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2024 DIGILAW 743 (MP)

Nisha Chaturvedi (Smt. ) v. State of Madhya

2024-12-02

ANAND PATHAK, SURESH KUMAR KAIT

body2024
ORDER Kait, C.J. -- 1. The present appeal has been filed by the appellant, widow of Late Rajendra Kumar Choubey, under section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam Adhiniyam, 2005 challenging the judgment and order dated 2.9.2024 passed by the learned Single Bench of this Court in Writ Petition No.13896/2020, whereby the petition seeking quashing of Notice dated 25.4.2020 issued by the respondent authority, directing initiation of recovery proceedings from her late husband out of death-cum-retiral dues, gratuity and other benefits payable to her was dismissed. 2. The appellant in the present appeal has averred that her deceased deceased-husband was appointed on the post of LDC on compassionate grounds vide order dated 25.12.1996, however, with the condition that he shall clear Hindi Typing test within two years, which was extendable up to five years; and till passing of such test, he shall not be entitled to get any increment. 3. Against stipulation of such condition and denial of increment, the deceased-husband husband of appellant approached the learned State Administrative Tribunal by filing O.A.No.1728/1998, which was allowed vide order dated 26.6.1999 granting parity with other similarly situated employees, who had received increments. Pursuant thereto, the Government's Advocate vide Letter dated 4.7.1999 gave an opinion that the deceased was also entitled for increment on parity with other persons. 4. The appellant has claimed that based upon such opinion, the competent authority exempted husband of the appellant from undergoing Hindi Typing Test and made an endorsement in his service book in this regard. Thereafter, the deceased was granted benefit of regular increment vide letter dated 16.9.1999 and was also given promotion to the post of Assistant Grade Grade-2 w.e.f. 21.5.1997 .1997 by the Departmental Promotion Committee. 5. The appellant has averred that due to serious illness her husband died on 25.4.2020. On the even date, a letter was issued by respondent No.4 in the name of appellant that benefit of increment was wrongly extended to him and asked him to show cause to put his defence within seven days. The appellant claims that she informed the authorities of the respondent about the demise of her husband with a prayer to release his retiral dues. The appellant claims that she informed the authorities of the respondent about the demise of her husband with a prayer to release his retiral dues. Yet again, respondent No.4, vide Letter dated 28.7.2020, directed to file defence failing which recovery proceedings shall follow and thereby, rejected appellant's prayer for release of retiral benefits accrued to her upon demise of her husband. 6. The appellant preferred writ petition petition being W.P. No. 13896/2020 before the learned Single Judge thereby challenging the order dated 25.4.2020 issued by the respondent authority, directing recovery from her husband as well as non-consideration non consideration of various representations in respect of release of pension and retiral benefits. 7. The appellant submitted before the learned Single Judge that the District Education Officer vide communication dated 16.9.1999 directed the respondent No.5 - Block Education Officer to give benefit of increment to her deceased-husband husband or else he shall face contempt proceedings (Annexure P-5). Appellant's deceased husband was thus, granted increment and promotion to the post of Assistant Grade II. The appellant also pleaded that once the learned Tribunal vide order dated 26.6.1999 had already directed to grant benefit of increment to her deceased husband, the Committee had no jurisdiction to pass the order dated 25.4.2020. 8. To the contrary, the respondent denied that husband of appellant died during pendency of the issuance of notice dated 25.4.2020 and also that vide order dated 26.6.1999, the claim of petitioner in respect of typing certificate was ever settled. The respondents pleaded before the learned Single Judge that appellant has sought parity with another set of employees, whose services were governed by different set of rules and service conditions and also that the order passed by the learned Tribunal was in respect of grant of increment and it cannot be interpreted as exemption from passing the Hindi Typing Test. As and when this error came into notice of the authorities, the order dated 26.2.2011 was issued, which was never challenged by appellant's deceased husband. 9. The learned Single premised upon the pleadings of the parties, held that since the deceased did not pass the mandatory Hindi Typing Examination, he cannot be given premium to his own failure and dismissed the petition filed by the appellant. 10. 9. The learned Single premised upon the pleadings of the parties, held that since the deceased did not pass the mandatory Hindi Typing Examination, he cannot be given premium to his own failure and dismissed the petition filed by the appellant. 10. The appellant before this Court has averred that the learned Single Judge while passing the impugned judgment did not take into consideration the factual aspect that her deceased husband was exempted from appearing in Typing Examination and endorsement in this respect was also made in his service record, record which was mandatory. 11. Before the learned Single Judge, the learned counsel appearing for respondents opposed the petition and supported the impugned order dated 25.4.2020 passed by the respondent-authority. Further, it is submitted that the present appeal deserves to be dismissed. 12. Learned Single Judge, in the impugned judgment, took note of the fact that respondent No. 4 had issued order dated 26.2.2011 wherein it was stated that her husband was never given any exemption from passing typing test examination, which was a prior condition condition for the examination and that the said order was never challenged by the appellant's husband and thus, the said letter attained finality. 13. The appellant before the learned Single Judge claimed that her deceased husband never received Letter dated 26.2.2011 in his lifetime. 14. Learned Single Judge held that the deceased husband was disqualified to get increment as he could not clear Hindi Tying Examination which was mandatory at the relevant point of time and thus, he cannot get premium of his own failure and thereby, dismissed the petition filed by the appellant herein. 15. The appellant before this Court has pleaded that the order dated 26.2.201l was never communicated to the appellant and during lifetime of her husband, order of grant of increment was never withdrawn by respondent No.4 and therefore, recovery from the retiral dues which are payable to her being the widow of the employee cannot be made. The appellant has, thus, sought setting aside of order dated 2.9.2024 passed by the learned Single Judge. 16. The appellant has, thus, sought setting aside of order dated 2.9.2024 passed by the learned Single Judge. 16. The appellant before this Court has averred that the learned Single Judge while passing the impugned judgment did not take into consideration the factual aspect that her deceased husband was exempted from appearing in Typing Examination and endorsement in this respect was also made in his service record and thereafter only, he was granted benefit of increment vide letter dated 16.9.1999. Also, the learned Single Judge did not take into consideration the fact that the letter dated 26.2.2011 was never communicated to the husband of the appellant. 17. We have gone through the impugned judgment and the material placed before this Court and we find that it is not in dispute that appellant's husband had joined the services of respondents on compassionate grounds and he was required to pass the Hindi typing test within two years. However he has claimed that the requirement of furnishing Typing Certificate was dispensed with by virtue of order dated 26.6.1999 passed by the learned Tribunal. 18. Having gone through the order passed by the learned Tribunal, we find that the learned Tribunal in its decision had observed that the respondents in other cases of compassionate appointment had granted exemption in requisite qualification vide order dated 26.6.1999 and therefore held as under : "The respondents have made it clear in their return that minimum qualification for the post of L.D.C. has been prescribed as Higher Secondary passed with passing of Hindi Typing Examination from recognized Board. The applicant admittedly did not possess the requisite qualification at the time of his appointment on compassionate ground. But it is true that the respondents in other cases have condoned such minimum qualification as mentioned hereinabove. The respondents spondents should extend the same benefit to the applicant also on the same line and they must consider the case of the applicant accordingly, making no discrimination iscrimination in the matter." 19. Pursuant to the aforesaid order passed by the learned Tribunal, an entry was made in the service record of th the appellant's husband. On perusal thereof, we find that the competent authority made an endorsement in the service record of the deceased that "pursuant to decision dated 26.6.1999 passed by the learned Tribunal aat Gwalior and also order No.99/4079 dated 16.9.1999, he is exempted from appearing in the typing examination". 20. On perusal thereof, we find that the competent authority made an endorsement in the service record of the deceased that "pursuant to decision dated 26.6.1999 passed by the learned Tribunal aat Gwalior and also order No.99/4079 dated 16.9.1999, he is exempted from appearing in the typing examination". 20. It is further not in dispute that thereafter, appellant's was promoted to the post of Assistant Grade II. 21. The respondents respondent vide order dated 25.4.2020 initiated the recovery proceedings against the deceased on the ground that he was granted benefit of promotion without clearing the typing examination. The respondents also placed before the Court copy of communication dated 26.2.2011 to show that earlier also informed that he was granted promotion without clearing the typing test, which according to the appellant was never served upon her deceased husband. 22. Upon going through the communication dated 26.2.2011, we find that the respondents vide this communication have observed that the order dated 16.9.1999 has been erroneously passed by the respondents pursuant to decision dated 26.6.1999 rendered by the learned Tribunal, wherein reference has been made to similarly other situated persons, whereas the decision relied upon was in respect of appointment of teacher on compassionate ground and not for the post of LDC and thus, the deceased was not entitled to get benefit of promotion. 23. The learned Single Judge in the impugned judgment dated 2.9.2024 has on this aspect observed that appellant's husband had never challenged the aforesaid order dated 26.2.2011. The appellant has denied receipt of the aforesaid order by her deceased husband and the fact remains that since passing of order dated 26.2.2011 till demise of appellant's husband on 25.4.2020, the respondents did not take any action revoking his promotion or making any recovery from him. 24. The learned Single Judge has also relied upon decision in Pranay Pallay Tripathi v. State of Madhya Pradesh and ors. in W.P.17158/2022 dated 1.7.2024 wherein the petitioner was granted benefit of promotion which otherwise he was not entitled to and since he had not cleared the Hindi Typing Test, which was mandatory at the relevant time, it would set a bad precedent. 25. in W.P.17158/2022 dated 1.7.2024 wherein the petitioner was granted benefit of promotion which otherwise he was not entitled to and since he had not cleared the Hindi Typing Test, which was mandatory at the relevant time, it would set a bad precedent. 25. Relevantly, the aforesaid decision in Pranay Pallay Tripathi (supra), was set aside by a Coordinate Bench of this Court vide order dated 9.8.2024 in W.A.No.1726/2024 titled as Pranay Pallay, Tripathi v. State of Madhya Pradesh and ors., wherein reliance was placed upon Full Bench decision of this Court in The State of Madhya Pradesh and Others v. Jagdish Prasad Dubey passed on 6.3.2024 in Writ Appeal No.815 of 2017, wherein it is held that recoveries can be made towards any excess payment, provided the entire procedure contemplated in Chapter VIII of the M.P. Civil Services (Pension) Rules, 1976 (hereinafter referred as "Pension Rules 1976") is followed by the employer. In Jagdish Prasad Dubey (supra), it was held that an 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 as refusal thereof may deprive the employee of pay refixation. 26. Section 65 of the Pension Rules 1976 contemplates that it shall be the duty of every employee to clear all Government dues before the date of retirement. In the present case, there is no misrepresentation on the part of appellant's husband and during his life time, no action was taken pursuant to notice dated 26.2.2011, if at all any recoveries were to be made towards him. Also, respondents never challenged the decision rendered by the Tribunal wherein a direction was issued to consider the case of deceased on parity with employees of other departments wherein exemption in qualification was permitted for appointment on compassionate grounds. 27. The deceased was promoted to the Post of Assistant Grade II pursuant to holding of DPC. It is settled position of law, as has been spelt out by the Supreme Court in Badrinath v. State of Tamil Tam Nadu (2000) 8 SCC 395 that judicial interference with a DPC decision is justified only when it is mala fide or based on insignificant/irrelevant/inadmissible material. It is settled position of law, as has been spelt out by the Supreme Court in Badrinath v. State of Tamil Tam Nadu (2000) 8 SCC 395 that judicial interference with a DPC decision is justified only when it is mala fide or based on insignificant/irrelevant/inadmissible material. It is not not the case of respondents that the deceased had misrepresented about his qualification or that requirement of necessary qualification has not been dispensed with, even if it may pertain to different branch of the respondent respondent-department. 28. In view of the above, this Court is of the considered opinion that the learned Single Judge vide order dated 2.9.2024 in W.P.No.13896/2024 has fallen in error to uphold the Notice dated 25.4.2020 issued by the respondent-authority authority and the same is accordingly set aside. 29. The present appeal is allowed, with direction to the respondents to extend the benefit of retiral dues, including gratuity and pension etc. and arrears in respect thereof, within four weeks.