Dr. N.S. Khera vs The State Of Madhya Pradesh

NEUTRAL CITATION NO.2026:MPHC-GWL:33255
1 WP No. 7036 of 2016
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
th
ON THE 28 OF OCTOBER, 2026
WRIT PETITION No. 7036 of 2016
CNR No.: MPHC030247162016
DR. N.S. KHERA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri K.K. Sharma – Advocate for petitioner.
Shri K.K. Prajapati – Government Advocate for respondent/State.
ORDER
Present petition, under Article 226 of Constitution of India, has been
preferred seeking the following relief (s):
“(i) Hon'ble Court may kindly be pleased to quash the impugned
recovery from the Pension of petitioner shown in the orders dt.
12.12.14 & 12.9.16 issued by the respondent no.5 contained in
Annexure P/1 & P/2, in which, a sum of Rs.17,75,952/- along with
interest thereon has already been recovered from the Pension of
the petitioner.
(ii) That this Hon'ble Court may kindly be pleased to direct the
respondents to release all the pensionery benefits to the petitioner
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 10/31/2026
1:06:43 PM

NEUTRAL CITATION NO.2026:MPHC-GWL:33255
2 WP No. 7036 of 2016
without influence of the impugned Recovery order shown in the
impugned orders dt.12.12.14 & 12.9.16 issued by the respondent
no.5 contained in Annexure P/1 & P/2.
(iii) That this Hon'ble Court may kindly be pleased to direct the
respondents to return back the whole amount of Rs.17,75,952/-
along with interest to the petitioner within a time bound schedule,
which this Hon'ble Court may deem fit and proper in the facts &
circumstances of the case.
(iv) Any other writ, order or direction, which this Hon'ble Court
deems fit and proper in the facts and circumstances of the case,
may also kindly be passed, in the interest of justice.”
2. Learned counsel for petitioner submits that the controversy involved in
the present petition has already been decided by the Hon'ble Apex Court vide
order dated 26.08.2022 passed in Civil Appeal No.5527 of 2022 [M.P.
Medical Officers Association Vs. The State of Madhya Pradesh and Ors.] .
3. For ready reference and convenience, the order passed by Hon'ble
Supreme Court in M.P. Medical Officers Association (supra) reads as under:
“1. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court of Madhya Pradesh,
Jabalpur in Writ Appeal No. 1073 of 2018 by which the High Court
has allowed the said writ appeal preferred by the State of Madhya
Pradesh and others and has quashed and set aside the judgment and
order passed by the learned Single Judge passed in Writ Petition No.
6236 pf 2014, the original writ petitioners – M.P. Medical Officers
Association and other individual members of the Association have
filed the present appeals.
2. The members of the appellant Association and other appellants
were working as Specialists and Dental Specialists respectively
under the M.P. Public Health and Family Welfare (Gazetted) Service
Recruitment Rules, 1988. The said Rules were repealed by the M.P.
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 10/31/2026
1:06:43 PM

NEUTRAL CITATION NO.2026:MPHC-GWL:33255
3 WP No. 7036 of 2016
Public Health and Family Welfare (Gazetted) Service Recruitment
Rules, 2007 published in the Gazette on 27.03.2008. The State issued
an order on 26.08.2008 to grant higher pay-scale on completion of
six years to the Medical Officers, Dental Surgeons and officers
working in the Specialist cadre in a four tier pay-scales. Later, the
circular dated 23.05.2009 was issued to the effect that the period
from the date of 2 appointment shall be counted as notional
appointment though the benefit of the scheme shall be granted from
the date of issuance of the order of the State Government dated
26.08.2008. In the circular dated 23.05.2009, it was also provided
that the fourth tier pay-scale will be payable on completion of the
prescribed service period, but the financial benefits shall be extended
w.e.f. 26.8.2008. The period between the date of completion of the
prescribed period and 26.08.2008 shall be eligible for notional pay
fixation. Having found that the circular dated 23.05.2009 was
wrongly issued and was issued without approval of the Finance
Department and as the benefits flowing from the circular dated
23.05.2009 were having financial implications/burden and it was
found that the said circular was issued by the authority, who had no
competence and therefore vide communication dated 30.05.2012, the
circular dated 23.05.2009 came to be withdrawn. However, the
respective Medical Officers working as Specialists, Dental
Specialists and the officers working in the specialist’s cadre –
members of the appellant association were granted the actual benefit
flowing from the circular dated 23.05.2009 till 30.05.2012, i.e., till
the circular dated 23.05.2009 was withdrawn. As the benefits were
wrongly paid under the circular dated 23.05.2009, which was
subsequently withdrawn on 30.05.2012, the State Government
ordered recovery of the excess amount paid alongwith the interest.
2.1 The communication dated 30.05.2012 withdrawing the circular
dated 23.05.2009 and the recovery of the excess amount paid
alongwith the interest were the subject matter of Writ Petition No.
6236 of 2014 preferred by the M.P. Medical Officers Association.
Individual writ petitioners also filed their separate writ petitions,
however, the Writ Petition No.6236 of 2014 preferred by the
Association was treated as the lead matter. By common judgment
and order, the learned Single Judge allowed all the writ petitions and
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 10/31/2026
1:06:43 PM

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quashed the communication dated 30.05.2012 withdrawing the
circular dated 23.05.2009. The learned Single Judge also quashed the
orders of recovery of the excess amount paid alongwith the interest.
2.2 Feeling aggrieved and dissatisfied with the judgment and order
passed by the learned Single Judge dated 20.12.2017 passed in Writ
Petition No. 6236 of 2014, the State preferred Writ Appeal No. 1073
of 2018 before the Division Bench of the High Court. By the
impugned judgment and order, the Division Bench of the High Court
has allowed the aforesaid writ appeal and has quashed and set aside
the judgment and order passed by the learned Single Judge quashing
and setting aside the communication dated 30.05.2012 withdrawing
the circular dated 23.05.2009 and also quashing the recovery of the
excess amount paid alongwith the interest. The impugned judgment
and order passed 4 by the Division Bench of the High Court passed
in Writ Appeal No. 1073 of 2018 is the subject matter of the present
appeals.
3. We have heard Shri P.S. Patwalia, learned Senior Advocate
appearing on behalf of the appellant and Shri Saurabh Mishra,
learned Additional Advocate General appearing on behalf of the
respondent State.
4. Having heard the learned counsel for the respective partis and
having gone through the impugned judgment and order passed by the
Division Bench of the High Court and the ground on which the
circular dated 23.05.2009 was withdrawn namely, the same was
issued without authority and/or competence and was issued without
any approval and/or concurrence of the Finance Department as the
benefits flowing from the circular dated 23.05.2009 were having
financial implications/burden, we see no reason to interfere with the
impugned judgment and order passed by the Division Bench of the
High Court upholding the communication dated 30.05.2012
withdrawing the circular dated 23.05.2009. The Division Bench of
the High Court is absolutely justified in quashing and setting aside
the judgment and order passed by the learned Single Judge of the
High Court quashing the communication dated 30.05.2012
withdrawing the circular dated 23.05.2009.
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 10/31/2026
1:06:43 PM

NEUTRAL CITATION NO.2026:MPHC-GWL:33255
5 WP No. 7036 of 2016
4.1 However, at the same time, the Division Bench of the High
Court has erred in quashing and setting aside the judgment and order
passed by the learned Single Judge allowing the writ petitions and
setting aside the recovery of excess amount paid for the period
between 2009 to 2012, which was sought to be recovered with
interest.
5. It is not in dispute that the members of the appellant
association, who were serving as Specialists, Dental Specialists and
officers in the specialist’s cadre got the benefits under the circular
dated 23.05.2009. It was the Department/State, who issued the
circular dated 23.05.2009 and paid the benefits under the circular
dated 23.05.2009 to the members of the appellant association, which
subsequently came to be withdrawn by the State in the year 2012.
Therefore, as such, there was neither any misrepresentation on the
part of the concerned employees – members of the appellant
association nor can the mistake be attributed to them. The mistake, if
any, can be said to be that of the Department/State, who issued the
circular dated 23.05.2009 under which the members of the
association were given certain benefits till the same was withdrawn
in the year 2012. Therefore, in the peculiar facts and circumstances
of the case, the State was not justified in ordering recovery of the
excess amount paid along with the interest. It is true that stricto
sensu, the decision of this Court in the case of State of Punjab and
others Vs. Rafiq Masih, (2015) 4 SCC 334 may not be applicable.
However, at the same time, as observed hereinabove, and in the facts
and circumstances of the case, the State was not justified in ordering
recovery of the excess amount paid with interest, more particularly,
when it is reported that some of the doctors/dentists – members of
the association have retired on attaining the age of superannuation
and the recovery shall be from their pension/pensionary benefits.
However, at the same time, their pay fixation and the pension shall
have to be as per the order dated 26.08.2008.
6. In view of the above and for the reasons stated above, all these
Appeals Succeed in part. The impugned judgment and order passed
by the Division Bench of the High Court upholding the recovery of
the excess amount paid alongwith interest is hereby quashed and set
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 10/31/2026
1:06:43 PM

NEUTRAL CITATION NO.2026:MPHC-GWL:33255
6 WP No. 7036 of 2016
aside. In result, there shall not be any recovery of the excess amount
paid pursuant to the circular dated 23.05.2009 till the same was
withdrawn on 30.05.2012. However, for all other purposes including
the pay fixation and pension etc., the same shall be now worked out
as per the order dated 26.08.2008, as if, the circular dated 23.05.2009
was never issued.
7 Present appeals are accordingly partly allowed to the aforesaid
extent. However, in the facts and circumstances of the case, there
shall be no order as to costs.”
4. Having heard learned counsel for the parties and gone through the order
passed by Hon'ble Supreme Court in the case of M.P. Medical Officers
Association (supra) in the light of facts and circumstances of the present case,
this petition stands disposed of . The directions contained in M.P. Medical
Officers Association (supra) shall apply to the present case mutatis mutandis
with full force.
(Anand Singh Bahrawat)
Judge
pd
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 10/31/2026
1:06:43 PM