Madhya Pradesh High Court
Jyotsna Swamy vs Madhya Pradesh State Co-Operative ... on 30 May, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 30 th OF MAY, 2024
WRIT PETITION No. 877 of 2022
BETWEEN:-
JYOTSNA SWAMY W/O SHRI ARVIND SWAMY, AGED
ABOUT 63 YEARS, OCCUPATION: RETIRED. LECTURE,
GOVT. KAMLA NEHRU GIRLS HIGHER SECONDARY
SCHOOL WARASEONI R/O- WARD NO.11, MISSION
COMOUND, NEAR BUS STAND, DISTRICT - BALAGHAT
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI R.N.VISHWAKARMA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
SECRETARY, SCHOOL EDUCATION
DEPARTMENT, VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
2. THE COMMISSIONER PUBLIC INSTRUCTION
GAUTAM NAGAR BHOPAL DISTRICT BHOPAL
(MADHYA PRADESH)
3. THE JOINT DIRECTOR TREASURY AND ACCOUNT
OFFICER, JABALPUR JABALPUR DIVISION
DISTRICT JABALPUR (MADHYA PRADESH)
4. DISTRICT PENSION OFFICER BALAGHAT
DISTRICT BALAGHAT (MADHYA PRADESH)
5. DISTRICT TREASURY OFFICER BALAGHAT
DISTRICT BALAGHAT (MADHYA PRADESH)
6. DISTRICT EDUCATION OFFICER BALAGHAT
DISTRICT BALAGHAT (MADHYA PRADESH)
7. PRINCIPAL GOVERNMENT KAMLA NEHRU GIRLS
HIGHER SECONDARY SCHOOL WARASEONI
DISTRICT BALAGHAT (MADHYA PRADESH)
Signature Not Verified
Signed by: ANINDYA
SUNDAR MUKHOPADHYAY
Signing time: 5/31/2024
12:49:50 PM
2
.....RESPONDENTS
(BY SHRI S.S.CHAUHAN - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This petition has been filed seeking the following reliefs -
"7.1 The Hon'ble High Court kindly be pleased to quash the impugned
order of recovery dated 30.07.2006 to 31.12.2015 passed by
respondent No.7 (Annexure -P/8) and allowed the higher pay scale.
7.2. Any other suitable relief deem fit under the circumstances of the
case may also kindly be granted to gather with cost of the petition."
2. T he record indicates that the petitioner stood retired from the post of
Upper Division Teacher on 31.12.2020 and after his superannuation, the
recovery orders dated 30.07.2006 to 31.12.2015 has been passed whereby
recovery of Rs.9,22,466/- was ordered. It is submitted that the recovery has
been ordered by the respondent-authority towards the excess payment made to
the petitioner along with interest.
3. The learned State counsel has submitted that if representation is submitted
by the petitioner to the concerning authorities, they will consider the grievance
of the petitioner and settle the dispute in the light of a Full Bench decision of
this Court in a reference in Writ Appeal No.815 of 2017 (State of M.P. and
others vs Jagdish Prasad Dubey) dated 06.03.2024 and this petition can be
disposed off in the light of the aforesaid Full Bench decision of this Court.
4. A Full Bench of this Court in the case of State of M.P. and others vs
Jagdish Prasad Dubey (supra) while dealing with the issue as to recovery after
retirement, has held as follows :
"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
i n (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."
5. I n view whereof, and on hearing the contentions, this Court deems it
appropriate to dispose off the writ petition by directing the petitioner to file a
representation in this regard within a period of 15 days from the date of receipt
of certified copy of this order to the respondent No.1 who, in turn, is directed
to decide the same within a period of 45 days in the light of Full Bench decision
of this Court in the case of State of M.P. and others vs Jagdish Prasad
Dubey (supra).
6. Till the decision is taken by the authorities, no recovery will be made from
the petitioner. The impugned orders dated 30.07.2006 to 31.12.2015 is quashed.
Let a fresh decision be taken by the respondent No.1 on the representation of
the petitioner in the light of the observations made in the Full Bench decision of
this Court in the case of State of M.P. and others vs Jagdish Prasad Dubey
(supra).
7. With these observations, the petition is disposed off finally. No order as
to costs.
(VISHAL MISHRA)
JUDGE
AM
