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

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ON THE 20 OF FEBRUARY, 2026 WRIT PETITION No. 5700 of 2026 SURENDRA TIWARI Versus THE STATE OF MADHYA PRADESH AND OTHERS Appearance:

Shri Shailesh Tiwari - Advocate for the petitioner.

Ms. Aishwarya Singh - Deputy Government Advocate for the respondent/State.

ORDER It is contended by learned counsel for the petitioner that it is a case where recovery has been sought to be carried out from the petitioner after his retirement. The petitioner stood superannuated on 31.12.2024 while working as a Class-III employee, thus, no recovery is permissible in view of the law laid down by 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 in view of decision of the Full Bench of this Court in W.A. No. 815 of 2017 (State of M.P. and others Vs. Jagdish Prasad Dubey) vide order dated 06.03.2024.

2. Learned counsel for the State submits that by the impugned order, refixation of the petitioner has been carried out as during the service tenure, the pay scale was incorrectly fixed. However, the counsel submits that as the petitioner might have executed some undertaking, therefore, precluded from assailing the recovery.

3. Having considered the submissions and in view of the aforesaid, the impugned order, so far as it relates to the recovery contained in Annexure P- 3, stands set aside. However, the Court has not interfered with the refixation which has been put forth by the said impugned order. After retirement, the case came up for hearing before the Apex Court in the case of Rafiq Masih (Supra) wherein the Apex Court 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."

6. Again, the controversy came up for consideration before the Full Bench of this Court in W.A. No. 815 of 2017 (State of M.P. & others Vs. Jagdish Prasad Dubey), wherein, by order dated 06.03.2024, the Full Bench of this Court formulated the following three questions for consideration:

"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)."

7. The aforesaid three questi