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Madhya Pradesh High Court · body

2009 DIGILAW 804 (MP)

Dayal Sharma v. State of M. P.

2009-07-14

S.C.SHARMA

body2009
Judgment ( 1. ) The petitioner before this Court, a retired Government servant has filed his present petition being aggrieved by a recovery of Rs. 72.533/- after his retirement. ( 2. ) The contention of the petitioner is that he started his service career as a Constable on 6.2.1965 and thereafter was promoted to the post of Head Constable on 20.10.1988. The petitioner has further stated that he has attained the age of superannuation on 31.12.2006. The grievance of the petitioner is that a PPO was issued, enclosed as Annexure P/1, wherein the respondents have recovered a sum of Rs. 72,535/- from the terminal dues of the petitioner. The petitioners contention is that such a recovery is illegal and respondents cannot be permitted to recover the aforesaid amount from the terminal dues of the petitioner. The learned counsel for the petitioner has relied upon a judgment delivered by the apex Court in the case of Sahib Ram v. State of Haryana and others, 1995 Supp. (1) SCC 18. The learned counsel has also relied upon a judgment delivered by the apex Court in the case of Shyam Babu Verma and others v. Union of India and others, (1994) 2 SCC 521 and has prayed for quashing of the recovery in the matter. He has lastly relied upon a judgment delivered by a Division Bench of this Court in the case of State of Madhya Pradesh v. Smt. Jamwanti Gujral, 2003 (3) MPHT 6 (NOC), wherein, the Division Bench of this Court relying upon a judgment, delivered in the case of Sahib Ram v. State of Haryana and others had held that recovery could not be made from the pensioners. ( 3. ) A reply has been filed by the respondent/State and it has been stated by the respondents that the recovery against the petitioner is on account of erroneous fixation of pay. It has been admitted by the respondents that the petitioner was appointed as a Constable on 5.2.1965 and was promoted to the post of Head Constable on 19.9.1988. The respondents have also admitted that the petitioner has attained the age of superannuation on 31.12.2006. It has been admitted by the respondents that the petitioner was appointed as a Constable on 5.2.1965 and was promoted to the post of Head Constable on 19.9.1988. The respondents have also admitted that the petitioner has attained the age of superannuation on 31.12.2006. The respondents have further stated that at the time the petitioner was promoted, his pay fixation was to be done as per the FR 22 (A) II, however the pay fixation was erroneously done by the authorities as per the FR 22D and therefore with effect from 19.9.1988 to 19.9.1995, the petitioner has drawn excess salary in the pay scale of Rs. 1150-1800. The respondents have further stated that with effect from 1.1.1996, the pay of the petitioner was fixed at Rs. 4,620/- in the pay scale of Rs. 3500-5200, however, that was also on the basis of erroneous calculation and the pay of the petitioner should have been fixed at Rs. 4,380/-. The respondents have further stated that the petitioner has drawn the excess salary with effect from 1.1.1996 to 31.10.2006 also. The contention of the respondent/State is that a notice was issued by the respondents on 28.11.2006 and the petitioner has submitted a reply on the same day i.e. 28.11.2006 stating therein that he does not have any objection in case a recovery is made from the terminal dues. The respondents have prayed for dismissal of the writ petition. Heard learned counsel for the parties at length and perused the record. ( 4. ) In the present case, as stated by the respondents that the recovery is on account of erroneous fixation of pay. The petitioner was promoted to the post of Head Constable on 19.9.1988 and while fixing his pay instead of applying FR 22 (A) II, the fixation was done keeping in view the FR 22 D and therefore, the petitioner had drawn excess salary with effect from 19.9.1988 to 19.9.1995. In the present case, the salary of the petitioner was revised with effect from 1.1.1996 and again his salary was fixed at Rs. 4620/- in the pay scale of Rs.3500-5200 instead of Rs. 4380/- and the petitioner has therefore again drawn higher salary on account of erreneous fixation of pay with effect from 1.1.1996 to 31.10.2006 and therefore, he has drawn a total excess amount of Rs. 72, 535/-. The respondents have recorded the same from the petitioners. ( 5. 4620/- in the pay scale of Rs.3500-5200 instead of Rs. 4380/- and the petitioner has therefore again drawn higher salary on account of erreneous fixation of pay with effect from 1.1.1996 to 31.10.2006 and therefore, he has drawn a total excess amount of Rs. 72, 535/-. The respondents have recorded the same from the petitioners. ( 5. ) The apex Court in the case of Shyam Babu Verma (supra) in paragraphs 11 has held as under :- "(11) Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of recommendations of the Third Pay Commission w.e.f. 1/1/1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they have received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from 1.1.1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same." A similar view was taken by the apex Court in the case of Sahib Ram (supra) and the apex Court in paragraph 5 has held as under: "(5) Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation., The principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any orders as to costs." A similar view was also taken by a Division Bench of this Court while dealing with a case of widow lady receiving family pension in the case of State ofM.P. and others v. Smt. Jamwanti Gujarl (supra). In the present case, the respondents/State have not pointed out that the petitioner was at fault at any point of time in the matter of fixation of pay. It has also not been stated in the return that on account of misrepresentation on the part of the petitioner, the petitioner has drawn excess salary in the matter. This Court has carefully gone through the notice dated 28.11.2006 as well as reply of the petitioner which is also dated 28.. 11.2006, Annexure R/2 and R/3. The so called reply is signed by one Shridayal Pathak, whereas, the name of the petitioner is Shridayal Sharma. ( 6. ) Therefore, in the light of the judgment delivered in the cases referred above. The respondent/State could not have recovered the amount Rs. 72,533/- in the facts and circumstances of the case. Resultantly, recovery of Rs. 72,533/- against the petitioner is hereby quashed. The respondents are directed to refund the amount of Rs. 72,533.00 to the petitioner within a period of two months from the date of receipt of a certified copy of this order. ( 7. ) Though this Court has quashed the order of recovery, the pay fixation done by the respondents is hereby upheld in the matter. The petitioner shall be entitled for pension as per revised fixation done by the respondents. With the aforesaid, the writ petition stands partly allowed. No order as to costs.