ORDER

1. In the instant petition, the petitioner has challenged the order of recovery dated 27.12.2022 of Rs.1,43,426/- (principal amount Rs.87,806/- + interest Rs.55,620/-) on the ground of excess amount paid to the petitioner from 1.1.2006 to 2024 on account of wrong fixation of pay.

2. It is stated that the pay of the petitioner was wrongly revised to 9120 + 2100 w.e.f. 1.1.2006 from 4800/- under M.P. Pay Revision Rules 2009 which should have been Rs.8930 + 2100/-.

3. Counsel for the petitioner submits that the petitioner is a retired government employee and the said recovery cannot be made in the light of the judgment passed by the apex Court in the case of State of Punjab v. Rafique Masih (White Washer), (2015) 4 SCC 334 . He further submits that it is not the case of the respondent that the petitioner has not made any misrepresentation or cheating with the department.

4. Counsel for the respondents submits that due to inadvertence, the petitioner was granted wrong fixation of pay and, therefore, the recovery is being made in pursuant to the undertaking submitted by the petitioner and in the light of the judgment passed by the apex Court in the case of High Court of Punjab & Haryana v. Jagdev Singh 2016 SCC Online SC 748.

5. After hearing learned counsel for the parties and considering the fact that it is not the case of the respondents that there was any misrepresentation of fact or any fraud or cheating played by the petitioner with the department.

6. The Full Bench of this Court at Principal Seat, Jabalpur in identical matters has quashed such recovery orders by judgment dated 6.3.2024 passed in Writ Appeal No.815 of 2017 (State of Madhya Pradesh and Another v. Jagdish Prasad Dubey and Another) and connected writ petitions reported in 2024 SCC online MP 1567, it has been held in paragraph No.35 as under:

"Answers to the questions referred

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 and Another v. Brojo Nath Ganguly and Another, reported in (1986) 3 SCC 136 unless the undertaking is given voluntarily."

7. In the case of Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, the apex Court while observing that the petitioners therein were not entitled to the higher pay scales, had come to the conclusion that since the amount has already been paid to the petitioner, for no fault of theirs, the said amount shall not be recovered by the respondent/Union of India. The observation made by the apex Court in the said case is as under:-