Kamlakar Nashikkar vs The State Of Madhya Pradesh

NEUTRAL CITATION NO. 2026:MPHC-GWL:25942
1 WP. No. 31601 of 2023
THE IN HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
th
ON THE 25 OF AUGUST, 2026
WRIT PETITION No. 31601 of 2023
KAMLAKAR NASHIKKAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Krishna Kartikey Sharma - Advocate for petitioner.
Shri Prabhat Pateriya – 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 impugned order dated 09.06.2023 Annex. P/1 may
kindly be quashed.
(ii) That, respondent no.2 may kindly be directed to made the re-
fixation of pay and refund the amount deducted with interest from
the pay to the petitioner.
(iii) That, any other relief which this Hon'ble High Court may deem
fit, with cost of the petition.
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 8/31/2026
7:11:31 PM

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2. It is submitted by learned counsel for petitioner that petitioner was
working as a Ward Boy in District Hospital at Morar, Gwalior (M.P.). Petitioner
was serving honestly in the department. Respondents from time to time made
fixation of pay and orders had been issued after approval of the competent
authority. On 09.06.2023, respondents made recovery of Rs.2,20,920/- citing that
wrong pay-fixation had been made to petitioner.
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.2,20,920/- has been issued. Learned counsel for petitioner submits that
petitioner was working on the post of Ward Boy which is a Class IV post and
recovery from Class IV 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 01.01.2006 till 31.03.2023, 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 petitioner was in service when the order of
recovery was issued, therefore, the principle laid down by Hon'ble Apex Court in
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 8/31/2026
7:11:31 PM

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3 WP. No. 31601 of 2023
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
in the case of Central Inland Water Transport Corporation Limited
(supra) unless the undertaking is given voluntarily. "
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 8/31/2026
7:11:31 PM

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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:
“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
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 8/31/2026
7:11:31 PM

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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
employee at the time of grant of financial benefits on account of
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 8/31/2026
7:11:31 PM

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6 WP. No. 31601 of 2023
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 01.01.2006 & petitioner had not
furnished undertaking while fixation on 01.01.2006 (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. 01.01.2006, the petitioner would
be entitled to the benefit of the dictum of Apex Court in the case of Rafiq Masih
(White Washer) (supra) .
11. In the case of Rafiq Masih (White Washer) (supra) while giving the
illustration of the circumstances wherein the recovery of any excess amount paid
to an employee may be prohibited, the Hon. Supreme 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).
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 8/31/2026
7:11:31 PM

NEUTRAL CITATION NO. 2026:MPHC-GWL:25942
7 WP. No. 31601 of 2023
(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."
12. A reading of the above would show that each of the above circumstances
are independent of each other. One of the circumstances where recovery has been
prohibited is where the recovery is being made from an amount paid in excess of
5 years, before issuance of recovery order and in the present case, the wrong pay
fixation is carried out from from 01.01.2006 till 31.03.2023. Thus, the
submission of Government Advocate that recovery from petitioner could be
effected since he was in service when an order of recovery was issued has no
merit. His case squarely falls in Clause (iii) aforesaid, since the recovery was
made after 17 years and it related to a period well in excess of five years.
13. Recovery pertains to the period from 01.01.2006 till 31.03.2023 and it was
initiated without giving any show-cause notice to him or an opportunity of being
heard. Furthermore, petitioner-employee was a Class IV employee (Ward Boy).
In view of the aforesaid legal position, the impugned recovery is not permissible.
Therefore, while setting aside the impugned recovery, the respondents are
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 8/31/2026
7:11:31 PM

NEUTRAL CITATION NO. 2026:MPHC-GWL:25942
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directed to refund the amount of Rs.2,20,920/- to petitioner. The respondents
shall pay interest @ 6% per annum on Rs.2,20,920/- w.e.f. the date of entitlement
till actual payment. It is made clear that in case no recovery is made, petitioner is
not entitled to the aforesaid relief.
14. 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.
15. The petition is, accordingly, disposed of .
(Anand Singh Bahrawat)
Judge
pd
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 8/31/2026
7:11:31 PM