Madhya Pradesh High Court
Smt. Usha Kiran Mahajan (Gupta) vs The State Of Madhya Pradesh on 6 May, 2025
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
NEUTRAL CITATION NO. 2025:MPHC-IND:11967
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 6 th OF MAY, 2025
WRIT PETITION No. 15407 of 2024
SMT. USHA KIRAN MAHAJAN (GUPTA)
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Shashank Patwari, learned counsel for the petitioner.
Shri Bhuwan Deshmukh, learned counsel for the respondent/state.
ORDER
The petitioner has preferred this petition against the impugned
refixation of pay and recovery order dated 22-04-2024 issued by the
Respondent no.4, by which, after lapse of more than 15 years, after
retirement, refixed pay of the petitioner and recovery of Rs. 533652/-
[Principal amount of Rs. 3,98,549/- and penal 12 % compound interest of
Rs. 1,35,103/-] has been ordered to be recovered from the retiral benefits,
whereas, as per law as laid down by this Court, the petitioner has become
entitled for the benefit of Kramonnati on completion of 12 years service as
well as on completion of 24/30 years service, but without considering this
important facts, the respondents forcing the petitioner to deposit therecovery
amount else all retiral benefits will the withheld.
Learned counsel for the respondent submits that the petitioner was not
entitled for the salary of the promotional post as he had refused to join at the
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promotional post and it is argued that the petitioner had given an undertaking
on 03.07.2009 and 19.08.2017 and the recovery is being made on the basis of
the aforesaid undertaking.
Learned counsel for the petitioner submits that the petitioner is a
retired class III employee and the recovery on account of erroneous pay
fixation cannot be made in the light of the judgment passed by the Apex
C o u r t State of Punjab Vs. Rafiq Masih (2015) 4 SCC 334 and other
judgments. It is further submitted that there is no fraud or misrepresentation
on behalf of the petitioner.
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 & Anr. vs.
Jagdish Prasad Dubey & Anr.) 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
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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."
In view of the aforesaid, answer of the full Bench the recovery on the
basis of an undertaking/indemnity bond the recovery cannot be made on the
earlier fixation of pay. Apart from that the recovery of the excess amount
paid as salary cannot be recovered from a retired Government servant.
Admittedly in the present case procedure for recovery prescribed under Rule
65 and 66 of Chapter VIII of M.P. Civil Services Pension Rules, 1976 are
not followed.
Counsel for the petitioner submits that the the recovery from the
petitioner cannot be made as there is no misrepresentation or fraud
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committed by the petitioner in fixation of pay. He has relied on the judgment
passed by the Apex Court in the case of Shyam Babu Verma Vs. Union of
india, 1994(2) SCC 521, Sahib Ram Vs. State of Haryana , 1995 Supp (1)
SCC 18, Chandi Prasad Uniyal Vs. State of Uttarakhand, (2012) 8 SCC 417
and Syed Abdul Kadir Vs. State of Bihar, (2009) 3 SCC 475 and Yogeshwar
Prasad Vs. National Institute of Education Planning, (2010) 14 SCC 323.
In view of the above, the impugned recovery order is hereby quashed.
The pay fixation of the petitioner is however maintained. If the retiral dues of
the petitioner is held up because of the recovery order, the same shall be
decided in accordance with law and be paid to the petitioner.
The petition is accordingly allowed and disposed off.
(VIJAY KUMAR SHUKLA)
JUDGE
Sourabh
