Madhya Pradesh High Court
Ashok Kumar Khandelwal vs The State Of Madhya Pradesh on 23 February, 2026
NEUTRAL CITATION NO. 2026:MPHC-GWL:6824
1 WP-3285-2013
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
ON THE 23 rd OF FEBRUARY, 2026
WRIT PETITION No. 3285 of 2013
ASHOK KUMAR KHANDELWAL
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri M.K.Sharma - Advocate for petitioner.
Shri Rinkesh Goyal - Government Advocate for respondents/State.
ORDER
1. The instant writ petition under Article 226 of Constitution of India has been filed seeking following reliefs :-
7.1 The Respondent no.3 order dated 07.10.2008 may kindly be quashed.
7.2 The respondents may be ordered to pay back Rs.21,030/- to the petitioner.
7.3 The cost of Petition may kindly also be allowed.
2. Initially, the petitioner was appointed as Lab Assistant in the Department of Fisheries and thereafter, petitioner was promoted on the post of Fisheries Extension Officer (FEO).
3. Learned counsel for petitioner submitted that petitioner was retired on 31/01/2007 on attaining the age of superannuation. Learned counsel for petitioner further submitted that petitioner was retired as Class III employee and without giving any opportunity of being heard, without giving any show cause notice and Signature Not Verified Signed by: SUNEEL DUBEY Signing time: 24-02-2026 11:14:04 NEUTRAL CITATION NO. 2026:MPHC-GWL:6824 2 WP-3285-2013 without compliance of principle of natural justice, the impugned recovery order dated 07/10/2008 has been passed by which the respondents have stated that since 04/02/1992 to December, 2004, wrong payment has been made to petitioner and respondents ordered to recover Rs.65,771/- from petitioner. Learned counsel for petitioner further submitted that after more than 1 year and 9 months, the impugned recovery order has been issued and at no point of time, petitioner has misrepresented any material fact or suppressed any material fact from respondents and wrong pay fixation was carried out by respondents themselves and petitioner is not liable to pay the alleged wrong pay fixation amount. 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 at the time of preparation of pension papers, he had given consent for recovery in case of excess payment. It is further submitted that the said undertaking had been given by petitioner voluntarily therefore the principle laid down by Hon'ble Apex Court in 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:
Signature Not Verified Signed by: SUNEEL DUBEY Signing time: 24-02-2026 11:14:04NEUTRAL CITATION NO. 2026:MPHC-GWL:6824 3 WP-3285-2013 "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 givenby 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: SUNEEL DUBEY Signing time: 24-02-2026 11:14:04NEUTRAL CITATION NO. 2026:MPHC-GWL:6824 4 WP-3285-2013
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 Signature Not Verified Signed by: SUNEEL DUBEY Signing time: 24-02-2026 11:14:04 NEUTRAL CITATION NO. 2026:MPHC-GWL:6824 5 WP-3285-2013 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 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 Signature Not Verified Signed by: SUNEEL DUBEY Signing time: 24-02-2026 11:14:04 NEUTRAL CITATION NO. 2026:MPHC-GWL:6824 6 WP-3285-2013 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: SUNEEL DUBEY Signing time: 24-02-2026 11:14:04NEUTRAL CITATION NO. 2026:MPHC-GWL:6824 7 WP-3285-2013
10. Wrong pay fixation was carried out from 04/02/1992 to December, 2004 & petitioner had not furnished undertaking while fixation on 04/02/1992 (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. 04/02/1992, the petitioner would be entitled to the benefit of the dictum of Apex Court in the case of Rafiq Masih (White Washer) (supra) . Undertaking was furnished by petitioner after his retirement & he did not furnish any undertaking at the time of extending the benefits of pay to him i.e. 04/02/1992. Thus, it is clear that undertaking was furnished by petitioner at the time of retirement and he did not furnish any undertaking at the time of extending the benefit of pay to him. The undertaking furnished by petitioner at the time of his retirement cannot be said to be an undertaking for which recovery of excess payment which has been made long back would become effective. The said undertaking would not benefit the respondents and the recovery being made from the petitioner is consequently illegal
11. Petitioner stood retired on 31/01/2007. Recovery pertains to the period from 04/02/1992 to December, 2004 and it was initiated without giving any show- cause notice to him or an opportunity of being heard. Furthermore, petitioner- employee was a Class III employee. 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.65,771/- to petitioner. The respondents shall pay interest @ 6% per annum on Rs.65,771/- 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 Signature Not Verified Signed by: SUNEEL DUBEY Signing time: 24-02-2026 11:14:04 NEUTRAL CITATION NO. 2026:MPHC-GWL:6824 8 WP-3285-2013 90 days from the date of submission of certified copy of this order.
13. The petition is, accordingly, disposed of.
(ANAND SINGH BAHRAWAT) JUDGE (SD) Signature Not Verified Signed by: SUNEEL DUBEY Signing time: 24-02-2026 11:14:04