Madhya Pradesh High Court
Santosh Soni Deceased Through Lrs. Smt. ... vs Revenue Department on 23 January, 2025
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
NEUTRAL CITATION NO. 2025:MPHC-IND:1713
1 WP-19338-2020
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 23rd OF JANUARY, 2025
WRIT PETITION No. 19338 of 2020
SANTOSH SONI DECEASED THROUGH LRS. SMT. BABI SONI AND
OTHERS
Versus
REVENUE DEPARTMENT AND OTHERS
Appearance:
Shri Manish Kumar Sankhala - advocate for the petitioner.
Ms. Pranjali Yajurvedi - Panel Lawyer for the State.
ORDER
The present petition is filed under Article 226 of the Constitution of
India challenging the impugned order dated 15.06.2020 passed by the
respondent no.3 by which a recovery of sum of Rs.1,39,966/-with interest
has been made from the retiral due of the petitioner.
2 . Counsel for the petitioner submits that petitioner is a retired
government servant and the recovery of the aforesaid amount is being made
on the ground of excess payment paid to the petitioner on account of revised
7 th Pay fixation. It is argued that that there is no fault or misrepresentation on
the part of the petitioner therefore, respondent cannot make recovery from a
retired government service.
3. Counsel for the State supported the order of recovery and submitted
that the petitioner was granted the benefit of higher pay scale wrongly. The
petitioner was promoted to the post of Assistant Superintendent and after
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promotion he was not entitled for the said higher pay scale and the benefit
under FR-22 D was erroneously granted to him therefore, the respondents
have passed the order of recovery/deduction from the pension.
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 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
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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."
5 . In view of the aforesaid answer of the full Bench, the recovery on
the basis of undertaking/indemnity bond 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.
6 . Counsel for the petitioner submits that the the recovery from the
petitioner cannot be made as there is no misrepresentation or fraud
committed by the petitioner in fixation of pay. He has relied on the 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 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.
7. In view of the above, the impugned recovery order dated
15.06.2020 is hereby quashed. The amount, if any, recovered from the
petitioner be refunded to her along with interest at the rate of 6% per annum
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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 certified copy of this order.
The pay fixation of the petitioner is however maintained.
8. The petition is accordingly allowed and disposed off.
(VIJAY KUMAR SHUKLA)
JUDGE
ajit
