Madhya Pradesh High Court
Smt. Roshanaara Khan vs The State Of Madhya Pradesh on 10 October, 2025
1 WP-31816-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 10th OF OCTOBER, 2025
WRIT PETITION No. 31816 of 2024
SMT. ROSHANAARA KHAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Devendra Kumar Shukla - Advocate for the petitioner.
Shri Avnish Khatri - Panel Lawyer for the State.
ORDER
The petitioner challenges recovery ordered after death of her husband
on account of erroneous payment made to the deceased husband of petitioner
amounting to Rs.6,03,145/-.
2. The respondents in the reply have tried to justify the recovery that
the issue of ministerial employees reached up to the Hon'ble Apex Court in
S.H. Baig vs. State of M.P. & others (Civil Appeal No.9888-99 of 2018) .
Therefore, the recovery of the amount is fully permissible as the petitioner's
husband was granted certain benefits, which have been found to be
erroneously granted and the similarly situated employees have lost up to the
Hon'ble Apex Court in the matter of substantive salary.
3. It is contended that initially various other Ministerial employees had
filed writ petitions before this court and recovery ordered from the similarly
situated employees was set aside only as to the interest part and not for the
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principal part. Thereafter in various other cases, the Coordinate Benches of
this Court have set aside the recovery from Ministerial employees of the
police for the principal part also, after considering the affect of judgment of
the Supreme Court in case of S.H. Baig and Others Vs. State of M.P. and
Others (Civil Appeal No.9888-9899 of 2018) . This was ordered in W.P.
No.19539/2020 (Umakanti Parihar Vs. State of M.P. and Others) by the
Gwalior Bench of this Court.
4. Subsequently, another Coordinate Bench of this Court in W.P.
No.2629/2021 (Tehsildar Singh Vs. State of M.P. and Others) has also
quashed the recovery of principal as well as interest part of Ministerial
employees of the police.
5 . In W.P. No.2629 of 2021, the Coordinate Bench of this Court has
passed the following order:-
"Petitioners have filed these writ petitions challenging their
respective orders of recovery, whereby certain amount has been
directed to be recovered from them towards amount paid in excess
on account of certain benefits granted to them erroneously. The
amount of recovery also includes the interest on the excess amount
paid.
2. The petitioner in W.P. No.2649/2021 (Om Prakash Singh
Sikarwar) was initially appointed as Assistant Sub Inspector (M).
In course of time, he was promoted to the post of Sub Inspector
(M), Accountant and then ultimately as Head Clerk/Subedar (M).
He retired on attaining the age of superannuation w.e.f. 31/8/2015.
Since, there was some dispute pending with regard to anomaly in
fixation of his salary, this petitioner was initially sanctioned
anticipatory pension. The respondents vide order dated 13/5/2020
(Annexure P/3) revised his pay-scale in view of judgment of Apex
Court in the case of S.H. Baig & Ors. Vs. State of M.P. & Ors.
reported in (2018)10 SCC 621 and consequently, also revised his
anticipatory pension vide order dated 14/7/2029 (Annexure P/4).
Later on, the impugned order was passed on 2/11/2020 (Annexure
P/1) whereby an amount of Rs.28,17,508/- has been directed to be
recovered from the petitioner which includes an amount of
Rs.15,64,163/- towards the excess amount paid and Rs.12,53,345/-
is directed to be recovered towards interest.
3. The petitioner in W.P. No. 2646/2021 (Keshav Singh) was
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appointed as Assistant Sub Inspector (M) on 15/10/1984 and he
retired from service w.e.f. 30/6/2016. His anticipatory pension was
also revised vide order dated 13/5/2020 (Annexure P/3) and his
pension was revised vide order dated 14/7/2020 (Annexure P/4).
The respondents vide order dated 1/9/2020 (Annexure P/1)
directed recovery of an amount of Rs.20,60,641/- out of which
Rs.11,40,066/- was to be recovered towards excess payment while
Rs.9,20,576/- was directed to be recovered towards interest.
4. Likewise, the petition in W.P. No.2629/2021 (Tehsildar Singh)
was initially appointed as Daftari on 2/8/1965 and was later on re-
designated as Head Constable (M). He retired from service on
attaining the age of superannuation w.e.f. 31/8/2009. Like others,
his salary was also revised vide order dated 22/6/2020 (Annexure
P/3) while his pension was revised vide order dated 14/7/2020
(Annexure P/4). The recovery of an amount of Rs.11,85,707/- was
directed against him, out of which Rs.6,73,729/- was to be
recovered towards excess amount paid to him while Rs.5,11,978/-
was to be recovered towards interest.
5. The State Govt. created new Police Ranks (Ministerial) in the
State Police Force under Section 2 of the Police Act, 1861. The
Ministerial employees though equated with executive posts, but it
was decided to continue to draw emoluments in their existing pay
scales or as may be revised from time to time. This gave rise to
litigation filed before erstwhile State Administrative Tribunal and
ultimately travelled upto Apex Court and was decided by Apex
Court in the case of S.H. Baig (supra). After the decision of Apex
Court in S.H. Baig case, the action was taken by the respondents
to re-fix the salary of the ministerial employees which has resulted
into impugned recovery. It be noted that by the time impugned
recovery orders were passed, the petitioners already retired from
service on attaining the age of superannuation.
6. The respondents have re-fixed the salary/pension of the
petitioners and have also passed separate orders directing recovery
of excess amount together with interest. The petitioners have not
challenged the orders of refixation of their salary/pension.
Meaning thereby, they have accepted the factum of wrong fixation
and consequent revision of their salary/pension. The issue is,
therefore, only about the recovery of the excess amount from them
after retirement.
7. The learned counsel for the petitioners placed reliance upon the
Full Bench decision of this Court in the case of State of Madhya
Pradesh & others Vs. Jagdish Prasad Dubey reported in 2024(2)
M.P.L.J. 198 as also Apex Court decision in the case of State of
Punjab Vs. Rafiq Masih (White Washer) reported in (2015)4 SCC
334 and submitted that even if the amount was paid to petitioners
in excess, the same cannot be recovered from the petitioners after
their retirement. He also submitted that the hardships being faced
by the petitioners is also required to be looked into. He, therefore,
submitted that impugned recovery from the retiral dues of
petitioners, is not sustainable and liable to be quashed.
Alternatively, he also submitted that since the petitioners were not
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responsible for wrong fixation, the amount towards interest cannot
be recovered from them.
8. On the other hand, learned counsel for the State justified the
impugned recovery and submitted that after the judgment of the
Apex Court in the case of S.H. Baig (supra), the respondents
reconsidered the cases of all the employees and re-fixed their
salary/pension. The petitioners were not entitled to amount at
higher rate. The excess amount paid to such employees, on
account of erroneous fixation of their salary, is required to be
recovered from them. He submitted that, in similar case, the High
Court in the case of Smt. Sushma Tiwari Vs. State of M.P. & Ors.
passed in W.A. No.1760/2007 has upheld the action of recovery of
amount vide judgment dated 21/4/2011. The learned counsel also
relied upon the judgment passed by the Apex Court in the case of
State of Punjab & Haryana Vs. Jagdev Singh reported in (2016)14
SCC 267. The learned counsel for the State also placed reliance
upon the orders passed by the coordinate Benches of this Court in
the case of Smt. Shiv Kumari Kshetri & Ors. vs. State of M.P. &
Ors. passed in W.P. No.4445/2005, Rajedra Bhawsar Vs. State of
M.P. & Ors. passed in W.P. No.826/2017 and Smt. Sobha Jadhav
Vs. State of M.P. & Ors. passed in W.P. No.26972/2019.
9. The learned counsel for the State further submitted that since
the petitioners have submitted an indemnity bond, where they
have undertaken to refund the amount in case of excess payment,
they are bound by said undertaking and, therefore, now they
cannot dispute the recovery being made by the respondents.
10. Considered the arguments and perused the record.
11. The Full Bench of this Court has settled the issue of recovery
of the amount from the employee after his retirement in the case
of Jagdish Prasad Dubey (supra), wherein the Full Bench has
issued the following directions:- "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 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
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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 (supra) unless the
undertaking is given voluntarily."
12. In view of aforesaid legal position, if the undertaking
furnished by petitioners in W.P. No.2629/2021 & W.P.
No.2646/2021 is seen, it is gathered that the undertaking has been
submitted at the time of retirement. Therefore, in view of the
directions issued by the Full Bench in para 35(a), such an
undertaking cannot be relied upon by the respondents to justify the
recovery which relates back to a long time ago during the service
tenure of the employee. Further, as observed by the Full Bench,
the hardship of the concerned employee is also required to be
looked into. These are the cases where petitioners were working as
ministerial staff of the Police Department. They have retired long
back in the year 2009, 2015 & 2016. The amount directed to be
recovered from them is also huge. The recovery of amount from
their retiral dues would certainly cause serious hardship to the
petitioners. So far as W.P. No.2649/2021 is concerned, there is no
undertaking filed on record by the respondents.
13. As far as judgment of the Apex Court in the case of Jagdev
Singh (supra) is concerned, the Apex Court permitted recovery
from the employee therein in view of the undertaking given by
him. However, the undertaking in the present case cannot be relied
upon by respondents in view of subsequent Full Bench decision of
the High Court in the case of Jagdish Prasad Dubey (supra).
Therefore, the judgment rendered by the Apex Court in the case of
Jagdev Singh (supra) is of no help to the respondents.
14. The other judgments relied upon by the counsel for the
respondents which are passed by the coordinate Benches of this
Court also relates to the period prior to the judgment of Jagdish
Prasad Dubey (supra) and are passed relying upon Jagdev Singh .
Thus, in view of subsequent Full Bench judgment of this Court,
the judgment passed by the coordinate Bench of this Court are also
of no help to the respondents.
15. The Apex Court decision in the case of Rafiq Masih (supra),
therefore, is also worth notable at this stage, wherein, in para 18
Apex Court issued following directions:- "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
herein above, we may, as a ready reference, summarise the
following few situations, wherein recoveries by the employers,
would be impermissible in law:
(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.
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(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."
16. It is seen from the impugned orders that a huge amount is
sought to be recovered from the petitioners towards interest. These
are not the cases where the petitioners are held responsible for
erroneous fixation of the salary. Therefore, even if for the sake of
arguments it is presumed that respondents are entitled to recover
excess amount, the respondents cannot be allowed to recover the
interest from the petitioners.
17. In view of aforesaid discussion of facts and law, particularly in
view of the judgment of Full Bench of this Court in the case of
Jagdish Prasad Dubey (supra) and Apex Court judgment in the
case of Rafiq Masih (supra), the impugned orders of recovery are
not sustainable in law. The impugned recovery orders in respect of
each petitioner are accordingly quashed. If any amount is
recovered from the petitioners, the same be refunded to them,
alongwith interest @ 6% per annum from the date of its recovery
till actual payment.
18. All these three petitions are accordingly allowed and disposed
of."
6. Panel Lawyer for the State though has vehemently opposed the
petition but is not in a position to point out any distinguishing feature in the
present case.
7. The said erroneous benefit of basic pay of Rs. 70/- which was
granted as per Rule 7(1)(b)(iv) of M.P. Revision of Pay Rules 1963. The
dispute arose in matter of merging of the special pay in the revised pay scale
and seeking benefits at par with Executive members of Police Force. There is
no undertaking on record for that fixation.
8. The other objection taken is that some employees who were
similarly situated had filed writ petitions and the interest part only was set
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aside, therefore, the petitioner cannot now challenge the Principal part.
However, in the opinion of the Court since subsequently, a Coordinate
Bench of this has taken view that the principal part also of the recovery
cannot be made from the ministerial employees and the said view has also
been confirmed recently by the Division Bench in W.A. No. 1657/2025
(State of M.P. & others vs. Ramrao Bhimte) , therefore, the aforesaid
objection would pale into insignificance. This is because the State as an
model employer is bound to maintain parity between same set of employees.
9. Resultantly, the petition is allowed in similar terms as decided by
the Coordinate Bench of this Court in case of Tehsildar Singh (supra) and the
recovery of interest (if any) as well as principal part ordered to be recovered
from the petitioner is hereby set aside. If any amount has already been
recovered, the same be refunded to the petitioner within a period of four
months from the date of production of certified copy of this order, failing
which the amount will carry interest @ 6% p.a. from the date of this order till
actual payment.
10. Accordingly, in above terms, the petition stands allowed and
disposed off.
(VIVEK JAIN)
JUDGE
rj
