Madhya Pradesh High Court
Suresh Parmar vs Public Health Department on 8 April, 2025
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 8 th OF APRIL, 2025
WRIT PETITION No. 7332 of 2016
SURESH PARMAR
Versus
PUBLIC HEALTH DEPARTMENT AND OTHERS
Appearance:
None for the petitioner.
Shri Sudarshan Joshi - GA for the State.
ORDER
The present petition is filed by a government servant challenging the
order dated 05.07.2016 and 11.07.2016 whereby a recovery has been directed
to be made from him. However, during the pendency of the petition, the
petitioner has retired from the government services. The aforesaid recovery
has been directed to be made on the ground of wrong fixation of pay.
2. The respondents have also stated in paragraph-9 of the reply that the
aforesaid recovery is permissible in view of the undertaking submitted by the
petitioner Annexure-R/5.
3. After hearing learned counsel for the respondents and upon perusal
of the record, this Court finds that this is not the case of the respondents that
any misrepresentation, cheating or fraud was committed by the employee in
the fixation of the pay. The undertaking which has been filed by the
respondents is undated and therefore, the same cannot be considered to be an
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undertaking in respect of the recovery of the amount in pursuant to the
wrong fixation of pay.
4. 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
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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."
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.
5. It is noted that the recovery from the petitioner cannot be made as
there is no misrepresentation or fraud committed by the petitioner in fixation
of pay. 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
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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.
6. In view of the above, the impugned recovery orders dated
05.07.2016 and 11.07.2016 is hereby quashed. The amount, if any,
recovered from the petitioner be refunded to him along with interest at the
rate of 6% per annum from the date of recovery till date of payment. Let the
same be done within a period of 3 months from the date of receipt of a
certified copy of this order. The pay fixation of the petitioner is however
maintained.
The petition is accordingly allowed and disposed off.
(VIJAY KUMAR SHUKLA)
JUDGE
ajit
