class-III Employees). The
respondents being the members of Hawk Force were extended the benefit of
payment of Nexalite Operation Risk Allowance @ 70% of the Basic Pay
pursuant to the order dated 18.08.2020 passed by the State Government. The
aforesaid benefit continued to be extended to the respondents. However, on the
enforcement of Gazette Notification dated 20.07.2017 when the pay of the writ
petitioners was fixed in the 7th Pay Commission, then as per provisions
contained in the M.P. Pay Revision Rules, 2017 and the clarifactory circular
dated 22.07.2017 issued by the Finance Department, fixation of Nexalite
Operation Risk Allowance to the writ petitioners ought to have been continued
on the basis of their basic pay under 6th Pay Commission, however, the same
was erroneously fixed on the basis of basic pay of 7th Pay Commission and
arrears were accordingly calculated and payments were made to the writ
petitioners which continued upto 2018-2019.
4. Learned counsel for the appellant submits that order dated 07.02.2022
passed by the learned Single Judge in W.P. No.13999/2020 is not in
consonance with law. and same deserves to be set aside. The learned Single
Judge allowed the writ petition relying on the judgment passed by the Apex
Court in case of State of Punjab and Ors. Vs. Rafiq Masih (White
Washer), (2015) 4 SCC 334. The learned Single Judge ought to have
appreciated that the money paid in excess to the entitlement of the writ
petitioners was on account of erroneous pay fixation and was the money
belonging to the public exchequer. Moreover, the mistake committed in pay
fixation and benefit extended to the writ petitioners between year 2018-19 was
immediately rectified and the recovery order was passed within short period of
2 years from the date of erroneous payment and there is absolutely no finding
recorded by the learned Single Judge that if the recovery is made from the
employees, same would be iniquitous or harsh or arbitrary to such an extent as
would far out way the equitable balance of the employer's right to recovery. In
such circumstances, principles laid down in the case of State of Punjab and
Ors. Vs. Rafiq Masih(Supra), were not at all attracted and unjust enrichment
to the writ petitioners at the cost of public exchequer ought not to have been
allowed.
5. Learned counsel for the appellants by placing reliance on the
subsequent judgment passed by the Apex Court in the case of High Court of
Punjab & Haryana & others Vs. Jagdev Singh, (2016) 14 SCC 267
submitted that the recovery could have been made from the
respondents/petitioners. Hence, the order impugned deserves to be set aside.
6. Heard the learned counsel for the appellants/State and perused the
record.
7. It is not in dispute that the respondents/petitioners, were working as
Assistant Commandant/Sub-Inspectors(Class-III Employees) in the appellant's
departments/Hawk Force. Further, the appellants failed to point out that under
which provision of law the impugned order is being passed. The appellants
erred in interpreting risk allowance. There is no misrepresentation on the part of
the respondents as they have neither furnished any wrong information nor
submitted any false documents for the purpose of withdrawal of the amount
from the Govt. fund. The respondents received the additional allowance of 70%
of their basic salary as a Risk Allowance, which is given to the Special Force
with the object that the members of the Force are facing the life risk, for which
the respondents are entitled. Hence, this case is covered by the judgment of
Rafiq Masih (supra), the principles laid down in the said case would be
applicable in the present case. The judgment passed in the case of Jagdev
Singh (supra) was on a different set of facts. In the said case, the employee
had given an undertaking that any excess amount which may be found to have
been paid will be refunded to the Government either by adjustment against
future payment due or otherwise. In the present case, the appellants have failed
to bring on record any undertaking given by the respondents/petitioners in this
regard. Further they have failed to point out any suppression or
misrepresentation of facts on the part of employee to get benefit of time scale
of pay.
8. In view of the aforesaid submissions, we do not find any error in the
order passed by the learned Single Judge warranting reconsideration.
Accordingly, finding no ground to interfere into the matter, this appeal is
dismissed at the admission stage itself.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
pn
