Madhya Pradesh High Court
Jyoti Shah vs Public Health Engineering Department on 21 February, 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 21st OF FEBRUARY, 2025
WRIT PETITION No. 8947 of 2021
JYOTI SHAH
Versus
PUBLIC HEALTH ENGINEERING DEPARTMENT AND OTHERS
Appearance:
Shri Sanjay Jamindar - advocate for the petitioner.
Shri Kushagra Jain - Dy.GA for State.
ORDER
The petitioner who is a retired government servant is challenging the
legality and validity of the order dated 8.2.2021 passed by respondent No.3
by which the benefit of a second time scale of pay has been cancelled and the
recovery has been ordered.
Counsel for the petitioner submits that the aforesaid recovery is being
sought on the ground that the petitioner was wrongly paid an excess amount
of Rs.2,29,388/-. It is argued that the recovery is illegal as there was no
misrepresentation, cheating, or fraud committed by the petitioner.
Counsel for State supports the order and submits that the petitioner
was not entitled to the aforesaid time scale pay and there was an undertaking
as well.
The Full Bench of this Court at Principal Seat, Jabalpur in identical
matters has quashed such recovery orders by judgment dated 06.03.2024
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passed in Writ Appeal No.815 of 2017(State of Madhya Pradesh and
Another vs. Jagdish Prasad Dubey and Another) 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).
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 the 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 the case of Shyam Babu Verma vs. Union of India, (1994) 2 SCC
521, the Apex Court while observing that the petitioners therein were not
entitled to the higher pay scales, had come to the conclusion that since the
amount has already been paid to the petitioner, for no fault of theirs, the said
amount shall not be recovered by the respondent/Union of India. The
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observation made by the Apex Court in the said case is as under:-
''Although we have held that the petitioners were entitled only to
the pay scale of Rs.330-480 in terms of the recommendations of
the Third Pay Commission w.e.f. January 1, 1973 and only after
the period of 10 years, they became entitled to the pay scale of
Rs.330-506 but as they have received the scale of Rs.330-560
since 1973 due to no fault of theirs and that scale is being reduced
in the year 1984 with effect from January 1, 1973, it shall only be
just and proper not to recover any excess amount which has
already been paid to them.''
In the case of Sahib Verma vs. State of Haryana (1995) Supp. (1)
SCC 18, the Apex Court once again held that although the employee did not
possess the required educational qualification, yet the Principal granting him
the relaxation,, had paid the salary on the revised pay scale. It was further
observed that the said payment was not on account of misrepresentation by
the employee, but by a mistake committed by the department and, therefore,
the recovery could not have been made. The relevant observation of the
Apex Court is reproduced as under:-
''Admittedly the appellant does not possess the required
educational qualifications. Under the circumstances the appellant
would not be entitled to the relaxation. The principal erred in
granting him the relaxation. Since the date of relaxation the
appellant had been paid his salary on the revised scale. However,
it is not on account of any misrepresentation made by the
appellant that the benefit of the higher pay scale was given to him
but by wrong construction made by the Principal for which
appellant cannot be held to be fault. Under the circumstances the
amount paid till date may not be recovered from the appellant."
In the case of Syed Abdul Kadir vs. State of Bihar (2009) 3 SCC
475, the Apex Court held that recovery of excess payment from a retired
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government servant cannot be made if there is no mis-representation or fault
on the part of the employee.
In view of the aforesaid, the petition is allowed. The impugned order
of recovery dated 8.2.2021 is hereby quashed. The respondents are directed
to refund the recovered amount from the petitioner along with 6% interest
from the date of recovery till the date of payment. Let the aforesaid exercise
be done within a period of three months from the date of communication of
the order passed today.
(VIJAY KUMAR SHUKLA)
JUDGE
VM
