Brandawan Prasad Gour vs The State Of Madhya Pradesh
- Court
- Madhya Pradesh High Court
NEUTRAL CITATION NO. 2026:MPHC-GWL:26900
1 WP-33091-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
th
ON THE 8 OF SEPTEMBER, 2026
WRIT PETITION No. 33091 of 2025
BRANDAWAN PRASAD GOUR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Niraj Shrivastava - Advocate for the petitioner.
Shri Rinkesh Goyal - 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) ,
पटशनर क
रट पटशन को वीकार करते ववादत वसूली प आदेश
हुये
/ /2022/466 14.07.2023
मांक लेखा वािलयर दनांक मय वसूली प क संल न कर
, -1
"ेषत कया गया है &जसक "ित संल न अने )जर पी सीर ज एवं आदेश प
/ /2023/362 02.05.2023 10.04.2023,
कमांक लेखा वािलयर दनांक. एवं
06.04.2023 -2 ,
संल न अने )जर पी सीर ज एवं अ ,य कोई वेतन के अिधक भुगतान क
,
वसूली वसूली के संबंध म 1 आदेश को िनर त करते पटशनर के पुनः सेवा हत
हुए
लाभ 3 क गणना कर वेतन पुनः िनधा 5रण कर प 1शन आ द का पुनर 6ण कये जाने के
, ( )
आदेश "दान करते हुए उपादान 8े9युट म 1 से अिधक भुगतान क वसूली क रािश
98693/-
:पये माननीय उ ;च ,यायालय एवं माननीय उ ;चतम ,यायालय =ारा दए
- 30 ,
गए समान दशा िनद >श3 के म म 1 समानता से िनधा 5
रत ?याज स हत दवस म 1
399/2021 The State of
माननीय सव @;च ,यायालय के "करण िस वल अपील नं.
Andhra Pradesh and Another Vs. Smt. Dinavahi Lakshmi Kameswari
म 1 पा
रत
08 2021
आदेश दनांक फरवर के आव Bयक पालन के कम म 1 वा पस कर भुगतान
"दान कये जाने के आदेश "दान करने क कृपा कर 1 ।
(7.2) ,
अ ,य उिचत
रट आदेश अथवा िनद >श ,याय हत म 1 पटशनर के प 6 म 1 जार
, "
करने क कृपा कर 1 "करण Fयय
र पो,डे,Hस से दलाये जाने क कृपा कर 1 ।
2. It is submitted by learned counsel for petitioner that initially petitioner
was appointed as Teacher (UDT) in the year 1987. Petitioner stood retired on
10.01.2023 from the post of Lecturer at Government Higher Secondary School,
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CHATURVEDI
Signing time: 9/8/2026
7:10:41 AM
NEUTRAL CITATION NO. 2026:MPHC-GWL:26900
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Gorkhi, District Gwalior. At the time of retirement, service book was referred to
the District Pension Officer to check whether increment of wages and pay fixation
was done as per Rules or not and as per their objection, the service benefits of the
petitioner were recalculated and it was found that the respondent-department while
extending senior pay scale from 01.04.2001 to 30.06.2012 made excess payment,
therefore, recovery was rightly effected to the tune of Rs.98,693/-.
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 Treasury
Officer, respondent issued impugned recovery Annexure R-1 calculating recovery
with interest to the tune of Rs.98,693/-. Learned counsel for petitioner submits that
petitioner stood retired from the post of Assistant Teacher 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 01.04.2001 to 30.06.2012, 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 made by
learned counsel for petitioner 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 that petitioner had
given undertaking/consent (Annexure R-3) for recovery in case of excess
payment. 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
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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 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
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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:
“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:
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"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 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 effected.”
10. Wrong pay fixation was carried out from 01.04.2001 to 30.06.2012 and
petitioner had not furnished undertaking while fixation on 01.04.2001. So far as
the undertaking (Annexure R-3) is concerned, it is clear that the said undertaking
mentioned in the reply is not pertaining to the period, in which, recovery has been
made as the said undertaking is dated 01.06.1998 and pay fixation was carried out
in the year 01.04.2001, therefore, in absence of any specific undertaking at the
time of making payment of such amount, petitioner would be entitled to the
benefit of the dictum of Apex Court in the case of Rafiq Masih (White Washer)
(supra). Thus, it is clear that he did not furnish any undertaking at the time of
extending the benefit of pay to him.
11. Petitioner stood retired on 31.01.2023. Recovery pertains to the period
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from 01.04.2001 to 30.06.2012 and it was initiated without giving any show cause
notice to him or an opportunity of being heard. Furthermore, petitioner employee
was a Class III employee. 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.98,693/- to petitioner with
interest @ 6% per annum on Rs.98,693/- w.e.f. the date of retirement till actual
payment within a period of three months, failing which the said amount shall carry
interest @ 12% per annum from the date of realization till actual payment.
12. 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.
13. The petition is, accordingly, disposed of.
14. Interlocutory application, if any, also stands disposed of.
(ANAND SINGH BAHRAWAT)
JUDGE
Abhi
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