ORDER

1. This petition under Article 226 of the Constitution of India has been filed by the petitioner seeking the following reliefs:-

^^¼7-1½ fiVh'kuj dh fiVh'ku d¨ Lohdkj djrs gq, mld¨ çnku fd, x, lsokfgr ykÒ¨a esa ls vfèkd Òqxrku dh olwyh #i, 2]03]698@& ¼n¨ yk[k rhu gtkj N% l© vuBkuos #i,½ d¨ ekuuh; U;k;ky; }kjk fn, x, leku fn'kk funsZ'k¨a d¢ Øe esa lekurk ls C;kt lfgr 30 fnol esa Òqxrku dj okfil çnku fd, tkus d¢ funsZ'k&vkns'k fjLi¨UMsUV~l foÒkxh; çkfèkdkfj;¨a d¨ çnku djus dh Ñik U;k;fgr esa djsaA
¼7-2½ vU; mfpr fjV] vkns'k vFkok funsZ'k U;k; fgr esa fiVh'kuj d¢ i{k esa tkjh djus dh Ñik djsa] çdj.k O;; fLi¨UMsUV~~l ls fnyk, tkus dh Ñik djsaA**

2. Learned counsel for the petitioner submits that initially the petitioner's husband was appointed on the post of Assistant Teacher in the year 1985. Thereafter, on 31.10.2017, petitioner's husband (original petitioner) was retired from the post of Assistant Teacher which is class-III post. When the case of petitioner's husband (original petitioner) was sent for pension settlement on the work of the retirement then at that time, Joint Director, Treasury raised objected for recovery on account of approved pay fixation. Thereafter, amount of Rs.2,03,698/- was recovered from the gratuity of the petitioner's husband.

3. Learned counsel for the petitioner further submitted that the original petitioner was Assistant Teacher i.e. Class-III post and the impugned recovery order has been issued without any notice or any opportunity of hearing and original petitioner has not misrepresented any point of time. An amount of Rs.2,03,698/- has been directed to be recovered and the petitioner was not responsible for wrong pay fixation. On the aforesaid ground, counsel for the petitioner prays for quashment of impugned recovery. He relied upon the Full Bench decision of this Court in the case of State of Madhya Pradesh & others v. Jagdish Prasad Dubey, (2024) 2 M.P.L.J.198.

4. Per contra, learned counsel for the State has opposed the prayer made by learned counsel for the petitioner and submitted that the excess amount was paid due to wrong pay fixation and the excess amount was recovered rightly from the gratuity of the petitioner. It is further submitted that the petitioner submitted an undertaking in the year 2009 stating that if any excess payment has been made to petitioner, the same may be recovered.

5. Heard learned counsel for the parties and perused the record.

6. The Full Bench of this Court in the case of Jagdish Prasad Dubey (supra), has dealt with the similar issue and held 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. Converselyan 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