Research › Search › Judgment

Madhya Pradesh High Court · body

2025 DIGILAW 439 (MP)

Shiv Singh Tomar v. State of Madhya Pradesh

2025-08-04

ASHISH SHROTI

body2025
ORDER : Ashish Shroti, J. 1. Regard being had to the similitude of the issue involved in this batch of writ petitions, they are heard analogously and decided by this common order. For convenience sake, facts of Writ Petition No.29642/2022 are taken into consideration. 2. The petitioners in these writ petitions have retired from the post of Assistant Sub-Inspector/Sub-Inspector (Ministerial). On account of certain disputes with regard to fixation of their salary, respondents have issued the impugned orders directing recovery of excess amount paid to the petitioners. 3. Learned counsel for the petitioners has challenged the impugned order of recovery on the ground that excess amount paid to the petitioners because of erroneous fixation of their salary can not be recovered from the petitioners from their retiral dues. He placed reliance upon the order passed by this Court in the case of Tahsildar Singh Vs. State of M.P. & Ors. in W.P. No.2629/2021 as also Full Bench judgment in the case of State of Madhya Pradesh & others Vs. Jagdish Prasad Dubey reported in 2024(2) M.P.L.J. 198 . 4. On the other hand, learned counsel for the respondents/State supported the impugned order and submitted that since the excess amount was paid to the petitioners, respondents are entitled to recover the same. 5. Recently, the similar issue has been considered by the Division Bench at Principal Seat of this Court in the case of State of Madhya Pradesh and others Vs. Ramrao Bhimte (W.A. No.1657/2025) and in the similar circumstances, recovery has been quashed. The Division Bench of this Court has held as under:-. "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. 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. (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. (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. 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. 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. 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." 6. In view of the aforesaid, since the petitioners also stand on the similar footing. Therefore, the orders of the recovery passed against the petitioners is set- aside. The amount, if already recovered from the petitioners by the respondents, shall be refunded to them alongwith the interest at the rate of 6% per annum from the date of recovery till actual payment. 7. With the aforesaid these writ petitions are disposed off.