Madhya Pradesh High Court
Rajendra Mittal vs The State Of Madhya Pradesh Department ... on 21 March, 2025
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1 WP-17454-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
WP No. 17454 of 2022
(RAJENDRA MITTAL Vs THE STATE OF MADHYA PRADESH DEPARTMENT OF HEALTH AND OTHERS )
Dated : 21-03-2025
Padmnabh SaXEna - advocate for the petitioner.
Kushal Goyal appearing on behalf of Advocate General.
1] The petitioner is challenging the recovery of excess amount of
Rs.8,31,369/ paid to him on account of wrong fixation of pay. It is argued
that the aforesaid recovery of excess payment is contrary to the law. The
petitioner is retired from the post of In charge Principal, District Institution
of Education and Training Institute AB Road, Dewas., which is Class-II post.
The recovery of excess amount on account of wrong fixation of pay is illegal
and contrary to the law laid down 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 there is no misrepresentation or fault of the petitioner in fixation
of pay.
2] 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).
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 3/21/2025
3:55:07 PM
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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."
3] 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
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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. ' '
4] 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."
5] 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 mis-representation or fault
on the part of the employee.
6] In view of the aforesaid, the petition is partly allowed and the impugned
recovery order dated 13.02.2025 is hereby quashed. The respondents are
directed to refund the recovered amount, if already recovered 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.
7] The petition is partly allowed and disposed of.
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(SUBODH ABHYANKAR)
JUDGE
das
