IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWAL th ON THE 18 OF MARCH, 2024 WRIT PETITION No. 23270 of 2022 BETWEEN:-

SMT. RAMA MORE W/O SHRI RAMNATH MORE, AGED ABOUT 61 YEARS, OCCUPATION: ASSISTANT GRADE-II (RTD.) R/O HOUSE NO. 7, UNIQUE PARISAR, BARFANI DHAM HOSHANGABAD ROAD, BHOPAL (M.P.)

(MADHYA PRADESH)

.....PETITIONER (BY SHRI PARAG TIWARI - ADVOCATE)

AND

1. THE STATE OF MADHYA PRADESH THROUGH ITS PRINCIPAL SECRETARY TRIBAL AFFAIRS DEPARTMENT MANTRALAYA VALLABH BHAWAN BHOPAL (M.P.) (MADHYA PRADESH)

2. THE MANAGING DIRECTOR UDYAMI VIKAS SANSTHAN 35 SHYAMLA HILLS RAJEEV GANDHI BHAWAN BHOPAL (MADHYA PRADESH)

.....RESPONDENTS (SHRI MANAS MANI VERMA - GOVERNMENT ADVOCATE FOR THE STATE)

(SHRI QUAZI FAKHRUDDIN - ADVOCATE FOR RESPONDENT NO. 2)

This petition coming on for admission this day, the court passed the following:

ORDER

This petition is filed being aggrieved of the order dated 27/10/2021 Annexure P-1 vide which respondents have decided to recover a sum of Rs.

4,49,344/- from the gratuity payable to the petitioner.

Brief facts of the present case are that petitioner who was working as Signature Not Verified Signed by: VAIBHAV Assistant Grade-II in the Udyami Vikas Sansthan, Bhopal was to attain age of superannuation but she disputed the age of superannuation and filed W.P. No.

6237/2020 against a premature retirement.

In the said writ petition, the Hon'ble High Court vide order dated

27/05/2020 granted interim protection in favour of the petitioner and directed that order of superannuation dated 30/10/2019 shall remain stayed till the next date of hearing.

It is the petitioner's case that on the strength of this interim protection, petitioner continued to work in the respondent no. 2 institution from June, 2020 till 1/03/2021. On the strength of the interim order, petitioner was paid salary. Thereafter, once the petition was withdrawn, then similarly situated person Shri Ashok Joshi had filed W.P. No. 18332/2020 when order dated 10/06/2021 was passed by the coordinate Bench in presence of Shri Quazi Fakhruddin wherein the Hon'ble Coordinate Bench had directed that payment which has been made to the petitioner for working on the post may not be recovered from him and then held that petitioner will be entitled to get retiral benefits as admissible to him on the date he had attained the age of 60 years. In view of such facts, it is prayed that order of recovery be held as illegal and arbitrary.

Shri Quazi Fakhruddin disputing this position submits that firstly petitioner had furnished an undertaking as contained in Annexure R-2 on 11/11/2020. It is submitted that in view of the said undertaking, respondents were entitled to recover the amount of salary which was paid to the petitioner on account of operation of the interlocutory order.

Shri Quazi Fakhruddin places reliance on the judgment of the Supreme Court in Jagpal Singh Vs. State of U.P. and others 2023 Live Law (SC) 771 and submits that relief of promotion which was granted to a temporary Signature Not Verified Signed by: VAIBHAV peon who continued in work on account of interlocutory orders passed in the special appeal can be withdrawn on dismissal of the said appeal.

Reliance is also placed on the decision of the Hon'ble Supreme Court in Sameer Kumar Majumdar Vs. Union of India and others 2023 Livelaw (SC) 806 wherein relying on para 34, it is submitted that the doctrine of constructive resjudicata will be applicable and since petitioner had withdrawn his earlier petition W.P. No. 6237/2020, therefore, now this petition is not maintainable in terms of the principles of constructive resjudicata.

Reliance is also placed on the judgment of the Supreme Court in Orissa Forest Development Corporation Ltd. Vs. Anupam Traders and another (2020) 15 SCC 146 wherein placing reliance on paragraph 17, it is submitted that after withdrawal of the petition unconditionally, petitioner is not entitled to any relief.

Shri Parag Tiwari in his turn places reliance on