Madhya Pradesh High Court
Brajendra Kumar Sharma vs School Education Department on 21 March, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 21st OF MARCH, 2025
WRIT PETITION No. 4577 of 2016
BRAJENDRA KUMAR SHARMA
Versus
SCHOOL EDUCATION DEPARTMENT AND OTHERS
Appearance:
Shri Shrey Chandak on behalf of Shri Karpe Prakhar Mohan, learned
counsel for the petitioner.
Shri (Dr.) Amit Bhatia, learned Government Advocate for the
respondents / State.
ORDER
The petitioner has filed the present petition under Article 226 of the
Constitution of India being aggrieved by the order dated 31.12.2023,
whereby an amount of Rs.71,955/- is directed to be recovered due to wrong
fixation.
02. The facts of the case are that the petitioner retired from service
on 31.10.2013 after rendering 42 years of service. While preparing the PPO,
the authority found that the petitioner was wrongly given the pay-scale, due
to which excess salary was paid to him, hence, calculated the amount which
comes to Rs.71,955/- and Rs.550/-, which the respondents recovered from
the retiral dues of the petitioner.
03. According to the petitioner, there is no mistake in the pay
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fixation in view of the Circular issued by the State Government from time to
time. The petitioner submitted a detailed representation (Annexure-P/6).
04. So far as the issue of recovery after retirement is concerned, the
same is no more res integra in view of the judgment delivered by the Apex
Court in the case of State of Punjab & Others v/s Rafiq Masih (White
Washer) reported in (2015) 4 SCC 334 as well as judgment delivered by the
Full Bench of this Court in the case of The State of Madhya Pradesh &
Others v/s Jagdish Prasad Singh (Writ Appeal No.815 of 2017).
05. The Apex Court in the case of Rafiq Masih (supra) has held
thus:-
Recovery from employees belonging to Class-III and Class-
''( i )
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.''
06. The Full Bench of this Court in the case of Jagdish Prasad Singh
(supra) has held 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
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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 view of the aforesaid judicial pronouncement by the Apex
Court as well as Full Bench of this Court, the impugned order of recovery
dated 31.12.2013 (Annexures-P/4 & P/5) is not sustainable and hereby
quashed. The amount, if any, recovered from the petitioner be paid to him
within a period of 60 days from the date of this order.
08. With the aforesaid, Writ Petition stands allowed.
(VIVEK RUSIA)
JUDGE
Ravi
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