Madhya Pradesh High Court
Smt. Rukhmani Chouhan vs Public Health And Family Welfare ... on 25 March, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:7906
1 WP-22391-2017
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 25 th OF MARCH, 2025
WRIT PETITION No. 22391 of 2017
SMT. RUKHMANI CHOUHAN
Versus
PUBLIC HEALTH AND FAMILY WELFARE DEPARTMENT AND OTHERS
Appearance:
Shri Ranjeet Sen, learned counsel for the petitioner.
Shri Anand Bhatt, 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 22.09.2017, whereby an
amount of Rs.1,01,160/- is directed to be recovered from him due to erroneous
pay fixation.
02. Facts of the case are that the petitioner was appointed on the post of
Auxiliary Nurse Midwife (ANM) vide order dated 30.12.1987. While granting the
benefit of Second Kramonnati to the petitioner excess amount of paid to the
petitioner, hence, vider order dated 22.09.2017, recovery has been ordered. Hence,
the present petition is before this Court.
03. The respondents have filed a reply by submitting on the
recommendation of Brahmaswaroop Samiti, the petitioner was to be fixed in the
pay-scale of Rs.5200 - 20200 + GP 2100 w.e.f. 01.04.2006, whereas he was fixed
in pay-scale of Rs.5200 - 20200 + GP 2400. The amount more than the
entitlement has been paid to the petitioner, hence, the order of recovery is
NEUTRAL CITATION NO. 2025:MPHC-IND:7906
2 WP-22391-2017
justified.
04. So far as the issue of recovery from Class - III & Class - IV employee
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:-
''(i) Recovery from employees belonging to Class-III and Class- 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.''
[Emphasis Supplied]
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 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
NEUTRAL CITATION NO. 2025:MPHC-IND:7906
3 WP-22391-2017
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."
[Emphasis Supplied]
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
22.09.2017 is unsustainable and is 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
