Madhya Pradesh High Court
Prakashchandra Bhawsar vs Medical Education Department on 6 January, 2025
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
NEUTRAL CITATION NO. 2025:MPHC-IND:151
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 6 th OF JANUARY, 2025
WRIT PETITION No. 2870 of 2020
PRAKASHCHANDRA BHAWSAR
Versus
MEDICAL EDUCATION DEPARTMENT AND OTHERS
Appearance:
Shri Amit Raj - Advocate for the petitioner.
Ms. Pranjali Yajurvedi - P.L for the respondent/State.
ORDER
The petitioner has challenged the order dated 30/9/2019 by which the
recovery of Rs.2,30,486/- has been issued against the petitioner on account
of excess payment made in salary due to wrong fixation of pay from
1/7/2006. The petitioner is also challenging the interest calculation sheet
prepared by which the respondents have charged total amount of
Rs.3,86,512/- out of which Rs.2,30,087/- is principal amount and
Rs.1,56,025/- is interest amount.
02. Counsel for petitioner submits that the aforesaid recovery is illegal
and contrary to the law laid down by the Apex Court in number of cases. The
aforesaid recovery has been ordered on the ground of wrong fixation of pay.
The said payscale was granted to the petitioner by the respondents and there
was no misrepresentation or any cheating or fraud played by the petitioner in
fixation of the pay.
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03. Per contra, learned counsel for the State supports the impugned
order and submits that the petitioner was wrongly granted higher payscale for
which he was not entitled and, therefore, the recovery has been ordered. It is
further argued that the petitioner has submitted an undertaking, Annexure R-
1. There is no illegality in the impugned order of recovery.
04. Counsel for the petitioner submits that the petitioner is a
government employee and the said recovery cannot be made in the light of
the judgment passed by the Apex Court in the case of State of Punjab V/s.
Rafique Masih (White Washer), (2015) 4 SCC 334 . He further submits that it
is not the case of the respondent that the petitioner has made any
misrepresentation or cheating with the department.
05. After hearing learned counsel for the parties and considering the
fact that it is not the case of the respondents that there was any
misrepresentation of fact or any fraud or cheating played by the petitioner
with the department.
06. 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
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
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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 Ganguly and Another, reported in
(1986) 3 SCC 136 unless the undertaking is
given voluntarily."
07. 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
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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
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.''
(emphasis
supplied)
08. 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
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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."
09. 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
government servant cannot be made if there is no misrepresentation or fault
on the part of the employee. The undertaking filed by the respondent is not
in respect of the payscale granted to the petitioner. The same relates to
fixation of 7th payscale.
10. In view of the aforesaid, the impugned orders of recovery of
principle amount as well as interest amount i.e Annexure P-1 and Annexure
P-8 are quashed. The amount, if any, already recovered shall be refunded to
the petitioner along with 6% interest from the date of recovery till it is paid.
Let the aforesaid exercise be done within a period of two months from the
date of communication of the order passed today.
11. With the aforesaid, the petition is allowed and disposed off.
(VIJAY KUMAR SHUKLA)
JUDGE
PK
