IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PRANAY VERMA rd ON THE 3 OF MAY, 2023 WRIT PETITION No. 26483 of 2021 BETWEEN:-

SMT. KAVITA KAVACHALE W/O PRAKASH, AGED ABOUT 63 YEARS, OCCUPATION: RETIRED CLINICAL INSTRUCTOR, R/O: 104 SIDDHARTH NAGAR, KESHARBAG ROAD (RTO OFFICE), INDORE (MADHYA PRADESH)

.....PETITIONER (BY SHRI ANAND AGRAWAL - ADVOCATE)

AND

1. THE STATE OF MADHYA PRADESH THROUGH PRINCIPAL SECRETARY, MEDICAL EDUCATION, MANTRALAYA VALLABH BHAWAN BHOPAL (MADHYA PRADESH)

2. D E A N MEDICAL COLLEGE M.Y. HOSPITAL CAMPUS, INDORE (MADHYA PRADESH)

3. PRINCIPLE GOVT. NURSING COLLEGE CRP LINE BEHIND THE M.Y. HOSPITAL, INDORE (MADHYA PRADESH)

4. DIVISIONAL PENSION OFFICER, PENSION OFFICE, COLLECTORATE, INDORE (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI ANENDRA SINGH PARIHAR - PANEL LAWYER)

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

ORDER

Heard finally with the consent of both the parties.

By this petition preferred under article 226 of the Constitution of India, Signature Not Verified Signed by: SHILPA the petitioner has prayed for the following reliefs:-

A. Quashing the recovery orders dt.21.10.2021 (Annexure P/1) so also recovery order dt. 05.08.2021, 23.03.2021 (Annexure P/2).

B. Quashing the re-fixation order dt. 22.06.2021 (Annexure P/3) in so far as it relates to the grant of the pay scale of Rs.15000-39100-5400 with effect from 01.07.2014 as the petitioner is entitled for this pay scale with effect from 01.04.2006.

C. The respondents may kindly be directed to pay the pension, gratuity and leave encashment to the petitioner on the basis of the pay scale 15000- 39100-5400 with effect from 01.04.2006 alongwith all consequentional benefits to the petitioner.

D. Any other writ, direction or order that the Justice of this case may require.

2. Brief facts leading to filing of this petition are that the petitioner retired from the post of Clinical Instructor. She had been performing his duties to the utmost satisfaction of all concerned till his superannuation on 31.08.2020. She had been drawing the pay scale as fixed. Subsequently, enquiry was raised to the effect whether the petitioner would be entitled for the same. In response to the query, it was submitted that the petitioner is not so entitled.

3. In view of the aforesaid re-fixation of salary of the petitioner was done and it was held that the excess amount of Rs.16,18,384/- paid to him is to be recovered. The recovery order dated 05.08.2021 (Annexure P/2) was subsequently passed by the Principal Government Nursing College Indore, respondent No.3. The petitioner was asked to deposit the aforesaid amount by order dated 21.10.2021 (Annexure P/1).

4. Learned counsel for the petitioner contended that the impugned order o f recovery is determental to the petitioner. There had not been any mis- representation on part of the petitioner and therefore the order of recovery from her retiral dues is not sustainable in the light of decision of the Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (2015) 4 SCC Signature Not Verified Signed by: SHILPA

334. It is submitted that the alleged undertaking which was submitted by the petitioner (Annexure-R-7) which was under compulsion for finalization of his pensionery benefits. The petitioner had submitted the undertaking but had not waived his right to challenge the illegal recovery and re-fixation. The forcible and compulsive Undertaking is not a consent. Learned counsel for the petitioner has further placed reliance upon the judgment passed by this Court in the matter of N.P.S. Sisodia Vs. State of M.P. reported in M.P. Weekly Notes 2022 (II) MPWN 32, wherein recovery order has been quashed and respondents were directed to refund the amount, if already recovered as well as on delayed payment petitioner shall also be paid simple interest of 6% per annum of entire retrial dues from the date of his entitlement till final payment is made. It is further submitted that the impugned