Madhya Pradesh High Court
The Mp State Agricult Marketing Board vs Santosh Kumar Rathore on 17 April, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:17934
1 WA-594-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 17th OF APRIL, 2025
WRIT APPEAL No. 594 of 2025
THE MP STATE AGRICULT MARKETING BOARD AND OTHERS
Versus
SANTOSH KUMAR RATHORE AND OTHERS
Appearance:
Shri Rohit Jain - Advocate for the appellants.
Shri Sanjay K. Agrawal - Senior Advocate assisted by Ms. Sharon
Agrawal - Advocate for the respondent.
Shri Ritwik Parashar - Government Advocate for State.
ORDER
Per: Hon'ble Shri Justice Suresh Kumar Kait, Chief Justice
Learned counsel appearing on behalf of appellants submits that the
writ petitioner was initially inducted in service on the post of Nakedar in the
year 1985 with having qualification of 8th pass. A career advancement
scheme was introduced by the Government to overcome the stagnation
policy therefor. The said scheme provided that financial upgradation is to be
extended to the employee who has the required qualification of promotional
post. Clause 4 of the Circular dated 24.1.2008 which is relevant is
reproduced hereunder :-
NEUTRAL CITATION NO. 2025:MPHC-JBP:17934
2 WA-594-2025
"इस योजना तगत उ चतर वेतनमान का लाभ ा करने के िलये
शासक य सेवक को उन अहताओं को पूण करना होगा जो पदो नित के
िलये िनधा रत है । य द सेवा भत िनयम के अंतगत जस संवग म
पदो नित होती है उसका वेतनमान इस योजना के अ तगत वीकत
उ चतर वेतनमान से भी उ चतर है तो सीधी भत वाले संवग का
ण
े ीकरण किन ण
े ीवर ण
े ी तथा वर ण
े ी जैसा उपयु हो, म
कया जायेगा। य द इस योजना तगत दे य उ चतर वेतनमान पदो नत
संवग के वेतनमान से उ चतर है , तो इस योजना अ तगत ा होने
वाला उ चतर वेतनमान य गत वेतन के प म ह दे य होगा और
इसके िलये सेवा भत िनयम म सीधी भत वाले संवग का पथक से
णे ीकरण करने क आव यकता नह ं होगी।"
2. It is not in dispute that the writ petitioner is not having the
qualification for the promotional post, i.e. Mandi Inspector. However,
qualification for the post is Matric Pass or High School Pass. As argued by
the counsel for appellant that due to inadvertence or by mistake, the benefit
of the second time-scale of pay was extended to the writ petitioner. The
aforesaid aspect has not been disputed by the writ petitioner. The relevant
qualification of Mandi Inspector in terms of the Madhya Pradesh State
Mandi Board Services Regulations, 1998 is as under:
"1 कसी मा यता ा व स व ालय से नानको र । 2 कसी मा यता
ा व व ालय से नातक ।"
3. It is not in dispute that since writ petitioner was not having the
qualification, he was not entitled for grant of said benefit.
4. The writ Court has considered the rival contentions of the parties
and observed that as far as the recovery to be made from the petitioner
pursuant to the impugned order concerned, it is a case where the benefit was
extended to the petitioner vide order dated 30.12.2011 with effect from
01.04.2006. The said order was directed to be withdrawn vide impugned
NEUTRAL CITATION NO. 2025:MPHC-JBP:17934
3 WA-594-2025
order dated 10.12.2018, i.e. after a lapse of almost 07 years from the date of
issuance. No material is produced on record that the petitioner has ever
misrepresented with the authorities asking for the said benefit. The petitioner
being Class-III employee is also not disputed by the appellant-State
authorities. Accordingly, the writ Court disposed the petition in terms of the
judgment passed by the Hon'ble Supreme Court in the case of Rafiq Masih
reported in 2015(4) SCC 334 wherein certain guidelines have been framed
which are as under :-
"It is not possible to postulate all situations of hardship, which
would govern employees on the issue of recovery, where
payments have mistakenly been made by the employer, in excess
of their entitlement. Be that as it may, based on the decisions
referred to herein above, we may, as a ready reference, summarise
the following few situations, wherein recoveries by the employers,
would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-
IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due
to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been
made for a period in excess of five years, before the order of
recovery Is issued.
(iv) Recovery in cases where an employee has wrongfully been
required to discharge duties of a higher post, and has been paid
accordingly, even though he should have rightfully been required
to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion,
that recovery if made from the employee, would be iniquitous or
harsh or arbitrary to such an extent, as would far outweigh the
equitable balance of the employer's right to recover."
5. The judgment in the case of Rafiq Masih (supra) was further
considered by the Full Bench of this Court in the case of Jagdish Prasad
Dubey (supra) and it is held as under:
"35.(a) Question No.1 is answered by holding that
NEUTRAL CITATION NO. 2025:MPHC-JBP:17934
4 WA-594-2025
recovery can been 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 (supra) unless the undertaking is
given voluntarily.
6. First of all there was no misrepresentation from the writ petitioner,
second there was no undertaking given by the petitioner that excess amount
if any paid shall be refunded to the appellant-authorities.
7. It is also not in dispute that the writ petitioner was a Class-III
employee therefore, the writ Court has rightly while relying upon a case of
Masih allowed the writ petition filed by the petitioner by setting aside
NEUTRAL CITATION NO. 2025:MPHC-JBP:17934
5 WA-594-2025
recovery part only.
8. In view of the above, finding no merit in the present appeal, the
same is accordingly, dismissed.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIEF JUSTICE JUDGE
NP
