[Cites 8, Cited by 0]
Madhya Pradesh High Court
Durga Shankar Bajpai vs Managing Director on 14 January, 2026
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
NEUTRAL CITATION NO. 2026:MPHC-JBP:3492
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 14th OF JANUARY, 2026
WRIT PETITION No. 12456 of 2017
DURGA SHANKAR BAJPAI
Versus
MANAGING DIRECTOR AND OTHERS
Appearance:
Shri Ajeet Kumar Singh - Advocate for the petitioner.
Shri Sankalp Kochar, counsel for the respondent along with
Shri Sughosh Bhamore appeared for respondent No.4.
ORDER
The petitioner has assailed the order of recovery which according to
counsel was passed in the eve of his service carrier of the petitioner. It is
contended by the counsel that the order contained in Annexure P/2 was
passed when the petitioner was in employment, however, the impugned PPO
issued after the retirement of the petitioner who was Class-III employee.
Counsel for the petitioner contends that the said course was not available
with the respondents as there could not have been any recovery from the
retired employee in view of the decision of the Full Bench of this Court in
WA No.815/2017 ((State of M.P. & others Vs. Jagdish Prasad
Dubey) wherein the Court has already decided the controversy, hence, the
same deserves to be disposed of.
2. It is further contended by the counsel that in the case in hand the
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petitioner was extended the benefit of increment as he was to be
superannuated on 31/08/2016, therefore, he was extended the benefit of
increment. The said benefit was sought to be withdrawn by the respondents
on the strength of circular dated 26/12/2012 (Annexure R/1) filed along with
IA No.12430/2023. Counsel contends that the petitioner could not have been
victimized on the strength of said circular inasmuch as, consequences for
extension of benefit despite availing of leave by the concerned employee
have mentioned therein. As per second last paragraph of the circular, there
exits no provision of recovery from the concerned employee, on the contrary,
the same stipulates that the disciplinary action were proposed against the
officials. Hence it is contended by the counsel that in view of the decision of
the Apex Court in the case of State of Punjab and others v. Rafiq Masih
(White Washer) and others reported in (2015) 4 SCC 334 as well as Full
Bench of this Court in Jagdish Prasad Dubey (Supra), impugned orders
deserve quashement.Counsel for the petitioner also contends that the
respondents be directed to release the pension of the petitioner by counting
the said increment which was given to the petitioner on 01/07/2008.
3 . Per contra, counsel for the State has opposed the prayer and
submitted that the petitioner was not entitled for the increment inasmuch as,
the petitioner availed the leave between the period which is mentioned in the
aforesaid circular contained in Annexure R/1 and accordingly, the order
pertaining to recovery was passed.
4. Having considered the submission and perusal of the record reflects
that it is a case where the recovery was carried out after retirement and such
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eventualities were taken note of by the Apex Court in the case of State of
Punjab and others v. Rafiq Masih (White Washer) and others reported in
(2015) 4 SCC 334 wherein the Apex Court held in paragraph 18 as under:
"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 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).
( i i ) Recovery from the retired employees, or the
employees who are due to retire within 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."
5 . Thereafter, the controversy came up for consideration before the
Full Bench of this Court as well in Jagdish Prasad (Supra) wherein the
following questions were framed by the Full Bench:-
"1. Whether the recovery can be ordered to be affected
from the pensionary benefits or from the salary in view
of an undertaking or Indemnity Bond taken by the
employer before the grant of benefit of pay refixation.
2. Whether the recovery on account of excess payment
to an employee can be made in exercise of power
conferred under Rule 65 of M.P Civil Services Pension
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Rules, 1976.
3. Whether the undertaking sought at the time of grant
of financial benefits on account of refixation of pay is a
forced undertaking and thus not enforceable in light of
judgment of Supreme Court in (1986) 3 SCC 136
(Central Inland Water Transport Corporation Limited
and Another Vs. Brojo Nath Ganguly and Another)."
6. The aforesaid three questions were answered by the Full Bench of
this Court in following manner:-
"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
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.
7. The Apex Court also again in the case of Jogeswar Sahoo and Ors.
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Vs. The District Judge, Cuttack held in paragraph as under:
"7. The issue falling for our consideration is not about
the legality of the retrospective promotion and the
financial benefit granted to the appellants on
10.05.2017. The issue for consideration is whether
recovery of the amount extended to the appellants while
they were in service is justified after their retirement
and that too without affording any opportunity of
hearing.
8. The law in this regard has been settled by this Court
in catena of judgments rendered time and again; Sahib
Ram vs. State of Haryana, Shyam Babu Verma vs.
Union of India, Union of India vs. M. Bhaskar and V.
Gangaram vs. Regional Jt. Director and in a recent
decision in the matter of Thomas Daniel vs. State of
Kerala & Ors.
* * * * *
11. In the case at hand, the appellants were working on
the post of Stenographers when the subject illegal
payment was made to them. It is not reflected in the
record that such payment was made to the appellants on
account of any fraud or misrepresentation by them. It
seems, when the financial benefit was extended to the
appellants by the District Judge, Cuttack, the same was
subsequently not approved by the High Court which
resulted in the subsequent order of recovery. It is also
not in dispute that the payment was made in the year
2017 whereas the recovery was directed in the year
2023. However, in the meanwhile, the appellants have
retired in the year 2020. It is also an admitted position
that the appellants were not afforded any opportunity of
hearing before issuing the order of recovery. The
appellants having superannuated on a ministerial post of
Stenographer were admittedly not holding any gazetted
post as such applying the principle enunciated by this
Court in the above quoted judgment, the recovery is
found unsustainable."
8. In view of the aforesaid law laid down by the Apex Court as well as
the Full Bench of this Court in Jagdish Prasad (Supra) , there could not have
been recovery from the retired employee of Class-III category. Accordingly,
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the impugned orders dated 31/08/2016 (Annexure P/1) and 14/07/2016
(Annexure P/2) stand quashed.
9. The amount, if any, recovered on the strength of impugned orders
be refunded back to the petitioner within 60 days from today along with the
interest of 6% per annum.
10. So far as claim of petitioner as regards extension of benefit of
increment w.e.f. 01/07/2008 is concerned, the petitioner is at liberty to
approach the respondent No.2 by way of a representation within a period of
15 days from today. In such eventuality, respondent No.2 is directed to take
decision on petitioner's representation in the light of relevant circulars
including circulars dated 12/06/2009, 26/12/2012 and 15/07/2022 within a
further period of 60 days. The petitioner is also at liberty to submit details of
identical order, if passed in favour of similarly situated employees, before the
Authority.
11. Accordingly, the petition stands allowed to the extent indicated
hereinabove.
(MANINDER S. BHATTI)
JUDGE
Astha
