Madhya Pradesh High Court
The State Of Madhya Pradesh vs Smt. Bhanumati Naagar on 2 May, 2025
..1..
NEUTRAL CITATION NO. 2025:MPHC-JBP:20355
2025:MPHC
W.A.No.1213 of 2020
IN THE HIGH COURT OF MADHYA PRADESH
AT JAB A L PU R
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT APPEAL No.1213 of 2020
STATE OF MADHYA PRADESH AND OTHERS
Versus
SMT. BHANUMATI NAAGAR
Appearance:
Shri Bramhadatt Singh -Deputy Advocate General for the appellants/State
s/State.
Shri Manoj Kumar Chansauriya - Advocate for respondent/writ-petitioner
petitioner.
Reserved on - 02.04.2025
Pronounced on - 02.05.2025
ORDER
Per: Justice Suresh Kumar Kait, Chief Justice:
1. This appeal has been filed by the State being
being aggrieved by the
order dated 30.07.2019 passed by the learned Single Judge in Writ
Petition No.21073/2016 preferred by the respondent herein, whereby the
learned Single Judge allowed the writ petition directing the appellants
that if any amount has been recovered from the petitioner in pursuance to
the objection raised by the Office of the Treasury and Accoun
Accounts, the said
..2..
NEUTRAL CITATION NO. 2025:MPHC-JBP:20355
2025:MPHC
amount shall be refunded to the petitioner with an interest at the rate of
6% per annum from the date of recovery till the date of its payment.
2. Learned counsel appearing for appellants/State while opposing the
impugned order contended that the learned Single Judge has wrongly set
aside the objection raised by the Office of Treasury, Accounts and
Pension that the petitioner wass not entitled for benefit of increment as
per Fundamental Rule 22
22-D and 22(a)(ii).
3. On perusal of record, it reveals that the
he case of the petitioner, in
brief, is that the
he petitioner was appointed as Assistant Teacher vide order
15.09.1976 (Annexure
(Annexure-P/2) and retired after attaining the age of
superannuation w.e.f. 30.06.2016 (Annexure-P/1). While in service, in
i
the year 1997, the case of the petitioner was considered by the DPC for
promotion to the next higher post which found her fit and recommended
her name for promotion to the post of Upper Division Teacher (UDT) in
the pay-scale
scale of Rs.140
Rs.1400-2640/-.. The order of promotion was issued on
19.11.1997 (Annexure P/3)
P/3). Although, the petitioner was already granted
pay-scale
scale of Rs.1400
Rs.1400-2640/- w.e.f. 11.10.1989 as per the scheme of
Kramonnati Vetanman. Since both the pay-scales
scales were same therefore,
the petitioner was granted benefit as per the provision of FR 22-D.
However, as per Annexure
Annexure-P/4,
P/4, the petitioner was granted benefit under
FR 22(a)(ii) and fixation was accordingly made. The petitioner got
retired w.e.f. 30.06.2016 and before her retirement when her service
book was sent to the Office of Treasury
Treasury, Accounts and Pension for
calculating and approving the retiral dues then on 13.06.2016 an
objection was raised by the Office of Treasury, Accounts
ccounts and Pension
that the benefit granted to the petitioner on promotion to the post of
..3..
NEUTRAL CITATION NO. 2025:MPHC-JBP:20355
2025:MPHC
Upper Division Teacher was wrong and the same was not available to
her and accordingly, re
re-fixation was ordered and excess amount paid to
the petitioner was also instructed to be recovered. Thereafter, the Office
of District Education Officer, Chhatarpur passed an order dated
28.06.2016 making re-fixation and directed for recovery of excess
amount paid to the petitioner. As stated by the petitioner, the appellants
appellant
No.4 and 5 in their turn on the basis of the said objection made recovery
of an amount of Rs.1,40,580/-
Rs.1,40,580/ from the retiral dues of the petitioner.
petitioner
Being aggrieved by the same,
same the petitioner filed the writ petition.
4. Learned
earned counsel for the writ petitioner argued that in view of the
circulars issued by the State Government from time to time, the
objection as raised by the Office of Treasury,
Treasury Accounts and Pension was
absolutely illegal and contrary to the said circulars/policy
/policy as rightly
observed byy the learned Single Judge. In the alternate,, learned counsel
for the petitioner argued that even otherwise the recovery cannot be
effected against her from her retiral dues after a period of about 19 years.
Supporting the order of the learned Single Judge, learned counsel for
petitioner contended that the appeal preferred by the State against the
said order is liable to be dismissed.
5. The appellants
appellants/State filed their reply before the writ Court stating
that petitioner was granted the benefit of FR 22(a)(ii) but the
Fundamental Rules are silent as to the fixation of pay in cases where the
government servant receives promotion on a post involving higher duties
but the pay-scale
scale of the said higher/promoted post is the same as the
government servant was receiving immediately before his promotion by
..4..
NEUTRAL CITATION NO. 2025:MPHC-JBP:20355
2025:MPHC
virtue of Kramonnati.
ati. It is submitted that a notification was issued by the
State Government on 25.05.1998 (Annexure-R/3) clarifying that in a
situation as existing in the present case, fixation was to be made as per
FR 22-D
D and FR 22
22-(a)(ii)
(a)(ii) and whichever is beneficial for the employee,
the same be granted to him. Further stated by the appellants that the case
of the petitioner falls between FR 22
22-D and FR 22(a)(ii)
2(a)(ii) and as such,
governed with the circulars dated 25.05.1998, 22.01.2007 and
17.04.2017 which were filed as Annexures- R/3, R/4 and R/5
respectively. It is stated that the law laid down by the Supreme Court in
the case of State of Punjab &Ors. Vs. Rafiq Masih (White Washer) &
Ors. reported in (2015)
2015) 4 SCC 334 is not applicable in the present case
but the case of the petitioner will be governed by the law laid down by
the Supreme Court in the case of High Court of Punjab and Haryana
Vs.Jagdev Singh reported in (2016) 14 SCC 367.
6. Learned counsel for the State to fortify their contentions relies on
the judgment of the Supreme Court in the case of Union of India Vs.
Ashok Kumar Banerjee reported in (1998) 5 SCC 242.. He referred to
para 8, which is as under:-
under:
"8. In our view, the respondent having received the same benefit
in advance, while working as Junior Engineer and while not
actually functioning as an Assistant Engineer, is not entitled to
the same benefit of fresh fitment in the scale of Rs 20 2000
00-3500
when he is promoted on 1-8-1991
1 1991 as Assistant Engineer. This is
because as on 11-8-1991,
1991, he is not being fitted into the "time scale
of the higher post" as stated in the FR. That situation was
already over when the OM was applied to him on his complecompletion
of 15 years. For the applicability of the FR 22(1)(a)(i) it is not
merely sufficient that the officer gets a promotion from one post
to another involving higher duties and responsibilities but
another condition must also be satisfied, namely, that he must be
..5..
NEUTRAL CITATION NO. 2025:MPHC-JBP:20355
2025:MPHC
moving from a lower scale attached to the lower post to a higher
scale attached to a higher post. If, as in this case, the benefit of
the higher scale has already been given to him by virtue of the
OM there is no possibility of applying this part of
of the FR which
says;
"his initial pay in the time scale of higher post shall be fixed at
the stage next above the notional pay arrived at by increasing his
pay in respect of the lower post held by him regularly by an
increment at the stage at which such pay has accrued or rupees
twenty-five
five only, whichever is more".
7. On perusal of the impugned order, it reveals that the learned Single
Judge considered the question as to whether the said benefit which was
granted to the petitioner at the time of her promotion to the post of Upper
Division Teacher was proper or not. The learned Single Judge observed
that ass per the stand taken by the State,, the petitioner was granted the
benefit as per FR 22(a)(ii).
22 However, admitted the fact that there were no
provisions under the Fundamental Rules to deal with the situation as
existed inn the present case that if an employee is already granted a senior
pay-scale/Kramonnati
nati Vetanman and he has been granted promotion on
the same pay-scale
scale which he has already been getting by virtue of senior
pay-scale/Krammonati
scale/Krammonati Vetanman then as to in what manner fixation
would be done. It is also stated by the appellants that the State
Government clarified this position and instructions were issued to all the
District Education Officers on 22.01.2007 (Annexure-R/4).
R/4). As per the
said instructions, it is clear that taking note
ote of such an eventuality, it was
wa
instructed that if such a situation arises then pay fixation be made in
accordance with FR 22
22-D
D and FR 22(a)(ii) and whichever is beneficial
for the employees, the same should be granted to them. In view of above,
the learned Single Judge opined that now there is no dispute as the
..6..
NEUTRAL CITATION NO. 2025:MPHC-JBP:20355
2025:MPHC
Government has come up with such beneficial clarification that the
employee should be given the benefit of the same and admittedly, the
petitioner's pay-scale
scale was revised as per FR 22(a)(ii). The learned Single
Judge on consideration
ation of the above, was of the view that the objection
raised by the Office of Treasury
Treasury, Accounts and Pension at the time of
retirement of the petitioner was without taking note of the clarification
issued by the State Government on 22.01.2007 (Annexure--R/4) and set
aside the said objection being illegal.
illegal
8. We may note that in the case in hand
hand, the petitioner was granted
Kramonnati Vetanman w.e.f. 11.10.1989 as per the scheme of
Krammonati Vetanman. The order of promotion was issued on
19.11.1997 (Annexure P/3) after the recommendation made by the
Departmental Promotion Committee and the benefit of increment was
granted to the petitioner under FR 22(a)(ii). It is well settled that the
Kramonnati and Fundamental Rules are different and distinct concepts
within the context of government employment.
employment Kramonnati refers to a
time-bound promotion scheme, granting financial upgrades to employees
who have not received a regular promotion for a specific period, whereas
Fundamental Rules are general rules that govern the terms and conditions
of service, including pay, leave, pension, and othe
otherr aspects of
employment. The Supreme Court in the case of B. Thirumal v. Ananda
Sivakumar reported in (2014) 16 SCC 593 considering the issue in
question made following observations, which are reproduced as under:
under:-
"23. This Court in Velusamy [BSNL v. R. Santhakumari
Velusamy, (2011) 9 SCC 510 : (2011) 2 SCC (L&S) 496 : AIR
2011 SC 3793] upon a comprehensive review of the decisions
..7..
NEUTRAL CITATION NO. 2025:MPHC-JBP:20355
2025:MPHC
rendered earlier including those rendered in Union of
India v. S.S. Ranade [Union of India v. S.S. Ranade, (1995) 4
SCC 462 : 1995 SCC (L&S) 1033 : (1995) 30 ATC 559], Union
of India v. V.K. Sirothia [Union of India v. V.K. Sirothia, (2008) 9
SCC 283 : 1999 SCC (L&S) 938] and Lalit Mohan Deb v. Union
of India [Lalit Mohan Deb v. Union of India, (1973) 3 SCC 862 :
1973 SCC (L&S) 272] formulated specific principles relating to
promotion and upgradation in the following words : (Velusamy
case [BSNL v. R. Santhakumari Velusamy, (2011) 9 SCC 510:
(2011) 2 SCC (L&S) 496 : AIR 2011 SC 3793] , SCC pp. 5524-26,
para 29)
"29. On a careful analysis of the principles relating to
promotion and upgradation in the light of the aforesaid
decisions, the following principles emerge:
(i) Promotion is an advancement in rank or grade or both
and is a step towards advancement to a higher position,
grade or honour and dignity. Though in the traditional sense
promotion refers to advancement to a higher post, in its
wider sense, promotion may include an advancement to a
higher pay scale without moving to a different po
post.
st. But the
mere fact that both,
both that is, advancement to a higher position
and advancement to a higher pay scale are described by the
common term 'promotion', does not mean that they are the
same. The two types of promotion are distinct and have
different connotations and consequences.
(ii) Upgradation merely confers a financial benefit by raising
the scale of pay of the post without there being movement
from a lower position to a higher position. In an upgradation,
the candidate continues to hold the same post without any
change in the duties and responsibilities but merely gets a
higher pay scale.
(iii) Therefore, when there is an advancement to a higher pay
scale without change of post, it may be referred to as
upgradation or promotion to a higher pay sscale.
cale. But there is
still difference between the two. Where the advancement to a
higher pay scale without change of post is available to
everyone who satisfies the eligibility conditions, without
undergoing any process of selection, it will be upgradation.
..8..
NEUTRAL CITATION NO. 2025:MPHC-JBP:20355
2025:MPHC
But if the advancement to a higher pay scale without change
of post is as a result of some process which has elements of
selection, then it will be a promotion to a higher pay scale. In
other words, upgradation by application of a process of
selection, as contrasted from an upgradation simpliciter can
be said to be a promotion in its wider sense, that is,
advancement to a higher pay scale.
(iv) Generally, upgradation relates to and applies to all
positions in a category, who have completed a minimum
period of service. Upgradation can also be restricted to a
percentage of posts in a cadre with reference to seniority
(instead of being made available to all employees in the
category) and it will still be an upgradation simpliciter. But if
there is a process of selection or consideration of
comparative merit or suitability for granting the upgradation
or benefit of advancement to a higher pay scale, it will be a
promotion. A mere screening to eliminate such employees
whose service records may contain adverse entries
entries or who
might have suffered punishment, may not amount to a process
of selection leading to promotion and the elimination may
still be a part of the process of upgradation simpliciter.
Where the upgradation involves a process of selection
criteria similar
similar to those applicable to promotion, then it will,
in effect, be a promotion, though termed as upgradation.
(v) Where the process is an upgradation simpliciter, there is
no need to apply the rules of reservation. But where the
upgradation involves a selection process and is therefore a
promotion, rules of reservation will apply.
(vi) Where there is a restructuring of some cadres resulting in
creation of additional posts and filling of those vacancies by
those who satisfy the conditions of eligibility which includes a
minimum period of service, will attract the rules of
reservation. On the other hand, where the restructuring of
posts does not involve creation of additional posts but merely
results in some of the existing posts being placed in a higher
grade to provide relief against stagnation, the said process
does not invite reservation.
..9..
NEUTRAL CITATION NO. 2025:MPHC-JBP:20355
2025:MPHC
24. On a careful reading of Principles (ii) and (iii) above
in Velusamy [BSNL v. R. Santhakumari Velusamy, (2011) 9 SCC
510 : (2011) 2 SCC (L&S) 496 : AIR 2011 SC 3793], it is evident
that upgradation which is synonymous to redesignation in the
facts of this case simply confers a financial benefit by raising the
scale of pay of the posts without there being movement from a
lower position to a higher position. In the case of upgradation,
the candidate continues to hold the same post without any change
in the duties and responsibilities but merely gets a higher pay
scale. Not only that, where the advancement to a higher pay scale
without change of post is available to everyone who satisfies the
eligibility conditions, without undergoing any process of
selection, it will be upgradation. But if advancement to a higher
pay scale without change of post is accompanied by some process
which has the element of selection, then it will be a promotion to
a higher pay scale. This Court declared that upgradation in that
case was not promotion, also because the BCR Scheme did not
involve creation of additional posts nor did the Scheme involve
consideration of inter se merit of the candidates
candidates or involve any
selection process. The Court on that basis declared that BCR
Scheme was only an upgradation intended to give relief against
stagnation which was not tantamount to promotion. To such
process of upgradation, the Reservation Rules had no
application, declared this Court.
Court."
9. On considering the overall facts and circumstances of the case and
analysis of the aforesaid judgment of the Supreme Court, as the
petitioner was promoted after holding of the DPC, which recommended
the petitioner to be fit for promotion to a higher post of UDT, we are of
the considered view that there is no illegality or perversity in the order of
the learned Single Judge in setting aside the objection raised by the office
of the Treasury, Accounts and Pension that the benefit of increment was
wrongly granted to the petitioner at the time of promotion to the post of
Upper Division Teacher.
..10..
NEUTRAL CITATION NO. 2025:MPHC-JBP:20355
2025:MPHC
10. So far as the issue of recovery from the petitioner is concerned, in
i
a catena of decisions, the Supreme Court has granted relief against
recovery of excess payment of emoluments/allowances if the excess
amount was not paid on account of any misrepresentation or fraud on the
part of the employee, and if such excess payment was made by the
employer by applying a wrong principle for calculating the
pay/allowance or on the basis of a particular interpretation of rule/order,
which is subsequently found to be erroneous. In this respect, we may
refer to the judgment of the Supr
Supreme Court in the case Syed Abdul Qadir
v. State of Bihar, reported in (2009) 3 SCC 475.
475. The relevant paras of
the said judgment are reproduced as under
"57. This Court, in a catena of decisions, has granted relief
against recovery of excess payment of emoluments/allowances if
(a) the excess amount was not paid on on account of any
misrepresentation or fraud on the part of the employee, and (b)
if such excess payment was made by the employer by applying a
wrong principle for calculating the pay/allowance or on the
basis of a particular interpretation of rule/order, which
w is
subsequently found to be erroneous.
58. The relief against recovery is granted by courts not because
of any right in the employees, but in equity, exercising judicial
discretion to relieve the employees from the hardship that will
be caused if recovery is ordered. But, if in a given case, it is
proved that the employee had knowledge that the payment
received was in excess of what was due or wrongly paid, or in
cases where the error is detected or corrected within a short
time of wrong payment, the matter being in the realm of judicial
discretion,, courts may, on the facts and circumstances of any
particular case, order for recovery of the amount paid in excess.
See Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 :
1995 SCC (L&S) 248] , Shyam Babu Verma v. Union of
India [(1994) 2 SCC 521 : 199 1994
4 SCC (L&S) 683 : (1994) 27
ATC 121], Union of India v. M. Bhaskar [(1996) 4 SCC
416:1996SCC (L&S) 967] , V. Gangaram v. Director [(1997) 6
SCC 139 : 1997 SCC (L&S) 1652] , Col. B.J. Akkara
..11..
NEUTRAL CITATION NO. 2025:MPHC-JBP:20355
2025:MPHC
(Retd.) v. Govt. of India [(2006) 11 SCC 709 : (2007) 1 SCC
(L&S) 529] , Purshottam Lal Das v. State of Bihar [(2006) 11
SCC 492 : (2007) 1 SCC (L&S) 508] , Punjab National
Bank v. Manjeet Singh [(2006) 8 SCC 647 : (2007) 1 SCC
(L&S) 16] and Bihar SEB v. Bijay Bhadur [(2000) 10 SCC 99 :
2000 SCC (L&S) 394]
.
59. Undoubtedly,
edly, the excess amount that has been paid to the
appellant teachers was not because of any misrepresentation or
fraud on their part and the appellants also had no knowledge
that the amount that was being paid to them was more than what
they were entitled to. It would not be out of place to mention
here that the Finance Department had, in its counter-affidavit,
counter affidavit,
admitted that it was a bona fide mistake on their part. The
excess payment made was the result of wrong interpretation of
the Rule that was applicable
applicable to them, for which the appellants
cannot be held responsible. Rather, the whole confusion was
because of inaction, negligence and carelessness of the officials
concerned of the Government of Bihar. Learned counsel
appearing on behalf of the appellant teachers
teachers submitted that
majority of the beneficiaries have either retired or are on the
verge of it. Keeping in view the peculiar facts and circumstances
of the case at hand and to avoid any hardship to the appellant
teachers, we are of the view that no recovery
recovery of the amount that
has been paid in excess to the appellant teachers should be
made.
60. Learned counsel also submitted that prior to the interim
order passed by this Court on 7-4-2003
7 2003 in the special leave
petitions, whereby the order of recovery pas
passed
sed by the Division
Bench of the High Court was stayed, some instalments/amount
had already been recovered from some of the teachers. Since we
have directed that no recovery of the excess amount be made
from the appellant teachers and in order to maintain parity, it
would be in the fitness of things that the amount that has been
recovered from the teachers should be refunded to them."
11. In another decision rendered in the case of State of Punjab v.
Rafiq Masih reported in (2015) 4 SCC 334, the Supreme Court
discussed the issue relating to recovery from the government employees.
The relevant paras are reproduced, which are as follows:-
..12..
NEUTRAL CITATION NO. 2025:MPHC-JBP:20355
2025:MPHC
"7. Having examined a number of judgments rendered by this
Court, we are of the view, that orders passed by the employer
seeking recovery of monetary benefits wrongly extended to the
employees, can only be interfered with, in cases where such
recovery would result in a hardship of a nature, which would far
outweigh, the equitable balance of the employer's right to
recover. In other words, interference would be called for, only
in such cases where, it would be iniquitous to recover the
payment made. In order to ascertain the parameters of the
above consideration, and the test to be applied, reference needs
to be made to situations
situations when this Court exempted employees
from such recovery, even in exercise of its jurisdiction under
Article 142 of the Constitution of India. Repeated exercise of
such power, "for doing complete justice in any cause" would
establish that the recovery being
being effected was iniquitous, and
therefore, arbitrary. And accordingly, the interference at the
hands of this Court.
*** *** ***
10. In view of the aforestated constitutional mandate, equity
and good conscience in the matter of livelihood of the people of
this country has to be the basis of all governmental actions. An
action of the State, ordering a recovery from an employee,
would be in order, so long as it is not rendered iniquitous to the
extent that the action of recovery would be more unfair
unfair, more
wrongful, more improper, and more unwarranted, than the
corresponding right of the employer, to recover the amount. Or
in other words, till such time as the recovery would have a
harsh and arbitrary effect on the employee, it would be
permissible in law. Orders passed in given situations repeatedly,
even in exercise of the power vested in this Court under Article
142 of the Constitution of India, will disclose the parameters of
the realm of an action of recovery (of an excess amount paid to
an employee)
ee) which would breach the obligations of the State,
to citizens of this country, and render the action arbitrary, and
therefore, violative of the mandate contained in Article 14 of the
Constitution of India."
India.
12. It would be apposite to note that in
i the aforesaid judgment itself,
the Supreme Court has summarized the following few situations,
wherein recoveries by the employers, would be impermissible in law:
law:-
..13..
NEUTRAL CITATION NO. 2025:MPHC-JBP:20355
2025:MPHC
"18. It is not possible to postulate all situations of hardship
which would govern employees on the issue of recovery, where
payments have mistakenly been made by the employer, in excess
of their entitlement. Be that as it may, based on the decisions
referred to hereinabove, we may, as a ready reference,
summarise the following few situations, wherein
wherein recoveries by
the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and
Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees
who are due to retire w
within
ithin one year, of the order of recovery.
(iii) Recovery from the 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."
13. On coming to a conclusion, in
i the case in hand, itt is borne out
from the record that in view of FR-22(a)(ii) petitioner was granted
benefit of increment on her promotion to the post of Upper Division
Teacher in the year 1997 on recommendation of the DPC and after a
period of about 19 years, when the petitioner was to retire on 30.6.2016,
the authority passed an order dated 28.06.2016 directing
ing for making
recovery of excess amount from the retiral dues of the petitioner on the
..14..
NEUTRAL CITATION NO. 2025:MPHC-JBP:20355
2025:MPHC
ground that the petitioner was not entitled for the benefit of increment
when she was promoted to the post UDT in the year 1997,
1997 for which
there was no misrepresentation or fraud on the part of the petitioner.
Hence, we are of the considered view that said action of the appellants is
impermissible owing to the aforesaid judgments of the Supreme Court.
14. Considering
onsidering the fact that the recovery of excess payment against
the petitioner was being effected after a period of about 19 years for the
re-payfixation which was done in the year 1997 and on analysis of the
pronouncement of the Supreme Court as rendered in the cases of Rafiq
Masih and Syed Abdul Qadir (supra), we do not find any illegality or
perversity in the order passed by the learned Single Judge that calls for
any interference. Consequently, the appeal filed by the State being bereft
of merit is dismissed.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIEF JUSTICE JUDGE
C.
