Madhya Pradesh High Court
Babu Singh vs The State Of Madhya Pradesh on 16 July, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 16th OF JULY, 2024
WRIT PETITION No. 6295 of 2022
BABU SINGH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Alok Kumar Sharma - Advocate for the petitioner.
Shri S.S. Kushwah - Government Advocate for the respondent/State.
ORDER
Instant petition under Article 226 of the Constitution of India is directed against the order dated 28.7.2021, whereby wrong pay fixation has been done in the matter of the petitioner and certain benefits which had accrued to the petitioner in the year 1996 by way of increments has been withdrawn which had resulted in excess payment to the petitioner and in lieu thereof an order dated 29.12.2021 Annexure P/2 was passed whereby recovery of sum of Rs.1,89,424/- as principal amount and Rs.1,40,805/- as interest over the amount alleged to be paid in excess to the petitioner due to earlier pay fixation thus a total of Rs.3,30,229/- is sanctioned for recovery from the dues of the petitioner.
Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 22. Petitioner is further aggrieved by the directions issued by the respondents for recovery of sum of Rs.67320/- towards unauthorized absence/leave period.
3. Short facts of the case looking to the controversy are that the petitioner who was initially appointed on the post of Constable w.e.f.
13.08.1983 in the pay scale Rs. 515-800. After implementation of the 5"
Central Pay Commission pay scale, the pay of petitioner was fixed on 01.01.1996 at Rs. 3875/-. First Kramonnati benefit was granted to him w.e.f. 19.04.1999 as per the prevailing policy of Kramonnati of State Government and thereafter on completion of 24 years of service w.e.f.
13.08.2007 benefit of second krammonati was extended to the petitioner, however, after implementation of 6"CPC Pay Scales w.e.f. 01.01.2006 and introduction of policy of Time Scale of Pay w.e.f. 01.04.2006, pay fixation of petitioner was revised and he was extended the benefit of 2nd Time Scale w.e.f. 01.04.2006 fixing his pay in the scale of Rs. 5200-20200 + 2800 GP.
4. Thereafter the petitioner was promoted as Head Constable w.e.f.18.06.2013 but no financial benefit, not even fixation under FR-22D was granted at the time of promotion, though petitioner was entitled for the same as the post-of Head Constable carries duties and responsibilities of greater importance than the post of Constable. Petitioner was sanctioned 3rd Time Scale benefit w.e.f. 01.07.2014 which should have been in the Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 3 PB-2 pay scale of Rs. 9300-34800 +GP 3200, but initially the petitioner was extended the benefit wrongly in the pay scale of Rs.5200- 20200+3200 and his pay in the pay band was incorrectly fixed at Rs.13290+3200 whereas there is no stage of Rs.13290 in Pay Band-2 in Table No. 8 of M.P. Revision of Pay Rules,- 2009.
5. The petitioner suffered from paralytic attack in June 2020 and had to undergo treatment for the same, considering his adverse health condition, he sought voluntary retirement and after acceptance of his application, he was voluntarily retired w.e.f. 31.10.2021, but when the service book of petitioner was sent for verification before respondent No.4, an objection was raised and consequently pay fixation of petitioner was revised vide order dated 28.07.2021, as there was an apparent error in the revised pay fixation, as the increment was wrongly calculated on 01.07.2014 excluding Grade Pay whereas as per Rule 8 of Revision of Pay Rules, 2009, the annual increment is to be calculated @ 3% of Pay in Pay band + Grade Pay, thus, it was alleged that the said pay fixation was not in accordance with law. Further though the petitioner was entitled for two initial increments after second and third time scale on 1.7.2006 and 1.7.2014 one in the lower pay scale and one in the upper pay scale consequent to Time Scale Benefit as per the clarification of the Madhya Pradesh Revision of Pay Rules, 2009 issued by the State Government dated 25.5.2009, was not extended, thus, it was averred that the said pay Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 4 fixation and consequent recovery in lieu of the erroneous pay fixation was illegal.
6. Since before revised pay fixation and recovery no opportunity of hearing was afforded to the petitioner, thus, alleging the said order to be in-violation of principle of natural justice and the directions of the Hon'ble Apex Court as laid down in the matter of Union of India Vs. P.N. Natarajan, (2010) 2 SCC 405 it was contended that retiral benefits payable to the petitioner could not have been revised to their dis-
advantage without giving them action-oriented notice and opportunity of hearing as they had acquired a valuable right to accordingly receive the financial benefits and the same could not have been reduced without complying with one of the basic rule of natural justice that no one shall be condemned unheard. Alleging the said revised pay fixation and recovery in pursuance thereof to be illegal and arbitrary, the present petition has been filed.
7. Learned counsel for the petitioner while placing reliance in the matter of State of Punjab Vs. Rafiq Masih, (2015) 4 SCC 334 contended that the petitioner who was Class III employee (Constable) at the time of his retirement was saddled with the liability of recovery of sum of Rs.1,89,424/- much after his retirement is highly impermissible on three counts; firstly since as per the dictum of the Apex Court recovery from employees belonging to Class III and Class IV service (or Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 5 Group C and Group D service) are impermissible and secondly recovery from retired employees is also impermissible and thirdly the recovery of an excess payment made for a period in excess of five years before the order of recovery issued is also not permissible.
8. With regard to the undertaking given by the petitioner at the time of his pay fixation in the year 1996 while placing reliance in the matter of Full Bench decision of this Court in the matter of State of Madhya Pradesh and others Vs. Jagdish Prasad Dubey ( Writ Appeal No.815 of 2017 decided on 6.3.2024) it is contended that the Full Bench while deciding the issue no.3 of the reference had held that any undertaking given by the employee at the time of grant of financial benefits on account of refixation of pay was 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) since the undertaking was not given voluntarily. Further reliance was placed upon the decision given by the Division Bench of this Court in Writ Appeal No.1232/2017 (State of M.P. and others Vs. Chandra Shekhar Prasad Singh) and was contended that the undertaking given by the employee at the time of grant of financial benefits of pay fixation can be said to be unconscionable writing obtained by the State, therefore, the said undertaking would be a forced undertaking and cannot be said to be voluntary act of the employee.Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 6
9. He has also placed reliance in the matter of Vijay Shankar Trivedi Vs. State of M.P. and others (W.P.No.2395/2017 decided on 17.1.2018) wherein the Coordinate Bench of this Court while referring to the judgment of the Apex Court in the matter of High Court of Punjab and Haryana and others Vs. Jagdev Singh, reported in (2016) 14 SCC 267 and in the matter of State of Madhya Pradesh and others Vs. Chandrashwar Prasad Singh (W.A.No.1232/2017 decided 15.12.2017) had taken a view that the undertaking which has been discussed in the matter of Jagdev Singh was with regard to Class I employee and the case of Class III and Class IV employee were not considered in the aforesaid judgment, therefore, in the case of Class III and Class IV the said judgment would not be applicable as well as the judgment of Jagdev Singh (supra) is a judgment on proposition no. (ii) of the judgment of Rafiq Masih (supra) and proposition No. (ii) deals with the recovery from retired Government employees or the employees who are due to retire within one year from the order of recovery, and therefore, would not apply in the case of Group C and Group D employees and in the light of the judgment passed by the Division Bench in the case of High Court of Rajasthan, Jodhpur in Civil Special Appeal (W) No.349/2014 (Mohammed Yusuf Vs. Maharana Pratap Agriculture & Technology and another) decided on 24.11.2016 had held that even though there was an undertaking given by Class III employee the same was not to be considered in the light of the judgment Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 7 of Jagdev Singh (supra) as the said judgment was distinguishable on facts and he has further placed reliance in the matter of M.P. Medical Officers Association Vs. State of M.P. and others, 2023 1 JLJ 118, where the Apex Court had taken a view that when the employees are not at fault at the time of pay fixation then the recovery should not be initiated against him and in the light of judgment in the matter of Rafiq Masih (supra) the Apex Court had quashed the recovery for Class III employee.
He has also placed reliance in the matter of Ramnarayan Sharma Vs. State of M.P. and others, 2017 2 JLJ 55, wherein Rule 65 of M.P. Civil Services (Pension) Rules, 1976 was discussed and it was held that if recovery is not initiated then a period of six months from the date of retirement then only recourse left to a State is to file a civil suit for recovery before the Court of competent civil jurisdiction.
10. Lastly Shri Sharma has placed reliance in the matter of D.S. Tiwari Vs. State of M.P. and others (W.P.No.14978 of 2012 decided on 5.10.2017) and had submitted that even at the time of revision of pay or pension payable to an employee if the action-oriented notice and opportunity of show cause is not given to him, the said revision of pay as well as pension/retirement benefits would be nullity. On the basis of aforesaid arguments it was submitted that the recovery as well as pay fixation of the petitioner done without extending him benefit were perse illegal, and therefore, deserves to be quashed and in furtherance thereof Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 8 suitable direction are required to be issued to the respondents to refix the pension of the petitioner after extending the benefit under FR 22D and all other benefits which the petitioner is entitled.
11. On the other hand Shri Kushwaha, learned Government Advocate had submitted that admittedly in the year 1996 at the time of revision of pay, an undertaking was given by the petitioner, which was a voluntarily undertaking and from the very language of undertaking it cannot be said that it was given under some coercion or pressure, therefore, in the light of the judgment of Jagdev Singh when voluntarily undertaking has been given by an employee the recovery can be initiated.
He had further referred to Full Bench decision of this Court in the matter of State of M.P. Vs. Jagdish Prasad Dubey (supra) and while taking this Court to the answer given to the question no.3 has submitted that though the Full Bench in specific terms has held that undertaking given by an employee at the time of grant of financial benefits on account of refixation of pay is a forced undertaking and is therefore not enforceable, the Full Bench had further observed that said eventuality shall not be applicable if the undertaking is given voluntarily and as the petitioner could not demonstrate that the undertaking given by him at the time of his pay fixation in the year 1996 was under coercion it cannot be said that in the light of the judgment which has been cited it was not voluntarily, thus, the contention of the petitioner in this regard cannot be accepted.
Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 912. With regard to the fixation of pay it was further argued that at the time of fixation of the salary in the year 1996 while granting the benefit of Vth Pay Scale in place of Rs.3725/- department had wrongly granted Rs.3875/- to the petitioner and thereafter all the subsequent increments and benefits were calculated over wrong pay of the petitioner wherein the effect of various orders passed as per LR 24 were ignored and hence while doing refixation vide order Annexure P/1 dated 28.7.2021 all said mistakes were noticed and corrected.
13. It was further submitted that as an effect of OB No.553/17.12.1998 from 7.12.1998 Senior Constable status was granted to the petitioner and benefit of one increment was also granted to him while doing the refixation. It was further argued that thereafter the benefit of first krammonati was granted to the petitioner from 19.4.1999 and thereafter as per OB No.1086/24.12.2011 benefit of second time scale of pay in grade pay of Rs.2800 was granted to him w.e.f. 1.4.2006 and thereafter as per OB No.132/4.2.2015 benefit of third time scale of pay at Rs.3200/- was granted w.e.f. 1.7.2014 and thereafter from 1.1.2006 benefit of 6th Pay Commission was granted and after calculating various heads recovery amount of Rs.2,09,994/- was found to be recovered and adjusted and remaining amount of Rs.1,20,285/- + Rs.67320/- = Rs.1,87,605/- is required to be recovered from the petitioner including interest over excess payment amount.
Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 1014. It was thus argued that re-fixation of the petitioner was done as per his entitlement, therefore, no illegality can be said to have been committed by the respondents in refixation done. Thus, the contention of the petitioner in this regard is also baseless.
15. Heard the counsel for the parties and perused the record.
16. The issue with regard to recovery from a retired person has been discussed at length by the Coordinate Bench of this Court in the matter of Vijay Shankar Trivedi Vs. The State of M.P. & Ors. (W.P. No.2395/2017) on 17.01.2018, wherein it has been held as under:-
5. After having heard learned counsel for both the parties and on perusal of the facts of the case, the moot questions arise for consideration are;
(I) Whether recovery from the petitioner, since retired, can be made vide Annexure R-1 in lieu of undertaking furnished by him as per Annexure R-2?
(II) Whether Rule 65 of the Pension Rules would be applicable to the retired Government employee, however, the stand taken by the State Government is justified?
6. The issue regarding recovery from the employee either in service or after attaining the age of superannuation, came for consideration before the Supreme Court in the case of Rafiq Masih (supra) wherein the Apex Court in Para-12 has postulated certain categories and observed that the recovery from them is impermissible. Para-12 is relevant, however, it is reproduced as thus:-
"12. 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 Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 11 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."
7. The judgment of Rafiq Masih (supra) came for consideration in the judgment of Jagdev Singh (supra) wherein the Supreme Court in Para-10 after referring five categories, in which recovery was held to be impermissible in the case of Rafiq Masih (supra), referring Clause (ii) in Para-11 and 12 has held as under:-
"11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.
12. For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 12 we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years."
8. After the judgment of Jagdev Singh (supra), the issue came for consideration before the Division Bench of the High Court of Rajasthan in Mohdmmed Yusuf (supra) wherein the Division Bench has held as under:-
"In the case in hand it is not disputed that the fixation impugned were made atleast 10 years earlier i.e. from the date the respondent University pass an order to effect recovery. It is also the position admitted that the appellants prior to their retirement were in employment of the University on the post of Technician/Junior Mechanic, the posts is Group-C cadre and the appellants stood retired from service much back in the year 2002. So far as the issue with regard to undertaking given by them is concerned, that cannot be equated with the undertaking given by the Officer whose case was dealt with by the Hon'ble Apex Court in the State of Punjab & Haryana & Ors. (supra). In the case aforesaid, the person concerned was a Civil Judge (Junior Division) and further the undertaking given by him was in quite specific terms that any payment found to have been made in excess would be liable to be adjusted and further that fixation of the refund made was to be used for adjustment of excess payment, if any given.
In the instant matter, the undertaking said to be given is in a proforma that simply mentions for refund of over payments, if any made, on account of incorrect fixation. The undertaking is a part of proforma and it is well known that the persons belonging to lower posts put signatures on such undertaking without application of mind.
In these circumstances, we are of the considered opinion that cases of the present appellants are required to be dealt with in accordance with law laid down by the Apex Court in the case of Rafiq Masih (supra).Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 13
The appeals are accordingly allowed. The judgment impugned dated 24.2.2004 passed by the learned Single Bench is set aside. The writ petitions preferred by the petitioners are allowed to the extent that the respondent University shall not effect any recovery from pay/pensionary benefits/post retiral benefits or otherwise from them on account of the amount said to be paid in excess while awarding selection grades or making pay fixation.
9. In the said judgment the Court distinguished the judgment of Jagdev Singh (supra) on the pretext that if a person belong to Group C retired from the service and given his undertaking, which cannot be equated with the undertaking given by the Civil Judge (Junior Division), which was dealt with in the case of Jagdev Singh (supra). It was further held that the undertaking is not specific to the recovery, however, it cannot be relied upon. Thus relying upon the judgment of Rafiq Masih (supra) and setting aside the order passed by learned Single Judge, the recovery was quashed.
10. The Division Bench judgment of High Court of Rajasthan in Mohammed Yusuf (supra) has been considered by co-ordinate Bench of this Court in Kapsi Bai (supra) wherein the defence taken by the State Government regarding undertaking given by the employee was negatived and the recovery was quashed.
11. The issue regarding recovery from a retired employee also came for consideration in the case of Om Prakash Verma Vs. State of M.P. & others reported in 2017(3) MPLJ 175 whereby the Single Bench of this Court quashed the recovery distinguishing the judgment of Jagdev Singh (supra) stating that the said judgment only deals proposition No. (ii) of the judgment of Rafiq Masih (supra) and do not apply for other propositions particularly to the case of Group-C and Group-D employees.
12. The Division Bench of this Court in The State of Madhya Pradesh & others Versus Chandrashwar Prasad Singh (supra) vide order dated 15.12.2017 has considered the same arguments advanced on behalf of the State Government relying Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 14 upon the judgment of Jagdev Singh (supra) and the Court held as under:-
We find that the said judgment relied upon by learned counsel for the State has no applicability in the facts of the present case as the undertaking itself is unconscionable writing obtained by the State. The employee has no option but to submit undertaking to avail the benefit of pay-fixation. In a judgment of the Supreme Court reported as (1986) 3 SCC 136 (Central Inland Water Transport Corporation Limited and Another v. Brojo Nath Ganguly and Another), a condition in the appointment letter that the Corporation could terminate the services of the employees without prior notice if it was satisfied that the employee was unfit medically or was guilty of any subordination in respect of other misconduct, was found to be illegal. The Supreme Court held as under:-
"68. We now turn to the second question which falls for determination in these Appeals, namely, whether an unconscionable term in a contract of employment entered into with the Corporation, which is "the State" within the meaning of the expression in Article 12, is void as being violative of Article 14. What is challenged under this head is clause (i) of Rule 9 of the said Rules. This challenge levelled by the Respondent in each of these two Appeals succeeded in the High Court.
xxx xxx
78. Legislation has also interfered in many cases to prevent one party to a contract from taking undue or unfair advantage of the other. Instances of this type of legislation are usury laws, debt relief laws and laws regulating the hours of work and conditions of service of workmen and their unfair discharge from service, and control orders directing a party to sell a particular essential commodity to another.
xxx xxx
93. The normal rule of Common Law has been that a party who seeks to enforce an agreement which is opposed to public policy will be non-suited. The case of A. Schroeder Music Publishing Co. Ltd. v. Macaulay [(1974) 1 WLR 1308], Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 15 however, establishes that where a contract is vitiated as being contrary to public policy, the party adversely affected by it can sue to have it declared void. The case may be different where the purpose of the contract is illegal or immoral. In Kedar Nath Motani and others v. Prahlad Rai and others, [1960] 1 S.C.R. 861 reversing the High Court and restoring the decree passed by the trial court declaring the appellants' title to the lands in suit and directing the respondents who were the appellants' benamidars to restore possession, this Court, after discussing the English and Indian law on the subject, said (at page 873):
"The correct position in law, in our opinion, is that what one has to see is whether the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. If the illegality be trivial or venial, as stated by Willistone and the plaintiff is not required to rest his case upon that illegality, then public policy demands that the defendant should not be allowed to take advantage of the position. A strict view, of course, must be taken of the plaintiff's conduct, and he should not be allowed to circumvent the illegality by restoring to some subterfuge or by mis-stating the facts. If, however, the matter is clear and the illegality is not required to be pleaded or proved as part of the cause of action and the plaintiff recanted before the illegal purpose was achieved, then, unless it be of such a gross nature as to outrage the conscience of the Court, the plea of the defendant should not prevail."
The types of contracts to which the principle formulated by us above applies are not contracts which are tainted with illegality but are contracts which contain terms which are so unfair and unreasonable that they shock the conscience of the court. They are opposed to public policy and require to be adjudged void." In view of the aforesaid judgment, we find that since the employee has no option but to give undertaking so as to avail the benefit of pay fixation, it cannot be said to be voluntary act thus, such undertaking cannot be made basis for sustaining the recovery of Rs.87,354/-.
13. The said judgment has again been relied upon in the case of Phoolchand Patel (supra) by the Co-ordinate Bench of this Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 16 Court quashing the order of recovery directed against the petitioner.
14. In view of the foregoing discussion, the legal position which can be culled out is that the judgment of Jagdav Singh (supra) is a judgment on proposition No. (ii) of the judgment of Rafiq Masih (supra). Proposition No. (ii) deals the recovery from retired Government employees or the employees who are due to retire within one year from the order of recovery. The Division Bench of the High Court of Rajasthan in Mohammed Yusuf (supra) distinguished the ratio of the judgment of Jagdev Singh (supra) on facts reiterated in the undertaking, if any, given by the Civil Judge, as was the case before the Supreme Court, would not apply in the case of Group-C employees, while Division Bench of this Court in the case of Chandrashwar Prasad Singh (supra) distinguished the same taking a view that if any undertaking has been obtained from an employee at the time of availing the benefit of pay fixation, it cannot be said to be voluntary act on his part because the said employee was having no option except to give such undertaking, it cannot be made the basis for sustaining the recovery. Though the Single Bench in the case of Om Prakash (supra) distinguished the judgment of Jagdev Singh (supra) on the pretext that the petitioner is a Class III employee but in the case at hand though the petitioner was a Class III employee now retired, therefore, this Court merely referred the said judgment to accept the analogy as taken by the High Court of Rajasthan in the case of Mohammed Yusuf (supra) as well as by this Court in the case of in the case of Chandrashwar Prasad Singh (supra).
15. Looking to the aforesaid legal position, it is necessary to analize the facts of the present case. On perusal, it reveals that the State Government vide order dated 5.11.2016 said that the petitioner is not entitled for the pay scale which was allowed to him from the initial date of appointment, therefore, recovery to the tune of Rs.23,43,433/- along with the interest has been ordered vide order Annexure P-6 dated 23.11.2016. The undertakings which are brought on record relates to fixation of pay at the time of pay revision; first undertaking was submitted on 21.4.1987 and subsequent undertaking is undated. Its language indicates that the benefit of revision of pay extended to the petitioner is provisional and at the time of Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 17 its finalization, excess amount may be returned back or may be deducted from him. However, looking to the said fact the analogy drawn by Division Bench of this Court in the case of Chandrashwar Prasad Singh (supra) aptly applies to the facts of this case because the said undertaking was obtained from the petitioner at the time of extending the benefit of pay revision and such act of the petitioner cannot be said to be voluntary act. In view of the said discussion distinguishing the judgment of Jagdev Singh (supra), and applying the ratio of Rafiq Masih (supra) the order of recovery Annexure P-6 dated 23.11.2017 is hereby quashed.
16. Now reverting to question No. 2 whether Rule 65 of the Pension Rules would be applicable to the retired Government employee? In this regard, the stand taken by the State Government is that, it would apply to the retired employee, however, recovery can be made from him. To advert the said contention, the language engrafted in Rule 65 of the Pension Rules is relevant, however, it is reproduced as thus:-
65. Recovery and adjustment of Government dues.- (1) It shall be the duty of every retiring Government servant to clear all Government dues before the date of his retirement.
(2) Where a retiring Government servant does not clear the Government dues and such dues are ascertainable.- (a) an equivalent cash deposit may be taken from him; or (b) out of the gratuity payable to him, his nominee or legal heir, an amount equal to that recoverable on account of ascertainable Government dues shall be deducted. Explanation.-1. The expression "ascertainable Government dues" includes balance of house building or conveyance advance, arrears of rent and other charges pertaining to occupation of Government accommodation, over-payment of pay and allowances and arrears of income -tax deductible at source under the Income-tax Act, 1961 (No. 43 of 1961).
17. On perusal of the aforesaid, it is clear that sub-rule (1) specifies the dues of "retiring" Government servant while sub-rule (2) deals the deposit or deduction from the gratuity payable to "retiring" Government servant, therefore, Rule 65 deals the contingency casting the duty on the "retiring" Government servant as well as on the Government, it is Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 18 nothing to do with the "retired" Government servant. It do not postulate the contingency which may be made applicable after retirement of the employee.
18. Learned Government Advocate made an attempt referring Rule 66 (3)(a) of the Pension Rules to contend that the words "retiring employee" would be deemed to be continued even after retirement upto the period of six months. After going through the entire Rule 66, it can safely be held that Rule 66(3)(a), (b) and (c) applies to deal with a situation, after retirement of the Government employee. In case the formalities as specified in Rule 66(1) (a) and (b) and Rule 66 (2)(a), (b) and (c) has been observed by the Government then what would be the validity period of the undertaking and effect of the amount so deposited by such employee for the purpose of recovery of Government dues, if any from him, otherwise as per sub-rule (4), the legal procedure which is permissible under the law can be taken. In view of the foregoing discussion repelling the argument of of learned Government Advocate, the questions posed for answers hereinabove are decided in favour of the petitioner and against the State Government.
19. Accordingly, the inescapable conclusion which can be arrived at in the present case is the order of recovery Annexure P-6 dated 23.11.2016 issued by the Government is hereby quashed. In consequence, this petition succeeds and is hereby allowed. In the facts and circumstances of the case, parties are directed to bear their own costs.
17. A Full Bench of this Court in the matter of The State of M.P. & ors. Vs. Jagdish Prasad Dubey W.A. No.815/2017 vide order dated 06.03.2024 while answering a reference for the following issues had held as under:-
"Thus, there is a divergent view of different Benches of this Court. Therefore, to resolve the conflict, we refer the matter to Larger Bench to consider the following questions:Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 19
1. Whether the recovery can be ordered to be affected from the pensionary benefits or from the salary in view of an undertaking or Indemnity Bond taken by the employer before the grant of benefit of pay refixation.
2. Whether the recovery on account of excess payment to an employee can be made in exercise of power conferred under Rule 65 of M.P Civil Services Pension Rules, 1976.
3. Whether the undertaking sought at the time of grant of financial benefits on account of refixation of pay is a forced undertaking and thus not enforceable in light of judgment of Supreme Court in (1986) 3 SCC 136 (Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another).
Answers to the questions referred
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. Conversely an 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.
Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 20(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.
18. From the aforesaid enunciation, the legal position which is culled out is that recovery from pensionary benefits can be effected on the basis of undertaking or the indemnity bond given by the employee before the grant of benefit of pay refixation but before that 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 & Ors vs State Of Bihar & Ors reported in (2009) 3 SCC 475 and also the time period as fixed in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 334 is required to be followed. Further it is also to be reckoned as to whether 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 if it is whether it could be enforceable in the light of the judgment of the Hon'ble Supreme Court in the case of Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another reported in (1986) 3 SCC 156?
19. In the present case, the recovery has been initiated by the State alleging that at the time of implementation of 5th Central Pay Commissioner, the petitioner was entitled for pay-scale of Rs.3,725/- but it was wrongly fixed at Rs.3,875/- and accordingly, benefits of 1st, 2nd and 3rd Karammonati which were accrued and thereafter, w.e.f. 1.1.2006, the benefit of 6th Pay Commission, was granted to the petitioner which due to wrong pay fixation carried an amount which was not payable to the Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 21 petitioner, hence was recoverable. The recovery so initiated would be justified in the light of the judgment of Hon'ble Apex Court rendered in the case of High Court of Punjab & Haryana & others Vs. Jagdev Singh reported in (2016) 14 SCC 267 if an undertaking is given by the petitioner at the time of his pay-fixation as well as grant of increments which are appended alongwith the reply as Annexure R/3 Colly.
20. Though from the undertakings so appended at the first instance, it appears that the recovery which has been initiated against the petitioner is justified but when the said undertakings are perused minutely, it could be seen that firstly, no date has been mentioned, on which the said undertakings were given by the petitioner and secondly, it appears that the said undertaking is an unconscionable writing obtained by the State as the employee has no option but to submit undertaking to avail the benefit of pay-fixation. In a judgment of the Supreme Court reported as (1986) 3 SCC 136 (Central Inland Water Transport Corporation Limited and Another v. Brojo Nath Ganguly and Another), a condition in the appointment letter that the Corporation could terminate the services of the employees without prior notice if it was satisfied that the employee was unfit medically or was guilty of any subordination in respect of other misconduct, was found to be illegal. The Supreme Court held as under:-
"68. We now turn to the second question which falls for determination in these Appeals, namely, whether an unconscionable term in a contract of employment entered into with the Corporation, which is "the State" within the meaning of the expression in Article 12, is void as being violative of Article 14. What is challenged under this head is clause (i) of Rule 9 of the said Rules. This challenge levelled by the Respondent in each of these two Appeals succeeded in the High Court.Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 22
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78. Legislation has also interfered in many cases to prevent one party to a contract from taking undue or unfair advantage of the other. Instances of this type of legislation are usury laws, debt relief laws and laws regulating the hours of work and conditions of service of workmen and their unfair discharge from service, and control orders directing a party to sell a particular essential commodity to another.
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93. The normal rule of Common Law has been that a party who seeks to enforce an agreement which is opposed to public policy will be non- suited. The case of A. Schroeder Music Publishing Co. Ltd. v. Macaulay [(1974) 1 WLR 1308], however, establishes that where a contract is vitiated as being contrary to public policy, the party adversely affected by it can sue to have it declared void. The case may be different where the purpose of the contract is illegal or immoral. In Kedar Nath Motani and others v. Prahlad Rai and others, [1960] 1 S.C.R. 861 reversing the High Court and restoring the decree passed by the trial court declaring the appellants' title to the lands in suit and directing the respondents who were the appellants' benamidars to restore possession, this Court, after discussing the English and Indian law on the subject, said (at page 873):
"The correct position in law, in our opinion, is that what one has to see is whether the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. If the illegality be trivial or venial, as stated by Willistone and the Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 23 plaintiff is not required to rest his case upon that illegality, then public policy demands that the defendant should not be allowed to take advantage of the position. A strict view, of course, must be taken of the plaintiff's conduct, and he should not be allowed to circumvent the illegality by restoring to some subterfuge or by mis-
stating the facts. If, however, the matter is clear and the illegality is not required to be pleaded or proved as part of the cause of action and the plaintiff recanted before the illegal purpose was 4 achieved, then, unless it be of such a gross nature as to outrage the conscience of the Court, the plea of the defendant should not prevail."
The types of contracts to which the principle formulated by us above applies are not contracts which are tainted with illegality but are contracts which contain terms which are so unfair and unreasonable that they shock the conscience of the court. They are opposed to public policy and require to be adjudged void."
21. In view of the aforesaid judgment, this Court finds that the undertakings given by the employee at the time of re-fixation of his pay scale was not a voluntary act rather he had no option but to give undertaking so as to avail the benefit of pay-fixation, thus, the aforesaid undertaking cannot be made basis for sustaining the recovery.
22. So far as the relief with regard to correction of the revised pay fixation by granting the benefit of annual increments, FR 22-D at the time of promotion and other admissible benefits to the petitioner by removing the anomaly in the revised pay fixation is concerned, the aforesaid issue has already been decided by the Coordinate Bench of this Court in W.P. Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 24 No.12008 of 2012 Vyanktesh Sharde Vs. State of M.P. & ors. vide order dated 29.01.2024 wherein in Para 7 and 8, it has been held as under:-
7. The aforesaid issue has already been decided by the Division Bench judgment of this Court in the matter of Dayaram Patidar (supra) by holding that :
"14. On merits also this petition must fall. An employee on promotion from a lower post to higher post is entitled to get his pay fixed in the pay scale of higher post as per FR.22-D. This rule gives him weightage of a few increments. It is true, that the respondent employee was already getting the pay scale of his new post even before promotion. But that would not disentitle him to the benefit under FR.22D. This rule speaks of promotion from lower post to higher post not from one scale to another. Scale of pay is irrelevant in the matter of application of FR.22-D, which confers some financial benefit to the employee on promotion which is logical also. So even when the respondent was getting same salary while working on lower post, the benefit of FR.22-D to which he is otherwise entitled on promotion, cannot be denied to him.
15. Petitioners' contention that Respondent's pay fixation has been done under FR.22(a) (ii) which was financially more beneficial to him, is, not acceptable to this Court. If factually that is the position then petitioners are not going to be put to any financial loss, even, if, they are required to give benefit of FR.22-D to the Respondent. Thus, this ground is negatived on petitioners' own admission made before the Tribunal in their reply. It has already been held by a Bench of this Court that circular of the Finance Department shall not be binding on the Respondent, as Respondent has to be given benefit from the date he assumes charge on the promoted post and financial sanction has no role to play in it."Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 25
8. It is also noticed that by the same order dated 30/12/2002 another LDT namely Devisingh was promoted in the pay scale of 5000-8000 as UDT along with the petitioner and in the case of Devisingh (supra) also the similar order of recovery dated 20th March, 2010 on the same ground was passed and the WP No.5076/2010(S) filed by Devisingh (supra) has been allowed by this Court by holding that:-
"The petitioner before this Court has filed this present writ petition being aggrieved by the order dt. 20/3/10 by which the respondents have revised the pay fixation of the petitioner and the earlier benefit of pay fixation by applying FR 22D have been withdrawn. The contention of the petitioner is that he was promoted from the post of LDT to UDT in the same pay scale and the benefit of FR 22D was conferred upon him on account of his promotion vide order dt.31/12/02. The contention of the petitioner is that the benefit of FR 22 D was rightly conferred upon him by the respondents keeping in view the judgment delivered by this court in the case of State of MP Vs. Dayaram Patidar and one another WP No.1104/2001 dt.4/10/02 . This Court has carefully gone through the aforesaid judgment and the same reveals that in case of promotion from LDT to UDT the benefit of FR22D has to be extended as the post of UDT involves higher responsibility and higher duties and therefore the respondents were justified in initially granting the benefit of FR22D to the petitioner and the same has erroneously been withdrawn by the impugned order dt.20/3/10 hence the same deserves to be quashed in the light of the judgment delivered in the case of Dayaram (supra). This Court has carefully gone through the judgment delivered in the case of Dayaram Patidar(supra) and is of the considered opinion that the petitioner is certainly entitled for grant of benefit under FR 22 D he was promoted to a post carrying higher responsibilities.Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM 26
Resultantly, this petition is allowed. Impugned order dt.20/3/10 is hereby quashed. Any amount recovered by the respondents be refunded to the petitioner within a period of 90 days from the date of receipt of the certified copy of this order and the petitioner shall certainly be entitled for all benefits by virtue of pay fixation by the respondents in the year 2002 by granting him the benefit of FR 22D. This petition is allowed. No order as to costs."
23. In view of above, the Writ Petition is allowed. The impugned orders dated 29.12.2021 (Annexure P/2) and dated 28.07.2021 (Annexure P/1) are quashed. Any amount recovered from the petitioner in pursuance to the impugned order dated 29.12.2021 (Annexure P/2) be refunded to him within a period of 90 days from the date of receipt of certified copy of this order. The respondents are directed to revise the pay-fixation of the petitioner keeping in view the provisions of fundamental Rule 22 (D) in appropriate manner.
24. The petition is allowed. No costs.
(MILIND RAMESH PHADKE) JUDGE (aspr) Signature Not Verified Signed by: ASHISH PAWAR Signing time: 18-11-2024 06:07:06 PM