IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT

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ON THE 15 OF JANUARY, 2026 WRIT PETITION No. 5446 of 2017 NARENDRA SINGH SIKARWAR Versus THE STATE OF MADHYA PRADESH AND OTHERS Appearance:

Shri Keher Singh Kaurav - Advocate for the petitioner.

Shri K.K. Prajapati - Government Advocate for the respondent/State.

ORDER This petition, under Article 226 of Constitution of India, has been filed seeking the following relief (s):-

"(i) Order dated 4.7.2017 (Annexure P/1) by which an amount of Rs.1,17,864/- (Rupees One Lac Seventeen Thousand Eight Hundred Sixty Four only) from pension of petitioner has been order to be recovered may be quashed.

(ii) The petitioner may be declared to be entitled for the benefits of second time scale pay has granted to his vide order dated

12.12.2011.

(iii) Any other relief which this Hon'ble court thing appropriate may be granted in favour of the petitioner in the interest of justice."

2. It is submitted by learned counsel for petitioner that initially petitioner was appointed as Lower Division Clerk in the year 1982. The petitioner stood retired on 31.10.2016. At the time of retirement, service book was referred to check whether increment of wages and pay fixation was done as per Rules or not and as per their objection, petitioner was given benefit for which, he was not eligible from 01.04.2006. On that basis, recovery of Rs.1,17,864/- has been ordered.

3. Learned counsel for petitioner submits that without giving any show-cause notice or without affording an opportunity of hearing, without following the principle of natural justice and on the basis of objections raised by respondent No.4, impugned order of recovery Annexure P-1, calculating recovery to the tune of Rs.1,17,864/- was issued. Learned counsel for petitioner submits that petitioner stood retired from the post of Assistant Grade-II which is a Class III post and recovery after retirement of employee is not permissible. It is submitted that alleged excess amount has been paid on account of wrong fixation of salary of petitioner carried out from 01.04.2006 till the date of his retirement i.e., 31.10.2016, however, petitioner is not responsible for wrong fixation. To strengthen his submission, learned counsel for petitioner placed reliance on the Full Bench decision of this Court in the case of State of Madhya Pradesh & others Vs. Jagdish Prasad Dubey reported in (2024) 2 M.P.L.J.198.

4. Per contra, learned counsel for the State opposed the prayer and submitted that the excess amount was paid on account of erroneous fixation of salary and therefore, the respondents are entitled to recover the amount paid in excess. It is further submitted by him that at the time of preparation of pension papers, he had given consent for recovery in case of excess payment (Annexure R-1). It is further submitted that the said undertaking had been given by petitioner voluntarily therefore the principle laid down by Hon'ble Apex Court in the case of State of Punjab Vs. Rafiq Masih (White Washer), (2015) 4 SCC 334 is not applicable in case of petitioner.

5. Considered the submissions put forth by learned counsel for the parties and perused the record.

6. The Full Bench of this Court in the case of Jagdish Prasad Dubey (supra), has dealt with the similar issue and held as under:

"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 judgment passed by the Larger Bench of the Hon'ble Supreme Court in the case of Syed Abdul Qadir (supra). The time period as fixed in the case of Rafiq Masih (supra) reported in (2015) 4 SCC 334 requires to be followed. Converselyan undertaking given at the stage of payment of retiral dues with reference to the refixation of pay