IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE MANINDER S. BHATTI

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ON THE 23 OF JANUARY, 2026 WRIT PETITION No. 5555 of 2005 SURESH KUMAR PANDEY Versus THE HONBLE SPEAKER, M.P. VIDHAN SABHA, BHOPAL & OTHERS Appearance:

Shri Bhuvnesh Sharma - Advocate for the petitioner.

Shri Hitendra Kumar Golhani - Advocate for the respondents.

ORDER Counsel for the petitioner contended that the matter stands in a narrow compass. During the pendency of the petition, the petitioner has been superannuated way back on 31.03.2011. However, the respondent issued the orders dated 01.06.2012 and 26.11.2012 (Annexures P/33 and P/34 respectively) by which the respondent proposed to recovery of certain amount after retirement of the petitioner. The recovery was stayed by an interlocutory order dated 20.12.2012 passed by this Court. It is contended by the counsel that as the recovery is being sought to be carried out after retirement of the petitioner, the same is impermissible in view of decision of the Apex Court in the case of State of Punjab and others vs Rafiq Masih and others reported in 2015 (4) SCC 334 as well as decision of the Full Bench of this Court in W.A. No. 815 of 2017 (State of M.P. & others Vs.

Jagdish Prasad Dubey) vide order dated 06.03.2024.

2. Counsel for the State has opposed the prayer and submitted that recovery was merely an offshoot of the original impugned orders and therefore, interference with the same is not warranted.

3. Heard the submissions advanced on behalf of the parties and perused the record.

4. It is undisputed that during the pendency of the petition, the petitioner was superannuated on 31.03.2011. The recovery is being sought to be affected after retirement of the petitioner. Such controversy has already been conclusively decided by the Apex Court in the case of Rafiq Masih (Supra) wherein the Apex Court has held in paragraph 18 as under:

"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."

5. The controversy came up for consideration in W.A. No. 815 of 2017 (State of M.P. & others Vs. Jagdish Prasad Dubey) wherein vide order dated 06.03.2024 the Full Bench of this Court had proposed the following three questions:

"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