Madhya Pradesh High Court
Dr. Nirmala vs The State Of Madhya Pradesh on 7 April, 2025
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
NEUTRAL CITATION NO. 2025:MPHC-IND:9353
1 WP-329-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 7 th OF APRIL, 2025
WRIT PETITION No. 329 of 2024
DR. NIRMALA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Harish Joshi - advocate for the petitioner.
Shri Vishal Panwar - PL for State.
ORDER
The petitioner was appointed on 18.06.1987 to the post of Asst.
Professor. When the respondent was not granting higher pay scale and
selection grade pay to the petitioner, the petitioner filed a writ petition before
this Hon'ble court and in compliance of the Hon'ble High Court order dated
23.04.12, respondent no.1 has granted senior pay scale w.e.f. 18.06.1995 and
selection grade pay w.e.f. 18.06.2000. The petitioner stood retired on
31.05.2022, and the respondents have not sanctioned pension, gratuity, and
other retiral benefit to the petitioner. This Hon'ble court vide order dated
05.10.23, asked the respondent to decide the representation of the petitioner
and the respondent has decided the representation of the petitioner vide order
dated. 20.10.2023. Thereafter, this Hon'ble Court vide order dated
07.11.2023 directed the OIC to remain present and in retaliation,
the respondent withheld the gratuity of the petitioner vide order dated
NEUTRAL CITATION NO. 2025:MPHC-IND:9353
2 WP-329-2024
8.11.2023. The respondent vide another order dated 09.11.2023, modified
the order dated 20.03.2013, and the senior grade pay has been sanctioned
from 01.04.2000 and the selection grade has been sanctioned from
01.10.2001. Further, the respondent no. 4 has issued recovery order dated
05.12.2023 against the petitioner and has made a false statement before this
Hon'ble Court on 05.12.2023 that all the dues have been paid to the
petitioner. Since the orders issued by the respondents are illegal, inoperative,
and without jurisdiction, the present petition is submitted for quashment of
those orders as well as for further directions to pay all the dues payable to
the petitioner within a specified time along with interest calculated @ 12 per
annum.
Counsel for the petitioner submits that the petitioner filed WP
No.1101/2010(s) challenging the order dated 9.10.2009 whereby the
representation of the petitioner for higher pay scale/selection grade pay scale
with effect from 18.6.1987 and 27.7.1998 was denied and he also sought a
direction to pay all the arrears and differences. The said petition was allowed
and the impugned order was set aside with a direction to the respondents to
consider the case of the petitioner for higher pay scale with effect from 1993
and for selection grade with effect from 27.7.1998 and it was further held
that the same could not have been denied on the basis of uncommunicated
ACRs. The respondents were directed to carry out the aforesaid directions
within a period of three months positively. Thereafter, the respondents
passed the order dated 9.11.2023 which has been challenged in the present
petition. He also referred the order passed by this Court in WP
NEUTRAL CITATION NO. 2025:MPHC-IND:9353
3 WP-329-2024
No.2852/2023 disposed off on 5.12.2023, in which it was directed that the
claims of the petitioner be settled as the PPO has been issued by the District
Pension Officer on 30.11.2023 for the release of 100% pension. In regard to
the other claims i.e. insurance, leave encashment etc, the same was already
paid and, therefore, the same was not adjudicated.
The respondents have filed the reply and submitted that the petitioner
has been paid the dues, except gratuity which was held up because of the
recovery due to the new fixation. It is argued that the recovery has been
ordered on account of excess payment made in basic salary to the petitioner
at the time of pay fixation of the petitioner's pay on 18.5.1988. The
petitioner was entitled to get pay of Rs.2200+DA instead of Rs.2275+DA
due to the date of completion of the probation period on 1.10.1990. She was
given excess payment of salary to the tune of Rs.2275/-, and this excess
payment was given in increasing order from 16.8.1988 to 1.1.2005. The
Treasury has raised an objection regarding the wrong fixation of the pay of
the petitioner.
Counsel for the petitioner argued that from the reply of the
respondents, it is clear that it is not the case of the respondents that there was
any fault of the petitioner or any misrepresentation or concealment of the
facts, therefore, the recovery cannot be made.
Per contra, learned counsel for State relied on the judgment passed in
the case of State of Punjab and Haryana Vs. Jagdevi Singh 2016 SCCOnline
SC 748 in which it was held that if there is an undertaking furnished by the
employee, the same can be recovered.
NEUTRAL CITATION NO. 2025:MPHC-IND:9353
4 WP-329-2024
After hearing learned counsel for parties, it is apposite to refer to
various judgments on the question of recovery of excess payment from the
retiral dues.
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 & Anr. vs.
Jagdish Prasad Dubey & Anr.) 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
NEUTRAL CITATION NO. 2025:MPHC-IND:9353
5 WP-329-2024
Ganguly and Another, reported in (1986) 3 SCC 136 unless the
undertaking is given voluntarily."
In view of the aforesaid answer of the full Bench, the recovery on the
basis of an undertaking/indemnity bond the recovery cannot be made on the
earlier fixation of pay. Apart from that, the recovery of the excess amount
paid as salary cannot be recovered from a retired Government servant.
Admittedly in the present case procedure for recovery prescribed under Rule
65 and 66 of Chapter VIII of M.P. Civil Services Pension Rules, 1976 are
not followed.
Counsel for the petitioner submits that the recovery from the petitioner
cannot be made as there is no misrepresentation or fraud committed by the
petitioner in fixation of pay. He has relied on the judgment passed by the
Apex Court in the case of Shyam Babu Verma Vs. Union of india, 1994(2)
SCC 521, Sahib Ram Vs. State of Haryana , 1995 Supp (1) SCC 18, Chandi
Prasad Uniyal Vs. State of Uttarakhand, (2012) 8 SCC 417 and Syed Abdul
Kadir Vs. State of Bihar, (2009) 3 SCC 475 and Yogeshwar Prasad Vs.
National Institute of Education Planning, (2010) 14 SCC 323.
In the light of the aforesaid judgments, if the facts of the present case
are examined, it is pellucid that the recovery is being made only on the
ground of wrong fixation of pay and undertaking. It is not the case of the
respondents that there was any misrepresentation or cheating committed by
the employee, and the amount was paid by the respondents. Upon perusal of
the undertaking Annexure R/2, this Court finds that the undertaking is of year
1999 whereas the alleged excess payment is for the period of 1993, therefore,
the aforesaid undertaking would not be relevant for recovery of the excess
NEUTRAL CITATION NO. 2025:MPHC-IND:9353
6 WP-329-2024
amount.
In view of the aforesaid, the petition is allowed. The impugned orders
of recovery is quashed. The respondents shall release the retiral dues of the
petitioner without any further delay, and the same shall be paid to the
petitioner in accordance with law within a period of 60 days from the date of
communication of the order passed today.
With the aforesaid, the petition is allowed and disposed off.
(VIJAY KUMAR SHUKLA)
JUDGE
VM
