Recovery of excess amount from a retired government servant must be in accordance with the relevant rules and undertakings. The court emphasized the importance of the applicability of rules and undertakings in determining the legality of recovery.

VIJAY KUMAR SHUKLA, J.

1. Invoking the jurisdiction under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the recovery orders dated 05.02.2016 and 26.03.2016 passed by the respondent no.4 Executive Engineer, Upper Purwa Canal Division, Rewa. The petitioner has also prayed for refund of the amount recovered from the gratuity i.e. Rs. 2,09,595/- along with the interest @ 12% per annum.

2. Brief facts as adumbrated in nutshell are that the petitioner was initially appointed as Lower Division Clerk on 05.07.1979 by the Superintending Engineer, Bansagar Canal Division, Rewa. He joined his duties on 06.07.1979 in the pay-scale of Rs. 169- 300 per month with the increments. He retired from his service on attaining the age of superannuation w.e.f. 31.07.2014 from the post of Assistant Grade-II. A P.P.O. was issued by the respondent no.5 Divisional District Pension Officer, Division Rewa. The petitioner passed Hindi Typing Examination w.e.f. 20th September, 1981 and his services were regularized in the pay scale of Rs. 169-300 w.e.f. 21.09.1982 along with the benefits of the increments. The pay scale of the petitioner was further revised in Rs. 515-800 w.e.f. 1981. The same was again re-fixed in the pay scale of Rs. 870-1420 w.e.f. 01.01.1986 and fixed Rs. 910. The same was further revised to Rs. 935 w.e.f. 21.09.1986. The same was also approved and verified by the respondents no.4.

3. The petitioner worked as Assistant Grade-II and retired from the said post w.e.f. 31.07.2014. After the retirement and issuance of the Pension Payment Order (PPO), the respondents found that the petitioner has been paid excess amount of Rs. 2,09,595/- for the period 01.04.1981 to 01.07.2014. The respondents recovered the said amount from the gratuity of the petitioner. The respondents passed the impugned orders dated 05.02.2016 and 26.03.2016 (Annexure P-4 & P-5)). Earlier the respondents had issued an order of recovery dated 16.03.2015 and directed the petitioner to depositing the same within the period of 3 days but later the same was modified and the amount of Rs. 2,09,595/- has been recovered from the post retiral benefit. The petitioner submitted a representation after the said deduction.

4. Respondents filed the reply and submitted that the petitioner has been paid excess amount due to miscalculation of pay fixation made w.e.f. 01.04.1981 when Madhya Pradesh Pay Revision Rules 1983 had come in to force w.e.f. 01.04.1981. It is further submitted that the petitioner is not entitled to get the benefit of increment as he had not passed the Hindi Typing Examination. It is contended that the petitioner furnished an undertaking on 24.04.1983 that if during the course of pay fixation any excess payment is made, the same would be returned by him, therefore, in view of the undertaking of the petitioner, the said amount has been recovered. Reliance has been placed on the judgment passed by the Apex Court in the case of State of Punjab and Haryana v. Jagdev Singh (2016) 14 SCC 267.

5. Learned counsel for the petitioner submitted that the undertaking is not in respect of the Pay Revision Rules of 1983 and therefore, the undertaking (Annexure R-1) would not be applicable in the present case. He also submitted that indemnity bond referred by the respondent is not an undertaking. He relied on the judgment passed by the Division Bench of this Court in the case of W.A. No. 584/2016 (State of Madhya Pradesh v. Devendra Prasad Dwivedi) whereby, the same contention of the counsel for the State was rejected on the ground that the undertaking which was furnished by the employees was not in respect of the same pay fixation which was found to be erroneous therefore, the judgment passed by the Apex Court in the case of Jagdev Singh (Supra) would not apply. He further relied on the judgment passed by the Division Bench of this Court in W.A. No. 649/2016 (State of Madhya Pradesh & Ors. v. Akhilesh Kumar Pandey) and submit