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2023 Supreme(MP) 911
IN THE HIGH COURT OF MADHYA PRADESH
Raj Mohan Singh, J.
Manish Jaiswal v. State of M.P.
Writ Petition No. 7663 of 2019 (J);
Decided on 1.12.2023*
Amit Kumar Chaturvedi for petitioner; Arnav Tiwari, Panel Lawyer for respondents/State
Headnote:
Civil Services -- recovery of excess payment -- fixation of pay for certain 5 years made by department voluntarily -- no misrepresentation or fraud played by petitioner -- subsequent undertaking will not be applicable with retrospective effect -- order of recovery on ground of erroneous pay fixation totally illegal -- quashed. (2015) 4 SCC 334 followed. 2016 (4) SCT 286 discussed. [Para 9 to 11
flfoy lsok && vf/kd lank; dh olwyh && dfri; ik¡p o"kZ d¢ fy, foÒkx }kjk LosPN;k osru fu;r fd;k x;k && ;kph }kjk d¨Ã nqO;Zins'ku ;k diV ugÈ && i'pkr~orÊ opui= Òwry{kh çÒko ls ykxw ugÈ g¨xk && xyr osru fu;ru d¢ vkèkkj ij olwyh dk vkns'k iw.kZr% voSèk && vfÒ[kafMrA ¼2015½ 4 ,llhlh 334 vuqlfjrA 2016 ¼4½ ,llhVh 286 foosfprA ¼iSjk 9 ls 11
ORDER
1. The petitioner has preferred this writ petition, assailing the order dated 13.3.2019 (Annexure P-2) passed by the respondent No.4/Divisional Forest Officer, Shahdol.
2. Perusal of the order dated 13.3.2019 shows that the pay fixation of the petitioner was found to be erroneous and an amount of Rs.1,42,318/- was directed to be deposited along with an interest by means of challan before 25.3.2019. In the event of failure to do so within the time prescribed, the amount along with interest shall be recovered from the monthly salary of the petitioner.
3. Learned counsel for the petitioner submits that the pay fixation was done for the period with effect from July 2009 to December 2015. The petitioner had no role to play in the aforesaid fixation and he never misrepresented before the respondent/department nor was any fraud played by the petitioner in any manner in the context of the getting pay fixation from the respondent/department. The petitioner is a Class-III employee working as Forest Guard in the respondent department. Besides the order in question, interest @ 12% per annum from June 2011 has been levied on the alleged recoverable amount, which according to the learned counsel for the petitioner is hit by doctrine of “Audi Alteram Partem”. No notice was ever issued by the respondent No.4 before passing the order dated 11.3.2019. The petitioner was initially appointed as Forest Guard on probation, and on 18.8.2008 on completion of probation period, the petitioner was confirmed and since then he is holding Class-III post. No departmental enquiry was ever conducted against the petitioner nor was any misconduct alleged at any point of time.
4. The pay fixation for the period July 2009 to December 2015 was a voluntarily act of the respondent/department in which the petitioner has not played any role whatsoever. The recovery is sought to be effected on the basis of alleged undertaking given by the petitioner on 14.11.2017.
5. Learned counsel for the petitioner submits that consequent to the aforesaid undertaking, the impugned order has been passed on 11.3.2019 i.e. the day on which even recovery based on the alleged wrong fixation of pay scale had become time barred. Even otherwise the alleged undertaking does not relate to the alleged wrong fixation of pay from July 2009 to December 2015.
6. Bare perusal of the undertaking would show that the same was in respect of the benefits arising out of 7th Pay Commission with effect from 1.1.2016 and does not cover the pay fixation from July 2009 to December 2015. The undertaking dated
14.11.2017 is reproduced here as under :--.
| izi=&rhu opu i= ¼Undertaking½ eq>s ;g Kkr gS fd fnukad 1-1-2016 ls Lohd`r e/;izns'k osru iqujh{k.k fu;e 2017 ds izko/kkuksa ds varxZr esjk tks osru fu;ru vHkh iqujhf{kr osru esfVªDl esa fd;k x;k gS og vufUre ¼Provisional½ gSA esa opu nsrk@nsrh gw¡ fd eSa jkT; 'kklu dks og laiw.kZ jkf'k tks fd osru fu;ru eas vfu;ferrk ds dkj.k rFkk vU; dksbZ Hkh /kujkf'k tks fd bl izdkj osru fu;ru ds dkj.k eq>s vf/kd Hkqxrku fd xbZ gS] 'kklu ds funsZ'kksa ds vuq:i fu/kkZfjr jkf'k okil d:axk@d:axh rFkk bl izdkj dh jkf'k esjs ns; Lorksa ls ftuesa isa'ku] xzsP;qVh ,oa vodk'k uxnhdj.k dh jkf'k Hkh lfEefyr gS] dkVh tk ldsxhA eSa ;g Hkh opu nsrk@nsrh g¡w fd ;fn mDrkuqlkj esjs }kjk ns; jkf'k dks esa ykSVkus esa vleFkZ jgrk@jgrh gw¡] rks bl ns; jkf'k dh okilh ds fy, esa vius mRrjkf/kdkfj;ksa] fu"ikndksa] izfrfuf/k;kasa vkSj leuqnsf'kfr;ksa dks vkc) djrk@djrh gw¡ eSa ;g Hkh lgefr nsrk@nsrh gw¡ fd esjs }kjk ns; jkf'k eq>ls jktLo fd cdk;k ds :i es olwy dj yh tk,A |
7. Evidently, the following important aspects are attached to the present case :--
(a) The fixation of pay with effect from July 2009 to December 2015 was a voluntarily act of the respondent/department.
(b) The petitioner has not played any overtact in getting the aforesaid fixation done by means of any misrepresentation or fraud.
