Madhya Pradesh High Court
Gafoor Ahmad vs State Of M.P on 27 April, 2026
1 WP. No. 5466 of 2012
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
ON THE 27th OF APRIL, 2026
WRIT PETITION No. 5466 of 2012
SHRI GAFOOR AHMAD (DECEASED) THROUGH LRS. SMT. AFSARI
BEGAM AND ANOTHER
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Mahendra Kumar Sharma - Advocate for petitioner.
Shri B.M. Patel - 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 The concerning respondent/respondents may kindly be directed to quash the impugned orders issued vide Annexures P/1, P/2, P/3 & P/4 in the ends of justice.
7.2 The Respondents may be directed to pay the difference of Gratuity amount of Rs.58,203/- (Rs.2,30,010- Rs.1,71,870/-) without any recovery with interest @ 12% to the petitioner till date without any further delay. (Annexure P/7 in colly). They may also be directed to refund the recovery of Rs. 21105/- and arrears of Pay of Rs. 58928/- (Annexure P/6) may also be paid.
7.3 The Respondents may be directed to pay the pension after fixing it the last pay as Basic Pay by regulating the correct pay fixation at Rs. 6,250/- and not at Rs. 6,125/- with 12% interest till date as per Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 4/30/2026 6:10:33 PM 2 WP. No. 5466 of 2012 last Pay drawn by him (Annexure P/4) done in view of Annexure P/5.
7.4 The Respondents may be directed to pay the benefit of increment during the Period from 01.09.1998 to 09/2006 for Rs. 5,100/- with 12% interest.
7.5 The Rs. 50,000/- as a compensation for mental agony and harassment may please be paid to the petitioner.
7.6 Any other just and proper reliefs warranting under the facts and circumstances of the case be also given to the Petitioner, in the ends of justice."
2. It is submitted by learned counsel for petitioner that initially original petitioner was appointed as Cinema Operator in the Office of respondent No.2 on 16.11.1968. He stood retired on 28.02.2007. On retirement, his service book is showing basic pay @ Rs.6250/- vide order dated 7.8.2006 per month in the Pay Scale of Rs.4500-125-7000/-. The aforesaid pay was rightly fixed as M.P.F.D. order dated 26.07.1998. It is further submitted that after about four years of his retirement, without show cause and opportunity, his pay has been lower down to Rs.6,125/- vide order dated 28.01.2011. Third time, it was again fixed and low down to Rs.5,750/- vide order dated 29.06.2011. Original PPO/GPO was issued on 16.04.2007 treating his last basic pay without show cause as Rs.6,125/- in the pay scale of Rs.4500-125-7000/- and average emoluments as Rs.6,060/-, amount of DCRG was Rs.1,71,807/- and basic pension is fixed as Rs.3,025/-. His pay was again revised in M.P. Pay Scale Rules, 2009 in the Pay Scale 5200-20200/- treating his basic pay as Rs.10,810/-+grade pay Rs.2400/- w.e.f. 01.05.2006 and his pension is revised from Rs.3,025/- per month to Rs.6,605/- per month and DCRG is also revised from Rs.1,71,807/- to Rs.2,17,965/- vide PPO dated 15.03.2011. Thereafter, his pension has been revised vide PPO dated 29.09.2011 treating his basic pay as Rs.11,140+2800=13,940/- in the pay scale of Rs.5200+20200/- and accordingly his pension has been fixed as Rs.6,970/- as Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 4/30/2026 6:10:33 PM 3 WP. No. 5466 of 2012 basic pension and gratuity amount as Rs.2,30,010/-. A recovery order was issued vide letter dated 29.02.2012 to the tune of Rs.47,456/-, as an over payment due to wrong pay fixation, wrongly done by the respondents, but no fault or fraud or/and representation of the petitioner. Vide letter dated 20.7.2012 it has informed that as per petitioner's PPO No.07/09/01/0060, there is a over payment to be recovered from Rs.21,105/- and Rs.47,456/- as per memo dated 2.4.2007 and 28.01.2011 of the CMO Datia. Thus, total recovery amounting to Rs.68,561/- was settled.
3. Learned counsel for petitioner further submitted 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 No.5/Treasury Officer, respondent No.2 issued impugned order of recovery (Annexure P-1), calculating recovery to the tune of Rs.68,561/-. Learned counsel for petitioner submitted that petitioner stood retired from the post of Cinema Operator, 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 01.09.1998 till the date of his retirement, i.e., 28.02.2007, 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. The principle laid down by Hon'ble Apex Court in the case of State of Punjab Vs. Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 4/30/2026 6:10:33 PM 4 WP. No. 5466 of 2012 Rafiq Masih (White Washer), (2015) 4 SCC 334 is not applicable in case of the 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:-
Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 4/30/2026 6:10:33 PM 5 WP. No. 5466 of 2012"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 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 Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 4/30/2026 6:10:33 PM 6 WP. No. 5466 of 2012 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 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: ABHISHEK CHATURVEDI Signing time: 4/30/2026 6:10:33 PM 7 WP. No. 5466 of 2012
10. Wrong pay fixation was carried out from 01.09.1998 and petitioner had not furnished undertaking while fixation on 01.09.1998 (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., 01.09.1998, the petitioner would be entitled to the benefit of the dictum of Apex Court in the case of Rafiq Masih (White Washer) (supra).
11. Original petitioner stood retired on 28.02.2007. Recovery pertains to the period from 01.09.1998 to 28.02.2007 and it was initiated without giving any show-cause notice to him or an opportunity of being heard. Furthermore, original petitioner was a Class III employee (Cinema Operator). 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.68,561/- to the petitioner. The respondents shall pay interest @ 6% per annum on Rs.68,561/- 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 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.
(Anand Singh Bahrawat) Judge Abhi Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 4/30/2026 6:10:33 PM