Arvind Kumar Shrivastava vs The State Of Madhya Pradesh
- Court
- Madhya Pradesh High Court
NEUTRAL CITATION NO. 2026:MPHC-GWL:32160
1 WP-30598-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
th
ON THE 16 OF OCTOBER, 2026
WRIT PETITION No. 30598 of 2023
CNR No.: MPHC030313662023
ARVIND KUMAR SHRIVASTAVA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ashwani Mishra - learned counsel for petitioner.
Ms. Samrti Sharma - learned Government Advocate for respondent/State.
ORDER
This petition, under Article 226 of Constitution of India, has been
filed seeking the following relief (s):-
"7.1) , 30
पटशनर क
रट पटशन को वीकार करते पटशनर को वष
हुये
22.11.2018
क सेवा दनांक को पूण करने उपरांत पटशनर को पूव म दान
15600-39100-6600 ,
कये गये तृतीय #मो$नत वेतनमान %ेड पे दनांक
22.11.2018 /
से ह वीकृत कर दान भुगतान करते पुनः सेवा हत लाभ +
हुए
क गणना कर वेतन पुनः िनधा रण कर प शन आ द का पुनर /ण कये जाने
, ( )
के आदेश दान करते उपादान %े1युट म से अिधक भुगतान क वसूली
हुए
1,42,204 / + 38,716/ 1,72,920/-
3पये 4याज अथा त कुल वसूली रािश 3पये
को माननीय उ 6च $यायालय एवं माननीय उ 6चतम $यायालय 8ारा दए गए
30
समान दशा िनद 9श+ के #म म समानता से िनधा
रत 4याज स हत दवस
, 399/2021 The
म माननीय सव :6च $यायालय के करण िस वल अपील नं.
State of Andhra Pradesh and Another Vs. Smt. Dinavahi Lakshmi
Kameswari 08 2021
म पा
रत आदेश दनांक फरवर के आव =यक पालन के
कम म भुगतान दान कये जाने के आदेश दान करने क कृपा कर ।
(7.2) ,
अ $य उिचत
रट आदेश अथवा िनद 9श $याय हत म पटशनर के प /
,
म जार करने क कृपा कर करण ?यय
र पो$डे$@स से दलाये जाने क
"
कृपा कर ।
2. It is submitted by learned counsel for petitioner that initially petitioner
Signature Not Verified
Signed by: MOHD AHMAD
Signing time: 10/16/2026
7:00:29 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:32160
2 WP-30598-2023
was appointed as UDT in the year 1988. Petitioner stood retired on 31.05.2022
from the post of Lecturer. At the time of retirement, service book 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 1,72,920/- 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-3, calculating recovery
to the tune of 1,72,920/-. 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 1.12.2018 till 31.5.2022 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
of 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.
5. Considered the submissions put forth by learned counsel for the parties
Signature Not Verified
Signed by: MOHD AHMAD
Signing time: 10/16/2026
7:00:29 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:32160
3 WP-30598-2023
and perused the record.
6. The Full Bench 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, 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
Signature Not Verified
Signed by: MOHD AHMAD
Signing time: 10/16/2026
7:00:29 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:32160
4 WP-30598-2023
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:
“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
Signature Not Verified
Signed by: MOHD AHMAD
Signing time: 10/16/2026
7:00:29 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:32160
5 WP-30598-2023
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 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.”
Signature Not Verified
Signed by: MOHD AHMAD
Signing time: 10/16/2026
7:00:29 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:32160
6 WP-30598-2023
10. Wrong pay fixation was carried out from 1.12.2018 & petitioner had
not furnished undertaking while fixation on 1.12.2018 (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. 1.12.2018, the petitioner would be
entitled to the benefit of the dictum of Apex Court in the case of Rafiq Masih
(White Washer) (supra).
11. Petitioner stood retired on 31.5.2022. Recovery pertains to the period
from 1.12.2018 till 31.5.2022 and it was initiated without giving any show cause
notice to him or an opportunity of being heard. So far as the contention 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 (II) given in Para 18 of Rafiq Masih (supra) is seen, recovery from
retired employees, or employees who are due to retire within one year of the order
of recovery, is impermissible. The petitioner retired from service on 31.5.2022,
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 impugned recovery is not permissible. Therefore,
while setting aside the impugned recovery, the respondents are directed to refund
the amount of Rs.1,72,920/- to petitioner. The respondents shall pay interest @
6% per annum on Rs. 1,72,920/- 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.
12. Let the aforesaid exercise be completed within a period of 90 days from
the 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
Signature Not Verified
Signed by: MOHD AHMAD
Signing time: 10/16/2026
7:00:29 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:32160
7 WP-30598-2023
aforesaid amount until the date of actual payment.
13. So far as the relief relating to pay fixation is concerned, the petitioner
has failed to produce any document or circular in support of his claim.
Accordingly, no interference with the existing pay fixation is warranted, and the
same is hereby upheld.
14. The petition is, accordingly, disposed of.
(ANAND SINGH BAHRAWAT)
JUDGE
Ahmad
Signature Not Verified
Signed by: MOHD AHMAD
Signing time: 10/16/2026
7:00:29 PM