Smt. Bharti Gupta vs The State Of Madhya Pradesh

1 WP. No. 21383 of 2017
THE IN HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
th
ON THE 15 OF OCTOBER, 2026
WRIT PETITION No. 21383 of 2017
CNR No.: MPHC030301922017
SMT. BHARTI GUPTA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Rudra Pratap Singh Kaurav - Advocate for the petitioner.
Shri B.M.Patel – Government Advocate for respondents/State.
ORDER
This petition, under Article 226 of Constitution of India, has been
filed seeking the following relief (s):-
“ ¼7-1½ fiVh'kuj dh fiVh'ku dks Lohdkj djrs gq;s mldks çnku fd;s x;s
lsokfgr ykHkksa esa ls vf/kd Hkqxrku dh olwyh :i;s 1]59]965 ¼,d yk[k mulB
gtkj uks lkS iSlB :i;s½ dks ekuuh; U;k;ky; }kjk fn, x, leku fn'kk
funsZ'kksa ds Øe esa lekurk ls C;kt lfgr 30 fnol esa Hkqxrku dj okfil
çnku fd;s tkus ds funsZ'k vkns'k fjLiksUMsUV~l & foHkkxh; çkf/kdkfj;ksa dks
çnku djus dh —ik U;k;fgr esa djsaA
¼7-2½ vU; mfpr fjV] vkns'k vFkok funsZ'k U;k; fgr esa fiVh'kuj ds i{k esa
tkjh djus dh —ik djsa] çdj.k O;; fjLiksUMsUV~l ls fnyk;s tkus dh —ik
djsaA ”
Signature Not Verified
Signed by: ABHISHEK
CHATURVEDI
Signing time: 10/16/2026
6:38:45 PM

2 WP. No. 21383 of 2017
2. Learned counsel for the petitioner submitted that initially petitioner
was appointed in the School Department in the year 1972 and thereafter
retired from the post of UDT on 31.07.2016. At the time of retirement,
service book was referred to the Joint Director, Treasury, Accounts and
Pension Department, Motimahal, 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 and on that basis, recovery of
Rs.1,59,965/- has been ordered.
3. Learned counsel for petitioner submitted 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, impugned order of recovery Annexure P-1 has been
issued calculating recovery to the tune of Rs.1,59,965/-. Learned counsel for
petitioner further submitted that petitioner stood retired from the post of
UDT, 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 19.04.1999
till the date of his retirement i.e. 31.07.2026, 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
Signature Not Verified
Signed by: ABHISHEK
CHATURVEDI
Signing time: 10/16/2026
6:38:45 PM

3 WP. No. 21383 of 2017
paid in excess. It is further submitted by him that at the time of preparation
of pension papers, petitioner had given consent for recovery in case of
excess payment (Annexure R-2). 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 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
Signature Not Verified
Signed by: ABHISHEK
CHATURVEDI
Signing time: 10/16/2026
6:38:45 PM

4 WP. No. 21383 of 2017
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 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.
Signature Not Verified
Signed by: ABHISHEK
CHATURVEDI
Signing time: 10/16/2026
6:38:45 PM

5 WP. No. 21383 of 2017
(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 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
Signature Not Verified
Signed by: ABHISHEK
CHATURVEDI
Signing time: 10/16/2026
6:38:45 PM

6 WP. No. 21383 of 2017
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 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 19.04.1999 and petitioner
had not furnished undertaking while fixation on 19.04.1999 (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., 19.04.1999,
the petitioner would be entitled to the benefit of the dictum of Apex Court in
the case of Rafiq Masih (White Washer) (supra) . Undertaking (Annexure
R-2) was furnished by petitioner after his retirement and she did not furnish
Signature Not Verified
Signed by: ABHISHEK
CHATURVEDI
Signing time: 10/16/2026
6:38:45 PM

7 WP. No. 21383 of 2017
any undertaking at the time of extending the benefits of pay to her, i.e.,
19.04.1999. Thus, it is clear that undertaking was furnished by petitioner at
the time of retirement and she did not furnish any undertaking at the time of
extending the benefit of pay to her. The undertaking furnished by petitioner
at the time of her retirement cannot be said to be an undertaking, for which,
recovery of excess payment, which has been made long back, would become
effective. The said undertaking would not benefit the respondents and the
recovery being made from the petitioner is consequently illegal.
11. Furthermore, in the light of Rafiq Masiih (White Washer) (supra) ,
recovery from (i) employees belonging to Class-III and Class-IV service, (ii)
retired employees, or employees who are due to retire within one year of the
order of recovery; and from (iii) employees, when the excess payment has
been made for a period in excess of five years, before the order of recovery
is issued, is impermissible.
12. Petitioner stood retired on 31.07.2016. Recovery pertains to the period
from 19.04.1999 to 31.07.2016 and it was initiated without giving any show-
cause notice to her or an opportunity of being heard. Furthermore,
petitioner-employee was a Class III employee (Teacher). In view of the
aforesaid legal position, the impugned recovery is not permissible.
Therefore, while setting aside the impugned recovery, the respondents are
directed to refund the amount of Rs.1,59,965/- to petitioner. The respondents
shall pay interest @ 6% per annum on Rs.1,59,965/- 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.
Signature Not Verified
Signed by: ABHISHEK
CHATURVEDI
Signing time: 10/16/2026
6:38:45 PM

8 WP. No. 21383 of 2017
13. Let the said exercise, as directed above, be completed within a period
of 90 days from the date of submission of certified copy of this order, failing
which respondents are directed to pay the aforesaid amount to the petitioner
with interest @12% per annum from the date of entitlement till actual
payment.
14. The petition is, accordingly, disposed of .
(Anand Singh Bahrawat)
Judge
Abhi
Signature Not Verified
Signed by: ABHISHEK
CHATURVEDI
Signing time: 10/16/2026
6:38:45 PM