IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SHRI JUSTICE MANINDER S. BHATTI

th

ON THE 12 OF JANUARY, 2026 WRIT PETITION No. 6157 of 2011

JAYPAL BORKER

Versus

THE STATE OF MADHYA PRADESH AND OTHERS

Appearance:

Shri Shishir Kumar Soni - Advocate for the petitioner.

Shri Yagyavalk Shukla Pl appeared for respondent.

ORDER eventualities were taken note of by the Apex Court in the case of State of Punjab and others v. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 334 wherein the Apex Court held in paragraph 18 as under:

The petitioner is questioning the recovery after retirement who is

superannuated on 28/02/2009. Counsel for the petitioner contends that the said course was not available with the respondents as there could not have been any recovery from the retired employee in view of the decision of the Full Bench of this Court in WA No.815/2017 ((State of M.P. & others Vs. Jagdish Prasad Dubey) wherein the Court has already decided the

controversy, hence, the same deserves to be disposed of.

2 . Per contra, counsel for the State has opposed the prayer and

submitted that as there exists an undertaking as well as an indemnity bond, therefore, in view of the aforesaid, the petitioner is precluded from

questioning the recovery.

3. Having considered the submission and perusal of the record reflects

that it is a case where the recovery was carried out after retirement and such

"18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

4. Thereafter, the controversy came up for consideration before the Full Bench of this Court as well in Jagdish Prasad (Supra) wherein the following questions were framed by the Full Bench:-

"1. Whether the recovery can be ordered to be affected from the pensionary benefits or from the salary in view of an undertaking or Indemnity Bond taken by the employer before the grant of benefit of pay refixation.

2. Whether the recovery on account of excess payment to an employee can be made in exercise of power conferred under Rule 65 of M.P Civil Services Pension Rules, 1976.

3. Whether the undertaking sought at the time of grant of financial benefits on account of refixation of pay is a forced undertaking and thus not enforceable in light of judgment of Supreme Court in (1986) 3 SCC 136 (Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another)."

5. The aforesaid three questions were answered by the Full Bench of this Court in following manner:-

"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 judg