Madhya Pradesh High Court
The State Of Madhya Pradesh Thr vs Govind Prakash Mohna (Ead) Thr Smt. ... on 25 November, 2016
1
WA.No.317/2016
(State of MP & Ors vs. Govind Prakash Mohna (Dead)
Through: LR Smt. Kunti Verma & Anr.)
25.11.2016
Shri Praveen Newaskar, learned Govt. Advocate for
appellants/State.
Shri O.P.Saxena, learned counsel for the respondents.
1. This intra court appeal assails the final order dated 16.11.2015 passed in W.P.No.1566/2011(S) whereby the petition in question challenging the withdrawal of two advance increments granted vide order dated 26.11.2003 (Annexure R-2) filed along with return before the writ court, has been allowed by relying upon various decisions of the Apex Court including the case of State of Punjab Vs. Rafiq Masih (White Washer), [2015] 4 SCC 334.
2. The sole contention of the State counsel is that the benefit of two advance increments was extended by the petitioner/State by Annexure R-2 based on petitioner's affidavit i.e. 13.11.2003 (Annexure R-1). State contends that when the said benefit was extended to petitioner the Assistant Teachers were entitled to the said benefit only on acquiring higher qualification in B.Ed. on Govt. expense whereas the petitioner acquired the higher qualification of M.Ed. on his own expense which is revealed by the affidavit dated 13.11.2003. In this factual background, learned Govt. Advocate for the State alleges that there has been suppression of material facts on the part of petitioner who is thus not entitled to the benefit of the ratio laid down by the Apex Court in Rafiq Masih case (supra).
3. It is seen that the learned counsel for the petitioner on the other hand defends the order of the writ court by submitting absence of misrepresentation in the affidavit.
2 WA.No.317/20164. It is seen from the record that earlier circular dated 24.12.1998 (Annexure P-3) extended the said benefit to those Assistant Teachers who were appointed subsequent to 22.10.64 and who acquired the higher qualification on his/her own expense as is the case of petitioner who had acquired higher qualifications of M.Ed. on his own expense. Incidentaly, the State issued a subsequent circular in 1999 stating that the said benefit shall be extended to the Assistant Teachers who acquired qualification on Govt. expenses and for the said purpose decision of Division Bench in the case of R.S.Chaudhary Vs. State of M.P. & Others, I.L.R. [2007] M.P., 1329 has been relied upon.
5. Without entering into the factum of relevancy of the circular upon the fact situation prevailing in the present case the only ground which has been raised by the State counsel is that the affidavit dated 13.11.2003 (Annexure R-2) is a misrepresentation of fact by the petitioner which misled the authority into granting benefit of two advance increments vide Annexure P-3.
6. A close scrutiny of the aforesaid affidavit Annexure R-2 reveals that the petitioner had disclosed that he has acquired higher qualification of M.Ed. on his own expense and not on Govt. expense which infact was the reality and therefore there was no suppression of material facts on the part of the petitioner employee. It is a different matter that the authority got misled into believing otherwise.
7. In this factual situation, decision of the Apex Court in the case of State of Punjab Vs. Rafiq Masih (White Washer), [2015] 4 SCC 334 comes to the rescue of the petitioner, especially in the absence of misrepresentation of facts by the petitioner. The relevant portion of the said decision of Apex Court where 3 WA.No.317/2016 guidelines are laid down i.e. para 18 is reproduced below for ready reference and convenience :-
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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law :
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the employee, 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 petitioner's cause is squarely covered under Clause (ii) & (iii) in para 18 of Apex Court decision as the petitioner had already retired on 31.08.2009 (Annexure P-8) when the impugned action of recovery was taken and that impugned recovery is of benefit extended way back in 2003.
9. In view of the above, this court is of the considered view that there is no reason to take a different view than the one taken 4 WA.No.317/2016 by the writ court.
10. Considering the fact that the original petitioner was a senior citizen who is now represented by his legal heirs, and the petitioner was compelled to knock the doors of the court in the evening of his life to prosecute this avoidable piece of litigation, this court deems it appropriate to impose cost of Rs.5,000/- upon the State which shall be payable to the petitioner within 60 days and compliance report in that regard be filed in four weeks thereafter.
Accordingly, the present writ appeal is hereby disposed of in above terms by the modifying the impugned order of the writ court to the extent indicated above.
(Sheel Nagu) (S.A.Dharmadhikari)
Judge Judge
AK/-