Madhya Pradesh High Court
Smt. Bhagwati Jatav vs Department Of Higher Education on 21 March, 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 MARCH, 2025
WRIT PETITION No. 3189 of 2020
SMT. BHAGWATI JATAV
Versus
DEPARTMENT OF HIGHER EDUCATION AND OTHERS
Appearance:
Shri Manuraj Singh, counsel for the petitioner.
Shri Vishal Panwar, P.L. for State.
ORDER
By the present petition under Article 226 of the Constitution of India,
petitioner has challenged the recovery to the tune of Rs.5,74,699/- after the
retirement which is sought to be made on account of excess payment in the
basic salary of the petitioner's husband at the time of pay fixation.
02. Counsel for the petitioner submits that petitioner's husband who
was an employee of the respondent-Department has already died. After his
retirement and death, recovery is being made. It is further argued that the
petitioner had not made any misrepresentation or cheating with the
department, therefore, the aforesaid recovery is contrary to the judgments.
03. Per contra, learned counsel for the State supported the action of
respondents and submitted that since the amount was paid in excess,
therefore recovery is being made. However, he does not dispute that the issue
involved in the present case is squarely covered by the said judgment.
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04. 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.
05. 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
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
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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."
06. 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
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)
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07. 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 pay scale granted to the petitioner. The same relates to
fixation of 7th pay scale.
08. In view of the above, the petition is allowed. The amount, if any,
recovered from the husband of the petitioner be refunded along with interest
@ 6% per annum from the date of recovery till date of payment. Let the
same be done within a period of three months from the date of receipt of
certified copy of this order.
With the aforesaid, present petition is allowed and disposed of.
(VIJAY KUMAR SHUKLA)
JUDGE
MK
