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IN THE HIGH COURT OF MADHYA PRADESH
J. K. Maheshwari, J.
Vijay Shankar Trivedi v. State of M. P. and others
Writ Petition No. 2395 of 2017 (Jabalpur); Decided on 17.1.2018
Held : The undertakings which are brought on record relate to fixation of pay at the time of pay revision; first undertaking was submitted on 21.4.1987 and subsequent undertaking is undated. Its language indicates that the benefit of revision of pay extended to the petitioner is provisional and at the time of its finalization, excess amount may be returned back or may be deducted from him. However, looking to the said fact, the analogy drawn by Division Bench of this Court in the case of Chandreshwar Prasad Singh (supra), aptly applies to the facts of this case because the said undertaking was obtained from the petitioner at the time of extending the benefit of pay revision and such act of the petitioner cannot be said to be voluntary act. In view of the said discussion, distinguishing the judgment of Jagdev Singh (supra), and applying the ratio of Rafiq Masih (supra), the order of recovery Annexure P-6 dated 23.11.2017 is hereby quashed. (2014)4 SCC 334 followed. (2016)14 SCC 267 distinguished. Writ Appeal No. 1232 of 2017 decided on. 15.12.2017, Writ Petition No. 8791 of 2016 decided on 6.10.2017, 2017(3) MPLJ 175, Writ Petition No. 16633 of 2016 decided on 23.6.2017 and Writ Petition No. 18758 of 2015 decided on 11.1.2018 relied on.
(2) Civil Services (Pension) Rules, 1976 (M. P.) -- R.65 -- deals with "retiring" Government servant -- does not postulate contingency which may be made applicable after retirement of employee -- not applicable to retired Government employee. [Para 17
(3) Civil Services (Pension) Rules, 1976 (M. P.) -- R.66 -- R.66(3) (a), (b) & (c) deals with situation after retirement of Government employee when formalities specified in R.66 (1)(a) & (b) and R.66 (2) (a),(b) & (c) have been observed by Government -- otherwise, as per sub-rule (4), legal procedure permissible under law can be taken. [Para 18
¼1½ flfoy lsok && lsokfuo`Ùk ljdkjh lsod ls olwyh && osru iqujh{k.k dk Qk;nk nsrs le; mlls opuca/k vfHkizkIr && ;kph dk ;g ÑR; LoSfPNd ugha dgk tk ldrk && olwyh dk vkns'k vfHk[kafMrA vfHkfu/kkZfjr % tks opuca/k vfHkys[k ij yk, x, gSa og osru iqujh{k.k ds le; osru ds fu;ru ls lacaf/kr gS( izFke opuca/k 21-4-1987 dks fn;k x;k Fkk rFkk i'pkr~orhZ opuca/k vfnukafdr gSA mldh Hkk"kk ls minf'kZr gksrk gS fd ;kph dks fn;k x;k osru ds iqujh{k.k dk Qk;nk vafre gS rFkk mls vafre fd, tkrs le; vf/kd jde okil dh tk,xh vFkok ;kph ls dVkSrh dh tk ldsxhA rFkkfi] mä rF; dks ns[krs gq, bl U;k;ky; dh [kaM U;k;ihB }kjk paæs'oj izlkn flag ¼iwoksZä½ ds ekeys dk lkn`'; bl ekeys ds rF;ksa dks mi;qär% ykxw gksrk gS D;ksafd mä opucaèk osru iqujh{k.k dk Qk;nk nsrs le; ;kph ls vfHkizkIr fd;k x;k Fkk rFkk ;kph dk ;g ÑR; LoSfPNd ÑR; ugha dk tk ldrkA mä foe'kZ dh n`f"V ls] txnso flag ¼iwoksZä½ dk fu.kZ; izHksfnr djrs gq, vkSj jQhd elhg ¼iwoksZä½ dk fu.kZ;k/kkj ykxw djrs gq,] olwyh dk vkns'k mikca/k ih&6 fnukad 23-11-2017 ,rn~}kjk vfHk[kafMr fd;k tkrk gSA 2014¼4½ ,l lh lh 334 vuqlfjrA ¼2016½14 ,l lh lh 267 izHksfnrA fjV vihy Ø- 1232 lu~ 2017 fu.khZr fnukad 15-12-2017] fjV ;kfpdk Ø- 8791 lu~ 2016 fu.khZr fnukad 6-10-2017] 2017¼3½ ,e ih ,y ts 175] fjV ;kfpdk Ø- 16633 lu~ 2016 fu.khZr fnukad 23-6-2017 rFkk fjV ;kfpdk Ø- 18758 lu~ 2015] fu.khZr fnuakd 11-1-2018 voyafcrA ¼2½ flfoy lsok ¼isU'ku½ fu;e] 1976 ¼e-iz-½ && fu- 65 && ßlsokfuo`Ùk gksus okysÞ ljdkjh lsod ds ckjs esa gS && og laHkkO;rk dfYir ugha ftls deZpkjh dh lsokfuo`fÙk ds i'pkr~ ykxw fd;k tk lds && lsokfuo`fÙk ljdkjh deZpkjh dks ykxw ughaA ¼iSjk 17 ¼3½ flfoy lsok ¼isU'ku½ fu;e] 1976 ¼e-iz-½ && fu- 66 && fu- 66¼3½¼d½] ¼[k½ ,oa ¼x½ ljdkjh deZpkjh dh lsokfuo`fÙk ds i'pkr~ dh ifjLFkfr ds ckjs esa gS tc ljdkj }kjk fu- 66¼1½ ¼d½ ,oa ¼[k½ rFkk fu- 66¼2½¼d½] ¼[k½ ,oa ¼x½ esa fofuZ"V vkSipkfjdrkvksa dk ikyu fd;k x;k gks && vU;Fkk] mi-fu;e ¼4½ ds vuqlkj] fofèk ds v/khu vuqKs; fof/kd izfØ;k viukbZ tk ldrh gSA ¼iSjk 18
1. This petition under Article 226 of the Constitution of India has been filed by the petitioner, who is a retired Subedar (M) of the Police Department of the Government of M.P. seeking quashment of order of recovery Annexure P-6 dated 23.11.2016 and to seek further direction to decide representation Annexure P-7 and to grant any other relief, which may be deemed fit in the facts of the case.
2. The facts unfolded to file the present petition are that the petitioner was appointed on the post of Assistant Sub-Inspector (M) as per order Annexure P-2 dated 19.6.1982. He was promoted on the post of Account Subedar (M) as per order Annexure P-3 dated 11.7.2014. Thereafter, on attaining the age of superannuation he retired from the said post vide order Annexure P-4 dated 31.10.2016. Because the post retiral dues and pensionary benefits of the petitioner were not settled, however, he submitted representation Annexure P-7 to respondent No. 4 to grant his legible dues. In response thereto order of recovery Annexure P-6 dated 23.11.2016 has been passed, which is assailed in view of the judgment of the Supreme Court in the case of State of Punjab and others v. Rafiq Masih (White Washer), reported in, [(2014)4 SCC 334]. It is contended that the petitioner was a Class III employee since retired, therefore, in the light of the judgment of the Supreme Court in Rafiq Masih (supra), the recovery from the retiral dues, as directed, is not permissible.
3. Learned counsel for the petitioner has placed reliance on a judgment of this Court in Writ Petition No.8791/2016 (Smt. Kapsi Bai v. State of M.P) decided on 6.10.2017 inter alia contending that this Court has considered the judgment of Division Bench of the High Court of Rajasthan, Jodhpur in Civil Special Appeal (W) No. 349/2014 (Mohammed Yusuf v. Maharana Pratap Agriculture and Technology and another) decided on 24.11.2016 wherein the judgment of High Court of Punjab and Haryana and others v. Jagdev Singh reported in, (2016) 14 SCC 267 has been distinguished and the case of Rafiq Masih (supra), has been relied upon. However, agreeing with the view taken by the High Court of Rajasthan, this Court has quashed the order of recovery. In the said judgment it was observed that in Writ Petition No. 16633/2016 (Dr. Ashok Kumar Parashar v. The State of M.P.) decided on 23.6.2017, the Court has rightly observed that rule 65 of M.P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as the Pension Rules) is not applicable to retired Government servant. Reliance has also been placed on a judgment of Division Bench of this Court in Writ Appeal No. 1232/2017 (The State of Madhya Pradesh and others v. Chandrashwar Prasad Singh) decided on 15.12.2017 whereby the Division Bench has observed that since the employee has no option but to give undertaking so as to avail the benefit of pay-fixation, it cannot be said to be voluntary act, thus, such undertaking cannot be made basis for sustaining the recovery. It is said that the aforesaid judgment of Division Bench has again been relied upon by Single Bench of this Court in Writ Petition No. 18758/2015 (Phoolchand Patel v.The State of Madhya Pradesh) decided on 11.1.2018 and the order of recovery is quashed. In such circumstances, the recovery as directed against the petitioner may be ordered to be quashed.
4. Per contra, the State Government by filing the return has inter alia not disputed the factum regarding appointment, promotion and retirement of the petitioner. It is said that at the time of retirement while preparing the pension papers, it was found that the pay of petitioner fixed at the time of his initial appointment was incorrect, which continued till attaining the age of superannuation, however, in view of rule 65 of the Pension Rules, the recovery of the excess amount has rightly been made. The petitioner was informed vide orders dated 5.11.2016 but he has not responded, therefore, the order of recovery dated 23.11.2016 has rightly b
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