Recovery of excess salary not permissible after four years post-retirement without misrepresentation, reaffirming the standing precedents.

ORDER

Heard finally with the consent of both the parties This petition under Article 226 of the Constitution of India has been filed by the petitioner being aggrieved by impugned recovery order dated 25.01.2022 (Annexure P-4) passed by Commandant, 8^th Battalion, SAF, Chhindwada M.P.; whereby an amount of Rs.29,66,982/- has been directed to be recovered from the petitioner as payment of excess salary Rs.13,01,635/- alongwith interest of Rs.16,65,347/- thereon.

2. Brief facts of the case are that the petitioner was initially appointed on 19.05.1981 with the State of M.P. Home Department and on attaining the age of superannuation got retired from the post of Subedar (M) w.e.f. 31.05.2016. According to the petitioner, in view of the fact that nature of duties viz. responsibilities and assignments of Executive and Ministerial Staff on the post of Inspector, Subedar, Sub-Inspector etc. are same, respondent No.2 issued letter dated 25.10.2019 (Annexure P-2) for extending similar pay scale to both the cadres which was granted to the petitioner also. However, when the petitioner got superannuated, vide the impugned order, an order of recovery of excess salary and interest thereon has been issued by respondent No.3. Being aggrieved, the petitioner has filed this petition.

3. It is submitted by the counsel for the petitioner that after retirement, the services of the petitioner are governed by M.P. Civil Services (Pension Rules), 1976 wherein Rule 9(4) provides for that no coercive action of recovery whatsoever can be initiated after four years of retirement which has been done by the impugned order. Moreso, it is contended that in view of Rule 9(4) of the Rules, Governor is only empowered to may recoveries from a retired employee, that too within a period of four years from the date of retirement. Thus, it is contended that the respondents have no jurisdiction to initiate any recovery from the petitioner. It is also submitted that petitioner’s pay scale has been revised without any notice or opportunity of hearing to the petitioner. It is further submitted that on the one hand respondents/authority itself has extended similar pay scale to Executive and Ministerial Staff keeping in view their nature of duties and on the other hand has directed recovery treating it to be excess salary from the Ministerial Staff which is discriminatory. Moreso, when there is no misrepresentation on the part of the petitioner. Further it is contended that identical issue came up before before this Court in W.P.No.15173/2006 which was decided on 19.12.2008 holding that wrong fixation of pay scale, if any, done by the employer, no recovery can be done from the salary/retiral benefits if there is no misrepresentation of the employee. Thus, it is contended that petition may be allowed and the petitioner be granted following reliefs :

“1. to quash impugned order dated 25.01.2022 Annexure P-4 issued by respondent No.3.

2. to direct respondents to pay proper monthly pension to the petitioner in accordance to the pay scale drawn by her at the time of retirement i.e. 31.05.2016 including arrears thereupon with interest @ 18% per annum.

3. to direct the respondents to finalize the payment of gratuity in full in favour of the petitioner by awarding interest @ 18% per annum within a stipulated period of time.

4. to issue any other writ or direction looking to the facts and circumstances of the case and also award cost of litigation in favour of the petitioner.”

4. To bolster his submissions, learned