Recovery of benefits improperly enforced after a significant delay is inequitable when no fraud or misrepresentation occurred in the payment.

ORDER :

SUBODH ABHYANKAR, J.

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

“7.1 It is therefore most respectfully prayed that this petition be allowed with cost: and an appropriate writ, order or directions be issued against the Respondents for quashing Order No. Stha/22/518-21 dated 22nd February, 2022 (Annexure-P/6);

7.2. It is further prayed that; appropriate writ, order, or directions be issued against the Respondents for quashing Order Stha/2022/2319-20 dated 8^th August 2022 (Annexure P/10);

7.3. It is further prayed that writ, order, or directions be issued against the Respondents for quashing reply dated 7th September, 2022(Annexure-P/12);

7.4. It is further prayed that, appropriate writ, order, or directions be issued against the Respondents for quashing the illegal recovery initiated by the Respondents against the Petitioner; 7.5. That, this Hon’ble Court may further please to grant any other relief, if ' deems fit in present facts and circumstances”

2] The petitioner is aggrieved by the order dated 22.2.2022, (Annexure P-6) and the order dated 8.8.2022 (Annexure P-10). Vide the order dated 22.2.2022 a recovery to the tune of Rs.2,51,038/- has been made against the petitioner on the ground that she has been wrongly given the increment in pay on account of the circular dated 19.6.2013 (Annexure P-5) which relates to sterilization (Nasbandi), and which according to the respondents has not been properly applied. Subsequently on 8.8.2022 (Annexure P-10), the respondent no.2 has also issued a demand letter of Rs.2,51,038/- on the same ground.

3] In brief facts of the case are that the petitioner is posted as Staff Nurse at District Ujjain, and she was granted advance increment on the basis of the circular dated 25.7.2001 which, with a view to promote the family planning programme, and to encourage the government servant to opt for vasectomy/tubectomy (Nasbandi), provides for a payment of an advance increment. The order in respect of advance increment was passed on 19.6.2013( Annexure P-5), however, after a period of around 13 years, i.e., on 22.2.2022, the impugned notice has been issued to the petitioner, and a recovery to the tune of Rs.2,51,038/- has been made against her without affording any opportunity of hearing. Another demand notice by way of order dated 8/8/2022 has also been issued to her wherein it is mentioned that since the petitioner has already operated herself prior to 24.2.2010, she is not entitled to the benefit of the circular as provided to her on 19.6.2013.

4] Counsel for the petitioner has drawn attention of this Court to circular dated 25.7.2022 (Annexure P-2) which clearly provides that to promote the family planning the Government is providing advance increment to the person who agrees for vesctomy/tubectomy (Nasbandi). It is further submitted that even assuming that the petitioner was granted advance increment on account of wrong interpretation of the aforesaid circular, the amount cannot be recovered after a period of 13 years as there is no suppression of facts by the petitioner.

5] In support of his submission, counsel for the petitioner has also drawn the attention of this Court to the decision rendered by the Supreme Court in the case of Thomas Daniel Vs. State of Kerala and others reported as 2022 SCC online SC 536.

6] Counsel for the respondent/State on the other hand has opposed the prayer, and it is submitted that it was a precondition in the aforesaid circular that such person, who has got himself/herself operated upon should be a public servant at the time operation, and has also relied upon circular dated 14.9.2006 (Annexure R-1).

7] Heard. Having considered the rival submissions, and on perusal of the documents filed on record it is found that so far as the order dated 19.6.2013, on the basis of which the petitioner has been granted the benefit of advance increment is concern the same reads as under:-