Vijay Singh Raje vs The State Of Madhya Pradesh

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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR

BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
th
ON THE 7 OF SEPTEMBER, 2026
WRIT PETITION No. 17522 of 2019
VIJAY SINGH RAJE
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Alok Sharma - Advocate for the petitioner.
Shri K.S. Tomar - Government Advocate for the State.
ORDER
This petition, under Article 226 of the Constitution of India, has been
filed seeking following relief(s):-

"(i) That, the recovery part of the impugned orders
Annexure P/1 & P-2 may kindly be quashed as per law
laid down by this Hon'ble Court dated 22.02.2018 in
case of Smt. Nisha Singhai.
(ii) Any other relief, which this Hon'ble Court may
deem fit and proper may also be given to the petitioner
along with costs."
2. Learned counsel for the petitioner submitted that the petitioner was
initially appointed to the post of Office Assistant Grade-III by order dated
06.05.1980 (Annexure P-3). Thereafter, the petitioner was promoted to the
post of Office Assistant Grade-II by order dated 15.05.1998. Thereafter, the
Government of Madhya Pradesh, Finance Department, issued a circular
dated 24.01.2008 and, in compliance thereof, the petitioner was granted the
second time scale by order dated 05.01.2008 on completion of 24 years of
Signature Not Verified
Signed by: AVINASH
BHARGAV
Signing time: 07-Sep-26
06:40:04 PM

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service with effect from 15.05.2004. Thereafter, the Chief Engineer,

respondent No.3, issued a letter dated 28.05.2016, whereby 18 employees
working on the post of Assistant Grade-II were upgraded and granted the
benefit of the third time scale. The petitioner was also granted the benefit of
the third time scale with effect from 01.07.2014 in compliance with the order
of the Chief Engineer. Thereafter, the Superintending Engineer, respondent
No.4, also issued an official order dated 01.07.2016, whereby the petitioner
was granted the benefit of the third time scale with effect from 01.07.2014
(Annexure P-6). Learned counsel for the petitioner further submitted that
paragraph 4 of the Finance Department circular dated 24.01.2008 provides
that for grant of the benefit of higher pay scale under the scheme applicable
to Government servants, all those eligibility conditions which are prescribed
for promotion are required to be fulfilled. The aforesaid circular pertains to
grant of the benefit of higher pay scale, namely, the first and second time
scales. It is submitted that thereafter a subsequent circular dated 30.09.2014
was issued by the Finance Department and, since the third time scale is
equivalent to that of UDC Grade-I, i.e. Accountant, a candidate is required to
pass at least four papers of the Senior Clerical Examination. Since the
petitioner had not passed the aforesaid four papers, respondent No.3 issued
an order dated 30.11.2016 to respondent No.4 for verification of the status of
the employees who had been granted the benefit of the third time scale. It is
submitted that without considering the aforesaid aspect, respondent No.3
passed the order dated 21.03.2017, whereby the third time scale granted to
the petitioner was withdrawn. It is submitted that the order dated 21.03.2017
Signature Not Verified
Signed by: AVINASH
BHARGAV
Signing time: 07-Sep-26
06:40:04 PM

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was passed without affording any opportunity of hearing to the petitioner. On

that basis, the respondents have also issued a recovery order and directed
recovery of the aforesaid third time scale from the salary of the petitioner.
3. Learned counsel for the petitioner further submitted that a similarly
situated person, Smt. Nisha Singhai had filed W.P. No.2459 of 2017, which
was decided on 22.02.2018. The Coordinate Bench, in the said case, held that
the petitioner therein, namely, Smt. Nisha Singhai did not possess the
requisite qualification for the post of Assistant Grade-I. Therefore, in terms
of Clauses 4 of the Finance Department circular dated 24.01.2008, of which
the Finance Department circular dated 30.09.2014 is an extension, the
petitioner therein would not be entitled to the third time scale of pay, and the
same was rightly withdrawn by the respondents. Learned counsel for the
petitioner fairly submitted that in terms of the judgment dated 22.02.2018,
only the recovery is not sustainable. It is further submitted that against the
aforesaid judgment, the State preferred Writ Appeal No.1051 of 2020, which
was subsequently withdrawn vide order dated 21.10.2020.
4 . Per contra, learned counsel for the State supported the impugned
order and opposed the prayer made by learned counsel for the petitioner and
submitted that once the petitioner is not entitled to the third time scale, the
recovery is justified.
5. Heard learned counsel for the parties and perused the record.
6. The controversy involved in the present case has already been
decided by the Coordinate Bench by judgment dated 22.02.2018 passed in
W.P. No.2459 of 2017 (Smt. Nisha Singhai Vs. State of M.P. and Others) in
Signature Not Verified
Signed by: AVINASH
BHARGAV
Signing time: 07-Sep-26
06:40:04 PM

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the following manner:-

Petitioner has filed this Writ Petition being aggrieved by order
Annexure P-1, whereby the benefit of 3rd time scale of pay has
been withdrawn from the petitioner on account of the fact that the
petitioner had not passed requisite papers of Senior Clerical
Examination, which are mandatory to earn promotion as UDC
Grade-1 equivalent to 3 time scale of pay.
Learned counsel for the petitioner submits that petitioner was
appointed as II Grade Clerk vide order dated 15.07.1980 and
thereafter she was given benefit of II™ Kramonnati vide order
dated 7.04.2009, Annexure P-3, in which her name appears at
serial No. 5 and thereafter she was promoted as Assistant Grade-II
vide order dated 29.04.2013, in which her name appears at Serial
No. 4. Since petitioner had completed 30 years of service,
therefore, in terms of the provisions contained in Finance
Department circular dated 30.09.2014, she became entitled to 3
time scale of pay w.e.f. 01.07.2014 but respondents have
arbitrarily withdrawn said benefits in an arbitrary and illegal
manner on the ground that petitioner had not passed
certain Departmental Examination and, therefore petitioner has
assailed the impugned order Annexure P-1.
It is further submits that no show cause notice was issued prior to
issuance of impugned order Annexure P-1 and further no recovery
can be made in the light of the law laid down in case of Babulal
Jain V.s. State of M.P. And others as reported in (2007) 6 SCC
180, inasmuch as petitioner was given higher pay scale without
there being any misrepresentation on misconception of law and
not due to any mistake, misrepresentation or fraud on the part of
the petitioner, therefore, no recovery can be made from the
petitioner without issuing any show cause notice to the petitioner.
On the other hand learned Govt. Advocate for the State submits
that circular dated 30.09.2014 in the opening paragraphs itself says
that scheme of 3rd time scale of pay is being introduced by way of
extension of Finance Department circular dated 24.01.2008. In
para 6 of the said circular, it is clearly mentioned that the other
conditions and procedures as provided in circular dated
24.01.2008 shall be applicable as it is. He has drawn attention of
this Court to para 4 of the Finance Department circular dated
24.01.2008, which provides that to get benefit of higher pay scale
under the scheme, a Govt. Servant will be required to fulfill all
those eligible conditions, which are fixed for promotion.
In view of such facts, learned Govt. Advocate submits that since
the 3rd time scale of pay is equivalent to that of UDC Grade-
I/Accountant, for which a candidate is required to pass atleast 4
papers of the Senior Clerical Examination out of 6 papers and
since petitioner has not passed these 4 papers, therefore, she is not
entitled to 3th time scale of pay.
Learned Govt. Advocate has placed reliance on the judgment of
Hon'ble Supreme Court in case of Shyam Babu Verma and others.
V.s. Union of India and others as reported in 1994(2) SCC 521 to
Signature Not Verified
Signed by: AVINASH
BHARGAV
Signing time: 07-Sep-26
06:40:04 PM

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point out that for the same grade/post different pay scales can be
prescribed on the basis of qualification and experience. In this
case Hon'ble Supreme Court has held that it was open to
Government to prescribe different scales, more so when the Act
itself classifies Pharmacists into different categories on the basis
of qualification and experience. When there is reasonable basis for
the difference in pay scale, principle of equal pay for equal work
will not be attracted and Court would not normally interferes with
the decision of body of experts in the absence of any
unreasonableness. However, in this case also the ratio is that if
higher pay scale is granted due to no fault of an employee, then it
will not be just and proper to recover any excess amount already
paid to them.
In view of such provisions of law, since petitioner did not possess
requisite qualification for promotion to the post of Assistant
Grade-I, therefore, in terms of the provisions contained in clause 4
of Finance Department Circular dated 24.01.2008, of which
Finance Department Circular dated 30.09.2014 is an extension,
petitioner will not be entitled to 3d time scale of pay and that has
been rightly withdrawn by the respondents. However, the recovery
of arrears of pay as has been ordered by the Chief Engineer is not
sustainable in view of the law laid in case of Babulal Jain (supra)
and Shyam Babu Verma (supra) and, therefore, that recovery part
is quashed and if any recovery has already been made can be
refunded to the petitioner but remaining order Annexure P-1 does
not call for any interference and thus, the petition fails and is
dismissed.

7. The Apex Court has also dealt with the similar issue in the case of
Rafiq Masih (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: AVINASH
BHARGAV
Signing time: 07-Sep-26
06:40:04 PM

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(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 Hon’ble Supreme Court, while considering the question
involved in the present case, in Shyam Babu Verma and Others Vs. Union of
India and Others, reported in (1994) 2 SCC 521, has observed as under:-
11. Although we have held that the petitioners were entitled
only to the pay scale of Rs 330-480 in terms of the
recommendations of the Third Pay Commission w.e.f. January
1, 1973 and only after the period of 10 years, they became
entitled to the pay scale of Rs 330-560 but as they have
received the scale of Rs 330-560 since 1973 due to no fault of
theirs and that scale is being reduced in the year 1984 with
effect from January 1, 1973, it shall only be just and proper not
to recover any excess amount which has already been paid to
them. Accordingly, we direct that no steps should be taken to
recover or to adjust any excess amount paid to the petitioners
due to the fault of the respondents, the petitioners being in no
way responsible for the same.
9. Since the petitioner was granted the higher pay scale without any
misrepresentation or fraud on his part, and the same was not granted due to
any mistake or misrepresentation attributable to the petitioner, no recovery
can be made from him without issuing a show-cause notice and without
following the principles of natural justice. In view of the law laid down by
the Supreme Court in Rafiq Masih (supra), the recovery cannot be sustained
and is hereby quashed.
10. Consequently, the present petition is allowed to the extent
indicated hereinabove. The recovery effected from the petitioner pursuant to
the impugned order is hereby quashed. The respondents are directed to
refund the amount already recovered from the petitioner along with 6 %
interest per annum within a period of three months from the date of receipt
Signature Not Verified
Signed by: AVINASH
BHARGAV
Signing time: 07-Sep-26
06:40:04 PM

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of a certified copy of this order. If the aforesaid amount is not refunded

within the stipulated period, the same shall carry interest at the rate of 12%
per annum from the date of entitlement till actual payment is made. The pay
fixation of the petitioner is hereby upheld.
11. In view of the above, the present petition is disposed of.
(ANAND SINGH BAHRAWAT)
JUDGE
AVI

Signature Not Verified
Signed by: AVINASH
BHARGAV
Signing time: 07-Sep-26
06:40:04 PM