Ashok Prasad Sharma vs The State Of Madhya Pradesh

1 WP. No. 17009 of 2025
THE IN HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
th
ON THE 5 OF NOVEMBER, 2026
WRIT PETITION No. 17009 of 2025
CNR No.: MPHC030117932025
ASHOK PRASAD SHARMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Girija Shankar Sharma - Advocate for the petitioner.
Shri K.K. Prajapati – Government Advocate for respondents/State.
ORDER
This petition, under Article 226 of Constitution of India, has been filed
seeking the following relief (s):-
“7.1 That, the impugned order dated 22.04.2025 (Ann. P/1) may
kindly be set-aside.
7.2 That, the respondents authority be directed to paid the amount of
Gratuity to the petitioner with interest 12% per annum to the
petitioner.
7.3 That, the other relief doing justice including cost be awarded.”
2. It is submitted by learned counsel for petitioner that initially petitioner was
appointed as Constable in the year 1984, thereafter he was promoted on the post
Signature Not Verified
Signed by: ABHISHEK
CHATURVEDI
Signing time: 11/6/2026
5:39:49 PM

2 WP. No. 17009 of 2025
of Head Constable in the year 2015 and further promoted on the post of Incharge
Assistant Sub-Inspector in the year 2021 and thereafter he stood retired on
29.02.2024 from the post of Incharge Assistant Sub-Inspector. At the time of
retirement, service book was referred to the Joint Director, Treasury, Accounts
and Pension Department, 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 of wrong pay fixation. On that basis, recovery of Rs.1,15,967/- 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,
impugned order of recovery Annexure P-1, calculating recovery to the tune of
Rs.1,15,967/- has been issued. Learned counsel for petitioner submits that
petitioner stood retired from the post of Incharge ASI, 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 from
01.01.2006 till 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 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 he had given consent for recovery in case of excess
Signature Not Verified
Signed by: ABHISHEK
CHATURVEDI
Signing time: 11/6/2026
5:39:49 PM

3 WP. No. 17009 of 2025
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 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 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
Signature Not Verified
Signed by: ABHISHEK
CHATURVEDI
Signing time: 11/6/2026
5:39:49 PM

4 WP. No. 17009 of 2025
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 has
held as under:
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CHATURVEDI
Signing time: 11/6/2026
5:39:49 PM

5 WP. No. 17009 of 2025
“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 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
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Signed by: ABHISHEK
CHATURVEDI
Signing time: 11/6/2026
5:39:49 PM

6 WP. No. 17009 of 2025
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 January, 2006. Petitioner had not
furnished undertaking while fixation in January, 2006 (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. January, 2006, the petitioner
would be entitled to the benefit of the dictum of Apex Court in the case of Rafiq
Masih (White Washer) (supra) . 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. 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 would not benefit the
respondents and the recovery being made from the petitioner is consequently
illegal.
Signature Not Verified
Signed by: ABHISHEK
CHATURVEDI
Signing time: 11/6/2026
5:39:49 PM

7 WP. No. 17009 of 2025
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 he order of recovery is issued, is
impermissible.
12. Petitioner stood retired on 29.02.2024. Recovery was initiated on
21.05.2024 (Annexure P-1). Furthermore, petitioner-employee was a Class-III
employee (Incharge ASI). In view of the aforesaid legal position, the impugned
recovery is not permissible. Therefore, t he impugned recovery of Rs.1,15,967/-,
i.e., Annexure P-1 is set aside . The respondents are directed to refund
Rs.1,15,967/- to the petitioner along with interest @ 6% per annum from the date
of retirement till the date of actual payment. However, if no recovery has been
made from the petitioner’s retiral dues, the petitioner shall not be entitled to the
aforesaid refund/interest relief.
13. Respondents are directed to comply with the aforesaid directions within a
period of three months from the date of receipt of certified copy of this order,
failing which entire amount will carry 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: 11/6/2026
5:39:49 PM