Madhya Pradesh High Court
Rajesh Shrivastava vs The State Of Madhya Pradesh on 12 August, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:17506
1 WP-2436-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 12th OF AUGUST, 2025
WRIT PETITION No. 2436 of 2024
RAJESH SHRIVASTAVA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
K.K.Sharma - Advocate for the petitioner.
Jitesh Sharma (ga) appearing on behalf of Advocate General.
ORDER
The petitioner has filed this writ petition challenging the order dated
3/6/2022 (Annexure P/1), whereby, an amount of Rs. 3,81,158/- has been
directed to be recovered from the petitioner.
2. The facts necessary for decision of this case are that the petitioner
retired from the post of Sub Engineer (Civil) w.e.f. 31/3/2022. After his
retirement, the impugned order was passed on 3/6/2022, whereby, an amount
of Rs. 3,81,158/- is directed to be recovered from the petitioner from his
retiral dues on account of excess payment made to him because of wrong
fixation of his salary.
3. From the impugned order, it is evident that the wrong payment
relates back to 1/7/2007.
4. Counsel for the petitioner submits that recovery of the excess
amount is not permissible in view of the judgment of this Court in the case of
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State of Madhya Pradesh & others Vs. Jagdish Prasad Dubey, (2024) 2
M.P.L.J. 198. He also relied upon the Apex Court decision in the case
of State of Punjab Vs. Rafiq Masih (White Washer), (2015) 4 SCC 334.
5. On the other hand, learned counsel for the State supported the
impugned order and submitted that due to wrong fixation of petitioner's
salary, he has been erroneously paid excess amount, therefore, the
respondents are entitled to recover the same. He thus, prays for dismissal of
the petitioner.
6. Considered the arguments and perused the record.
7. The Full Bench of this Court in the case of Jagdish Prasad Dubey
(supra), has dealt with the similar issue and held as under:
"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.
Converselyan 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
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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."
8. Further, the Apex Court has also dealt with the similar issue in the
case of Rafiq Masih (supra), wherein, the Apex Court held as under:-
"18. 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."
9. Considering the law laid down by the Full Bench of this Court in the
case of Jagdish Prasad Dubey (supra) , as also by the Apex Court in the case
o f Rafiq Masih (supra), the impugned recovery dated 3/6/2022, is
unsustainable and is accordingly, set aside. The respondents are directed to
refund the amount of Rs.3,81,158/- along with interest @ 6% per annum
from the date of its recovery till actual payment to the petitioner.
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10. Let the said exercise, as directed above, be completed within a
period of 90 days from the date of submission of certified copy of this order.
11. The petition is accordingly disposed of.
(ASHISH SHROTI)
JUDGE
JPS/-
