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2025 DIGILAW 414 (MP)

State Of Madhya Pradesh v. Ramrao Bhimte

2025-07-23

SANJEEV SACHDEVA, VINAY SARAF

body2025
ORDER : Vinay Saraf, J. The instant intra court appeal is preferred by the appellants under Section 2(1) of M.P. Uchcha Nyalayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005, challenging order dated 24.10.2024 passed by learned Single Judge in W.P. No.32850/2024, whereby learned Single Judge has allowed the writ petition and quashed the order of recovery dated 26.9.2024 with a direction to refund the amount already recovered along with interest @ 6% per annum from the date of recovery till the date of payment. 2. With the consent of parties, argument heard for the purpose of final disposal of the present writ appeal at motion stage. 3. Shri Swapnil Ganguly, Deputy Advocate General appeared on behalf of appellants and Shri Atul Kumar Rai, Advocate appeared on behalf of respondent. 4. The short facts of the case are that, respondent Ramrao Bhimte was superannuated from the post of Sub Inspector (M) from the office of Deputy Inspector General of Police (Intelligence), PHQ, Jahangirabad, Bhopal on 30.06.2017. He was initially appointed as Constable (M) on 01.07.1981 in the Police Department and thereafter promoted time to time and after completing service of more than 36 years, retired from the post of S.I. (M) w.e.f. 30.06.2017. On 26.09.2024, an order was issued by the DIG Bhopal for recovery of Rs.10,87,192/- from the amount of pension payable to respondent on account of erroneous payment of adhoc increase in the salary. Respondent put to challenge the said order dated 26.09.2024 in Writ Petition No.32850/2024, which was allowed by learned Single Judge by the impugned order dated 24.10.2024 and the order of recovery was quashed with a direction to refund the amount already recovered along with interest. 5. Learned Deputy Advocate General submits that benefit of adhoc increase in the salary was extended to the respondent erroneously as the Ministerial Staff of Police Department was not entitled for the same. He relied on the judgement delivered by coordinate Division Bench in W.A. No.1760/2007 in the matter of Sushma Tiwari vs. State of M.P. and other connected matters, on 29.4.2011, whereby the coordinate Bench has held that benefit of higher pay scale to the corresponding pay scale in the rules was not given to Ministerial employees and recovery sought to be made from the employees for the period between 01.01.2000 and 17.11.2001, was not justified. He submits that coordinate Division Bench of this Court quashed the recovery of amount erroneously paid to the employees between 01.01.2000 and 17.11.2001. However, permitted to recover the excess amount paid to the employees after 17.11.2001 in installments as the payment of said amount was not legal and justified. 6. Learned Deputy Advocate General appearing on behalf of appellants/State has pointed out that order delivered in the matter of Sushma Tiwari (supra) was challenged before the Supreme Court and the Supreme Court has upheld the order by judgment dated 25.09.2018 delivered in the matter of S.H. Baig and others vs. State of M.P. and others, reported in (2018) 10 SCC 621 , wherein the Supreme Court has held that parity of pay scales cannot be given to Ministerial employees even on the principle of equal pay for equal work as the members of Ministerial (E) Branch did not discharge executive functions and it is well settled law that even if persons are holding same rank/designation and having similar powers, duties and responsibilities they can be placed in different scales of pay and cannot claim the benefit of the principle of equal pay for equal work. 7. Supreme Court further held that in this case the qualifications for appointment, mode of recruitment, training, duties and responsibilities not being similar, the Ministerial employees are not entitled for the relief of equal pay. The Supreme Court was in agreement with the High Court that the Ministerial employees are not entitled to claim parity with the executive post and Supreme Court affirmed the judgment of High Court regarding recovery sought to be made between 01.01.2000 to 17.11.2001. 8. Learned Deputy Advocate General vehemently argued that the High Court has permitted to recover the excess amount paid to the Ministerial employees after 17.11.2001 and only quashed the recovery for the period 01.01.2000 to 17.11.2001 and judgment of High Court was affirmed by the Supreme Court in the matter of S.H. Baig (supra), therefore, learned Single Judge has committed error in quashing the recovery of erroneous amount paid to respondent for the period other than 01.01.2000 to 17.11.2001. He further submits that as the recovery of excess amount has been permitted by coordinate Division Bench of this Court in the matter of Sushma Tiwari (supra) and affirmed by the Supreme Court in S.H. Baig (supra), the impugned order is liable to be set aside. 9. He further submits that as the recovery of excess amount has been permitted by coordinate Division Bench of this Court in the matter of Sushma Tiwari (supra) and affirmed by the Supreme Court in S.H. Baig (supra), the impugned order is liable to be set aside. 9. Learned counsel appearing on behalf of respondent supported the order passed by learned Single Judge and submits that the respondent was not guilty of furnishing any factually incorrect informations or fraud or misrepresentation for erroneous payment of excess amount and therefore, learned Single Judge has correctly quashed the order of recovery issued by the appellants. 10. Heard learned counsel for the parties and perused the record. 11. It is not in dispute that respondent joined the services as Constable (M) vide order dated 01.07.1981 and promoted time to time and superannuated w.e.f. 30.06.2017 from the post of S.I. (M). After almost more than seven years of his superannuation, a recovery order was issued by DIG Bhopal on the ground that from July 1981 to December 2005, Rs.3,01,852/- were paid in excess to the respondent and Rs.7,85,340/- were paid erroneously from January 2006 to December 2015 and therefore, total amount of Rs.10,87,192/- were recoverable in installments from the amount of pension. 12. The Supreme Court in the matter of State of Punjab and others Vs. Rafiq Masih (White Washer), reported in 2015 (4) SCC 334 , after considering the issue of hardship, which may be caused to the employee in case recovery is directed and held that no recovery is permissible from the employees belonging to Class III and Class IV. The relevant para of the judgment reads 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). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (ii) 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. 13. Full Bench of this Court has answered the issue in favour of employees that excess payment made to the employee cannot be recovered in the matter of State of M.P. and others vs. Jagdish Prasad Dubey, I.L.R. 2024 M.P. 575 (FB) and relevant para reads as under:- 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. 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. 14. The judgment relied by the learned Deputy Advocate General delivered in the matter of Sushma Tiwari (supra) is not helpful to appellants as the matter travelled up to Supreme Court and though the judgment was affirmed by Supreme Court but the Supreme Court has permitted to recover the amount paid between 01.01.2000 to 17.11.2001. The arguments of learned Deputy Advocate General cannot be given seal of approval that though the Supreme Court has mentioned that recovery can be made for the period 01.01.2000 to 17.11.2001 but in fact the intention of Supreme Court was to exclude the recovery for this period and permit for the other period. This argument was raised before the Supreme Court in the matter of Anita Choudhary and others vs. State of M.P. (Civil Appeal No.9927/2018), wherein the Supreme Court vide order dated 06.07.2023 deciding the application for clarification of the judgment delivered in the mater of S.H. Baig (supra) has held that the clarification application is not maintainable and if appellant therein was aggrieved by the recovery sought to be made by the State for the period besides the period between 01.01.2000 to 17.11.2001, it is for them to seek appropriate legal recourse as the recovery sought to be made between 01.01.2000 to 17.11.2001 was affirmed by Supreme Court in the matter of S.H. Baig (supra). The liberty was granted to appellant therein to seek appropriate legal recourse to challenge the recovery besides the period between 01.01.2000 to 17.11.2001. 15. The liberty was granted to appellant therein to seek appropriate legal recourse to challenge the recovery besides the period between 01.01.2000 to 17.11.2001. 15. After the order passed in the matter of Anita Choudhary (supra), there is no scope for accepting arguments advanced by learned Deputy Advocate General that the intention of Supreme Court to decline recovery for the period from 01.01.2000 to 17.11.2001 and permit for the prior and after period. The Deputy Advocate General further relied on the order delivered by coordinate Division Bench at Indore in the matter of Prakash Chandra Bhatnagar vs. State of M.P. and others, passed in W.A. No.445/2011, on 10.8.2017, whereby the intra court appeal preferred by the employees seeking quashment of recovery was dismissed relying upon the judgment delivered in the matter of Sushma Tiwari (supra). However, the said order is also not helpful to appellants as the same was passed prior to the judgment delivered by Supreme Court in the matter of S.H. Baig (supra). 16. The M.P. State Administrative Tribunal issued direction to extend the benefit of Choudhary Pay Commission w.e.f. 01.04.1981 by allowing Rs.70/- adhoc increase to the employees of Ministerial Cadre of State Police Force and consequently, the employees of Ministerial Cadre Force were paid the said increase w.e.f. 01.04.1981. That matter travelled up to Supreme Court and decided by the Supreme Court in the matter of S.H. Baig (supra). 17. In view of the above discussion, we found no infirmity in the order passed by learned Single Judge. The impugned order has been passed after considering the judgment delivered by the Full Bench in the matter of Jagdish Prasad Dubey (supra), wherein the judgment delivered by Supreme Court in the matter of Rafiq Masih (supra) was relied on. We are in agreement with the findings recorded by learned Single Judge that the recovery from the respondent after retirement was not permissible. 18. In our view, the judgment delivered by the Supreme Court in the matter of Rafiq Masih (supra) is squarely applicable to the case in hand irrespective to the fact that respondent was employee of Ministerial cadre of M.P. State Police. The Supreme Court has held that no recovery is permissible from a retired employee of Class III or Class IV, if any amount is paid to him erroneously during this service period. The Supreme Court has held that no recovery is permissible from a retired employee of Class III or Class IV, if any amount is paid to him erroneously during this service period. In the matter in hand, respondent was superannuated on 30.06.2017, whereas recovery order was issued after a period of seven years on 26.09.2024, which cannot be given a seal of approval. 19. Consequently, the appeal preferred by the appellants sans merit and is hereby dismissed. No order as to costs.