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Madhya Pradesh High Court · body

2018 DIGILAW 32 (MP)

Jayanti Vyas v. State of M. P.

2018-01-09

VIVEK RUSIA

body2018
ORDER 1. The petitioner has filed the present petition being aggrieved by order date 23.1.2017 by which recovery of Rs. 1,28,304/- along with interest @ 12% Rs.67,750/- total Rs. 1,96,054/- has been ordered. 2. The petitioner was initially appointed on the post of ANM (Auxiliary Nurse Midwife) in the year 1988. Thereafter her services were regularised after completing the period of probation. During her service she was given the benefit of pay revision under the Pay Revision Rules, 2009 and the benefit of Bramha Swaroop Committee. The petitioner was granted the benefit of second kramonnati w.e.f. 2.11.2008. Now she is going to retire in the month of January, 2018. The respondent Chief Medical and Health Officer Khargone, has passed the order date 23.1.2017 alleging that she has been paid excess amount from 1.4.2006 while pay fixation. After the aforesaid order, the respondents have passed order to recover the said amount. 3. After notice, the respondents have filed the return by submitting that as per recommendation of the Bramha Swaroop Committee, the petitioner was entitled for pay scale of Rs. 5200- 20200+2100 grade pay w.e.f. 1.4.2006 but by mistake she was“fixed in the pay scale of Rs.5200-20200+2400 grade pay. The petitioner had signed the undertaking to the effect that after the aforesaid pay fixation if any excess amount is paid due to the pay fixation, the same can be recovered or is liable to be refunded. Copy of written undertaking is filed as Annexure R/4, therefore, the recovery is permissible from the retiral dues of the petitioner. 4. Learned Counsel for the petitioner submitted that the pay fixation was done by the respondent and if there was any anomaly in it for which the petitioner cannot be held responsible. She is a Class-III employee therefore, recovery is not permissible in the light of the judgment passed by the apex Court in case of State of Punjab and others v. Rafiq Masih, reported in AIR 2015 SC 696 =2015 (1) MPHT 130 (SC). 5. Learned counsel has also placed reliance over the judgment of Division Bench passed in W.A. No.251/2017 Dr.Ashok Pal v. State of M.P. In which also the recovery after retirement has been quashed. 6. Learned GA submits that the case of the petitioner is not covered under any of the situation given in the case of Rafiq Masih (supra). 5. Learned counsel has also placed reliance over the judgment of Division Bench passed in W.A. No.251/2017 Dr.Ashok Pal v. State of M.P. In which also the recovery after retirement has been quashed. 6. Learned GA submits that the case of the petitioner is not covered under any of the situation given in the case of Rafiq Masih (supra). In support of his contention, the learned GA has placed reliance over the judgment of the apex Court in case of High Court of Punjab and Haryana and others v. Jagdev Singh, reported in (2016) 14 Supreme Court Cases 267 in which the apex Court has held that the recovery is permissible from the officers to whom payment was made in the first instance, was clearly put on a notice that excess payment was found to have been made would be required to be refunded and in such“situation, he is bound by the undertaking. 7. Even otherwise, recovery after retirement cannot be made in the light of the the apex Court decision in the case of State of Punjab and others v. Rafiq Masih (supra), the Hon'ble Supreme Court has considered the facts of number of cases, in which, excess amount have been paid to the employees/officers due to various reasons like wrongful fixation, revision of pay etc. and after dealing with all such situations, the apex Court has summarized all cases into 5 categories and issued directions in para 12 and held that in these cases recovery is impermissible. Para 12 of the aforesaid judgment is reproduced below: "12. 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, summarize 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. (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. (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (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. 8. The apex Court in case of State of Punjab and others v. Rafiq Masih (supra), has held that recovery from the employees belonging to Class-III and Class-IV service would be impermissible in law and also the recovery from the retired employee who are due to retire within one year and recovery from the employees when the excess payment has been made for a period in excess of 5 years before the order of recovery is made. The case of the petitioner falls under all the three categories as she belongs to the Class-III services, the recovery is within one year because she is due to retire in the month of January, 2018 and the excess amount has been made for a period in excess of 5 years from the date of impugned order. In case of Jagdev Singh (supra), the apex Court has held that the principle enunciated in Proposition (ii) i.e. recovery from retired employee or employees who are due to retire within one year of the order of recovery cannot be made is the same as in the present case where the written undertaking was given by the writ petitioner as well. In the said case, Jagdev Singh, was a Judicial Officer and the benefit of Superior Judicial Service Revised Pay Rules was given to him therefore, he was not in a position to plead the hardship because of the recovery. But in the present case, the petitioner is going to retire as ANM which is a Class-III post therefore, her case falls under Condition No.(i) to (iii) all hence, the recovery is impermissible. 9. But in the present case, the petitioner is going to retire as ANM which is a Class-III post therefore, her case falls under Condition No.(i) to (iii) all hence, the recovery is impermissible. 9. The respondent has placed the reliance over the judgment passed by the Writ Court in W.P. No. 1484/2016 date 3.2.2017 by which the writ petition was dismissed and the recovery was up held. The said order of Writ Court has also been upheld by the Division Bench in Writ Appeal No. 303/2017. The Division Bench has held that the recovery is permissible because the employee has given an written undertaking for the recovery. Inthe said case, the recovery has been upheld in the light of the judgment passed in the case of Jagdev Singh (supra), because the petitioner is aged about 51 years and at present he is in service but in the present case, the petitioner is going to retire within a month as already mentioned above. Hence, it is distinguishable. Hence, the petitioner is entitled for the relief of quashing of impugned recovery in light of judgment passed by the apex Court in case of Rafiq Masih (supra). 10. Hence, the petition is allowed. Annexure P/1 is quashed. Ranjeet Sen for petitioner; V. Patwa, Government Advocate for respondent/State.