Madhya Pradesh High Court
Brajesh Kumar Sharma (Brajesh Sharma) ... vs The State Of Madhya Pradesh on 18 February, 2026
NEUTRAL CITATION NO. 2026:MPHC-GWL:6198
1 WP-18932-2020
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
ON THE 18th OF FEBRUARY, 2026
WRIT PETITION No. 18932 of 2020
BRAJESH KUMAR SHARMA (BRAJESH SHARMA) (DELETED)
THROUGH LRS (I) SMT GEETA SHARMA AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Niraj Shrivastava - Advocate for the petitioner.
Shri Sohit Mishra - Government Advocate for the respondents/State.
ORDER
This petition, under Article 226 of the Constitution of India, has been filed seeking the following reliefs:-
"(7.1) पट शनर क पट शन को वीकार करते हुये अिधक भुगतान क वसूली पये 13,97,916/-(तेरह लाख स ता वे हजार नो सौ सौलह पये) वसूली कये जाने के आदे श अने जर पी-1 सीर ज को िनर त/अपा त कर पूव म दान कये गये वेतनमान (वेतन वृ या) को गणना म लेकर पुनः वेतन िनधारण कये जाने के आदे श एवं िनदश र पो डे स वभागीय ािधका रय को दान कर पट शनर से उसके माह नव बर 2019 से िनर तर वसूल क जा रह ितमाह रािश पये 23,500/- हसाब से वसूल स पूण वसूलीर रािश याज स हत 30 दवस म वा पस दान कये जाने क कृ पा याय हत म कर।
(7.2) अ य उिचत रट, आदे श अथवा िनदश याय हत म पट शनर के प म जार करने क कृ पा कर, करण यय र पो डे स से दलाये जाने क कृ पा कर।"
2. It is submitted by learned counsel for petitioner that initially petitioner was appointed as Patwari in the year 1981. Petitioner was Signature Not Verified Signed by: MONIKA SHARMA Signing time: 2/20/2026 6:41:57 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:6198 2 WP-18932-2020 promoted as Revenue Inspector on 20.10.1997 and subsequently, he was promoted as Deputy Collector by order dated 22.03.2016. Petitioner stood retired on 30.04.2022. At the time of revision of pay in year 2019, service book was referred to the Joint Director, Treasury, Accounts, Vidisha, to check whether increment of wages and pay fixation was done as per Rules or not and as per their objection, petitioner was given excess payment for which he was not eligible. On that basis, recovery of Rs.13,97,916/- has been ordered.
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/Treasury Officer, respondent issued impugned order of recovery Annexure P-1, calculating recovery to the tune of Rs.13,97,916/-. Learned counsel for petitioner submits that petitioner stood retired from the post of Deputy Collector which is a Class II 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 01.01.2006 till the date of his retirement i.e. 31.10.2019, 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 Signature Not Verified Signed by: MONIKA SHARMA Signing time: 2/20/2026 6:41:57 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:6198 3 WP-18932-2020 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. It is further submitted by learned counsel for the respondent/State that he relied upon the judgment of Hon'ble Supreme Court in the case of Syed Abdul Qadir and Ors. Vs. State of Bihar and Ors. reported in 2009 SCC 3 475 and submits that the case of petitioner is not covered in which the recovery may be quashed. The Co-ordinate Bench has already dismissed the petition by order dated 28.02.2025 in W.P.No.11073/2020 (Dr. Nagendra Rishishwar Vs. The State of M.P. and Ors.). It is submitted that since the petitioner is a Class-II Officer and the recovery proceedings were initiated during his service tenure, the same cannot be quashed in view of the settled legal position. He also relied upon the judgment of Hon'ble Supreme Court in the case of High Court of Punjab and Haryana and Ors. Vs. Jagdev Singh reported in 2016 SCC 14 267 in which no relief can be extended in favour of the petitioner.
6. Considered the submissions put forth by learned counsel for the parties and perused the record.
7. 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: MONIKA SHARMA Signing time: 2/20/2026 6:41:57 PMNEUTRAL CITATION NO. 2026:MPHC-GWL:6198 4 WP-18932-2020 "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."
8. 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:Signature Not Verified Signed by: MONIKA SHARMA Signing time: 2/20/2026 6:41:57 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:6198 5 WP-18932-2020
(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."
9. 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 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."Signature Not Verified Signed by: MONIKA SHARMA Signing time: 2/20/2026 6:41:57 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:6198 6 WP-18932-2020
10. 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."
11. Wrong pay fixation was carried out from 01.04.2006 & petitioner had not furnished undertaking while fixation on 01.04.2006 (as there is no Signature Not Verified Signed by: MONIKA SHARMA Signing time: 2/20/2026 6:41:57 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:6198 7 WP-18932-2020 such undertaking appended in the record). In absence of any specific undertaking at the time of making payment of such amount i.e. 01.04.2006, 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. 01.04.2006. 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.
12. The case of Jagdev Singh (supra) is not applicable in the present case as in that case, the Government Officer was compulsory retired from services and recovery period is very short and recovery amount is very less but in the present case, facts are different. In that case, the petitioner knowing that any payment found to have been made in excess would be required to be refunded. The Officer/petitioner furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking but in the present case, no undertaking has been submitted by petitioner and in that case, recovery amount is of Rs.1,22,003/- but in the present case, recovery amount is Rs.13,97,916/-, therefore, that case is not applicable in the present case.
13. The case of Nagendra Rishishwar (supra) is not applicable in the Signature Not Verified Signed by: MONIKA SHARMA Signing time: 2/20/2026 6:41:57 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:6198 8 WP-18932-2020 present case as in that case, the excess payment was made after obtaining due undertaking from petitioner but in the present case, the petitioner is not given any undertaking, therefore, that case is not applicable in the present case.
14. In the case of Syed Abdul Qadir (supra) , if the employee had knowledge that the payment received was in excess of what was due or wrongly paid then recovery can be permissible but in the present case, the respondents had not proved that the original petitioner is already having knowledge about the excess payment and Government Advocate has not proved that the excess payment was wrongly paid to the petitioner and this fact is in the knowledge of the petitioner and as per the above judgment, the recovery may be permitted when the wrong pay fixation detected or corrected within a short time of wrong payment but in the present case, the wrong pay fixation has been carried out from 01.04.2006 to 24.04.1990. Therefore, in the present case, the excess payment has made to the petitioner for a period of near about 13 years, therefore, the recovery is liable to be quashed.
15. The Hon'ble Apex Court in the case of M.P. Medical Officers Association Vs. State of M.P. and Ors . reported in AIR 2022 SC 4009 , held as under:-
"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 Signature Not Verified Signed by: MONIKA SHARMA Signing time: 2/20/2026 6:41:57 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:6198 9 WP-18932-2020 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 v. Rafiq Masih, (2015) 4 SCC 334: (AIR 2015 SC 696) 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 along with interest is hereby quashed and set 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."
16. 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 Supreme Court stated 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:Signature Not Verified Signed by: MONIKA SHARMA Signing time: 2/20/2026 6:41:57 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:6198 10 WP-18932-2020
(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."
17. 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 employee has retired or is due to retire within one year of the order of recovery or where the recovery is being made of 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 01.04.2006 to 24.04.2019.
18. Thus, the submission of Government Advocate that recovery from petitioner could be affected since he was not a class III or Class IV employee, has no merit. His case squarely falls in Clause (iii) aforesaid, since the recovery was made after 13 years and it related to a period well in excess of five years.
19. Given the above facts, as the original petitioner had already Signature Not Verified Signed by: MONIKA SHARMA Signing time: 2/20/2026 6:41:57 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:6198 11 WP-18932-2020 superannuated and expired on 13.08.2025 and in fact, no show cause notice seeking such recovery was ever sent to the petitioner, recovery made form him was not justified. Petitioner being Class-II seems to be covered under Clause III of the case of Rafiq Masih (White Washer) (supra).
20. Petitioner stood retired on 30.04.2022. During the pendency of the petition, original petitioner has expired on 13.08.2025, widow of original petitioner has been substituted as an LR and she is being contesting the present petitioner. After the death of original petitioner, family pension is being given to the widow/present petitioner and if recovery of Rs.13,97,916/- will be made from family pension and it will create great hardship to the widow/present petitioner. Recovery pertains to the period from 01.04.2006 to 24.04.2019 and it was initiated without giving any show cause notice to him or an opportunity of being heard. 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. 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, Signature Not Verified Signed by: MONIKA SHARMA Signing time: 2/20/2026 6:41:57 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:6198 12 WP-18932-2020 recovery can not be affected.
21. 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.13,97,916/- to petitioner. The respondents shall pay interest @ 6% per annum on Rs.13,97,916/- w.e.f. the date of recovery till actual payment.
22. 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.
23. The petition is, accordingly, disposed of.
(ANAND SINGH BAHRAWAT) JUDGE Monika Signature Not Verified Signed by: MONIKA SHARMA Signing time: 2/20/2026 6:41:57 PM