Anil Kumar Jain vs The State Of Madhya Pradesh

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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR

BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
st
ON THE 1 OF SEPTEMBER, 2026
WRIT PETITION No. 31248 of 2025
ANIL KUMAR JAIN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Surya Pratap Singh - learned counsel for petitioner.
Shri Prabhat Pateriya - learned Government Advocate for
respondent/State.
ORDER
This petition, under Article 226 of Constitution of India, has been
filed seeking the following relief (s):-
" i) That, the order/ PPO impugned dated 20.05.2024 contained in
Annexure - P/1 issued by the Respondent no. 7 may kindly be quashed
only to the extents whereby recovered an amount of Rs. 5,77,269/-, with
further to revise the PPO, in the interest of justice.
ii) That, the respondents be further commanded to refund the amount of
Rs. 5,77,269/- recovered from the petitioner alongwith interest @ 12%
p.a., in the interest of justice.
iii) Cost of the petition be awarded or any other order or direction
deemed fit in the circumstances of the case be issued in the favour of the
Petitioner.
iv) That any other suitable relief looking to the facts of the case may
kindly be given to the petitioner. "
2. It is submitted by learned counsel for petitioner that initially
petitioner was appointed as UDT in the year 1988. Petitioner stood retired on
30.11.2023 from the post of Lecturer. At the time of retirement, service book
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was referred to the District Pension Office to check whether increment of

wages and pay fixation was done as per Rules or not and as per their
objection, petitioner was given wrong pay fixation. On that basis, recovery
of Rs.5,77,269/- 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 District Pension Office Gwalior, impugned order of recovery Annexure
P-2, calculating recovery to the tune of Rs.5,77,269/-. Learned counsel for
petitioner submits that petitioner stood retired from the post of Lecturer
which is a Class II 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 24.11.2012
till 30.11.2023 i.e. date of retirement, 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
o f State of Punjab Vs. Rafiq Masih (White Washer) reported in (2015) 4
SCC 334.
4. Per contra, learned counsel for the State opposed the prayer by submitting
that the excess amount was paid on account of erroneous fixation of salary and
petitioner is a Class-II employee (Lecturer), therefore, the respondents are entitled
to recover the amount paid in excess, therefore the principle laid down by Hon'ble
Apex Court in the case of Rafiq Masih (supra) is not applicable in case of
petitioner. It is further submitted that at the time of pay fixation, he had given
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consent for recovery in case of excess payment (Annexure R-3). 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 Madhya Pradesh & others Vs. Jagdish Prasad Dubey reported in (2024) 2
M.P.L.J.198 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 or increments done decades ago cannot be
enforced.
(b) Question No. 2 is answered by holding that recovery can
be made towards the excess payment made in terms of Rules
65 and 66 of the Rules of 1976 provided that the entire
procedures as contemplated in Chapter VIII of the Rules of
1976 are followed by the employer. However, no recovery
can be made in pursuance to Rule 65 of the Rules of 1976
towards revision of pay which has been extended to a
Government servant much earlier. In such cases, recovery
can be made in terms of the answer to Question No.1.
(c) Question No.3 is answered by holding that the
undertaking given by the employee at the time of grant of
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financial benefits on account of refixation of pay is a forced
undertaking and is therefore not enforceable in the light of
the judgment of the Hon'ble Supreme Court in the case of
Central Inland Water Transport Corporation Limited (supra)
unless the undertaking is given voluntarily."

7. The Apex Court has also dealt with the similar issue in the case of
Rafiq Masih (White Washer) (supra), wherein, the Apex Court held 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 herein above, we may, as a
ready reference, summarise the following few situations,
wherein recoveries by the employers, would be
impermissible in law:
(i) Recovery from employees belonging to Class-III and
Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are
due to retire within one year, of the order of recovery.
(iii) Recovery from 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."
8. The Supreme Court in the case of Jogeswar Sahoo and others Vs.
District Judge, Cuttack and others reported in 2025 (3) M.P.L.J. (S.C.) 25
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has held as under:

“11. In the case at hand, the appellants were working on the
post of Stenographers when the subject illegal payment was
made to them. It is not reflected in the record that such
payment was made to the appellants on account of any fraud
or misrepresentation by them. It seems, when the financial
benefit was extended to the appellants by the District Judge,
Cuttack, the same was subsequently not approved by the
High Court which resulted in the subsequent order of
recovery. It is also not in dispute that the payment was made
in the year 2017 whereas the recovery was directed in the
year 2023. However, in the meanwhile, the appellants have
retired in the year 2020. It is also an admitted position that
the appellants were not afforded any opportunity of hearing
before issuing the order of recovery. The appellants having
superannuated on a ministerial post of Stenographer were
admittedly not holding any gazetted post as such applying the
principle enunciated by this Court in the above quoted
judgment, the recovery is found unsustainable.”
9. The co-ordinate Bench of this Court has already decided the matter
pertaining to the undertaking in the case of Ravindra Kumar Joshi Vs. The
State of Madhya Pradesh and others [Writ Petition No.17831/2019 vide order
dated 13.05.2024], relevant of which is reproduced below for ready reference
and convenience:
8. …..........It is brought on record by the respondents that at
the time of extending benefit of time scale pay, petitioner has
submitted an undertaking which is placed on record by the
learned counsel for respondents/State and as per the
undertaking, the petitioner had undertaken to repay the
amount, if it was found that the same was extended to him
erroneously. In the matter of High Court of Punjab and
Haryana Vs. Jagdev Singh (supra), the Apex Court has held
that if any undertaking is submitted at the time of grant of
financial benefits on account of refixation of pay, the amount
is refundable to the Government or the same is adjustable in
future, and therefore, the action of the
respondent/Department appears to be correct. Full Bench of
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this Court, in the matter of State of Madhya Pradesh and
others Vs. Jadish Prasad Dubey and others (supra) has
answered the question No.3 by holding that the undertaking
given by the employee at the time of grant of financial
benefits on account of refixation of pay is forced and the
same is not forcible in the light of the Judgment of Hon'ble
Supreme Court in the case of Central Inland Water Transport
Corporation Ltd. and another Vs. Brojo Nath Ganguly and
another (1986) 3 SCC 136, unless the undertaking is given
voluntarily meaning thereby that if undertaking is given
voluntarily, recovery is permissible and if undertaking is
forced, then no recovery is permissible.

9. In the present matter, respondent/State has not established
that petitioner had given undertaking voluntarily. Therefore,
the undertaking shall be treated as obtained forcefully and
therefore, there is no circumstance available in the case to
consider the undertaking, which was not given voluntarily.
On the strength of undertaking, recovery can not be
affected.”
10. Wrong pay fixation was carried out from 24.11.2012 & petitioner had
not furnished undertaking while fixation on 24.11.2012 (as there is no such
undertaking appended in the record). In absence of any specific undertaking at the
time of making payment of such amount i.e. 24.11.2012 , the petitioner would be
entitled to the benefit of the dictum of Apex Court in the case of Rafiq Masih
(White Washer) (supra). The undertaking given by the employee at the time of
grant of financial benefits on account of refixation of pay is forced and the
same is not enforceable in the light of the judgment of Hon'ble Supreme
Court in the case of Central Inland Water Transport Corporation Ltd. and
another Vs. Brojo Nath Ganguly and another (1986) 3 SCC 156, unless the
undertaking is given voluntarily meaning thereby if undertaking is given
voluntarily, recovery is permissible and if undertaking is forced, then no
recovery is permissible. The co-ordinate Bench of this Court in Ravindra
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Kumar Joshi Vs. The State of Madhya Pradesh and others [Writ Petition

No.17831/2019 vide order dated 13.05.2024] held that the State has to
establish that the given undertaking is voluntary. The Apex Court also held
that when there is unequal bargaining power or coercion then the undertaking
will be considered as forceful. In the present matter, respondent/State has not
established that petitioner had given undertaking voluntarily. Therefore, the
undertaking shall be treated as obtained forcefully and therefore, there is no
circumstance available in the case to consider the undertaking, which was not
given voluntarily. On the strength of undertaking, recovery can not be
effected. The said undertaking Annexure R-2 would not benefit the respondents
and the recovery being made from the petitioner is consequently illegal.
11. Petitioner stood retired on 30.11.2023. Recovery pertains to the period
from 24.11.2012 till 30.11.2023 and it was initiated without giving any show
So far as the contention
cause notice to him or an opportunity of being heard.
of the Government Advocate that since petitioner is a Class-II employee
(Lecturer), dictum of Rafiq Masih (supra) is not applicable. This argument is not
sustainable as situation (III) given in Para 18 of Rafiq Masih (supra) is seen,
recovery from employees, when the excess payment has been made for a period in
excess of five years, before the order of recovery is issued, is not permissible. As
per Situation No. (II) mentioned in paragraph 18 of Rafiq Masih (supra),
recovery from a retired employee is also not permissible. The petitioner
retired from service on 30.11.2023, whereas the impugned recovery was
initiated after his retirement. Therefore, on this ground also, the impugned
recovery is not permissible. In view of the aforesaid legal position, the
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impugned recovery is not permissible. Therefore, while setting aside the

impugned recovery, the respondents are directed to refund the amount of
Rs.5,77,269/- to petitioner. The respondents shall pay interest @ 6% per
annum on Rs. 5,77,269/- w.e.f. the date of retirement till actual payment. It is
made clear that in case no recovery is made from the retiral dues, petitioner is
not entitled to the aforesaid relief.
Let the aforesaid exercise be completed within a period of 90 days from the
12.
date of submission of the certified copy of this order failing which, the
respondents shall be liable to pay interest at the rate of 12% per annum on the
aforesaid amount until the date of actual payment.
13. The petition is, accordingly, disposed of.
(ANAND SINGH BAHRAWAT)
JUDGE
Ahmad

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