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Jabalpur, Dated : 17.01.2018 This petition under Article 226 of the Constitution of India has been filed by the petitioner, who is a retired Subedar (M) of the Police Department of the Government of M.P. seeking quashment of order of recovery Annexure P-6 dated 23.11.2016 and to seek further direction to decide representation Annexure P-7 and to grant any other relief, which may be deemed fit in the facts of the case.

2. The facts unfolded to file the present petition are that the petitioner was appointed on the post of Assistant Sub Inspector (M) as per order Annexure P-2 dated 19.6.1982. He was promoted on the post of Account Subedar (M) as per order Annexure P-3 dated 11.7.2014. Thereafter on attaining the age of superannuation he retired from the said post vide order Annexure P-4 dated 31.10.2016. Because the post retiral dues and pensionary benefits of the petitioner were not settled, however, he submitted representation Annexure P-7 to respondent No. 4 to grant his legible dues. In response thereto order of recovery Annexure P-6 dated 23.11.2016 has been passed, which is assailed in view of the judgment of the Supreme Court in the case of State of Punjab & others Versus Rafiq Masih (White Washer) reported in 2014(4) SCC 334. It is contended that the petitioner was a Class III employee since retired, therefore, in the light of the judgment of the Supreme Court in Rafiq Masih (supra) the recovery from the retiral dues, as directed, is not permissible.

3. Learned counsel for the petitioner has placed reliance on a judgment of this Court in W.P. No.8791/2016 (Smt. Kapsi Bai Vs. State of M.P) decided on 6.10.2017 inter alia contending that this Court has considered the judgment of Division Bench of the High Court of Rajasthan, Jodhpur in Civil Special Appeal (W) No. 349/2014 (Mohammed Yusuf Versus Maharana Pratap Agriculture & Technology and another) decided on 24.11.2016 wherein the judgment of High Court of Punjab & Haryana & others Versus Jagdev Singh reported in (2016) 14 SCC 267 has been distinguished and the case of Rafiq Masih (supra) has been relied upon. However, agreeing with the view taken by the High Court of Rajasthan, this Court has quashed the order of recovery. In the said judgment it was observed that in W.P. No. 16633/2016 (Dr. Ashok Kumar Parashar Versus The State of M.P.) decided on 23.6.2017, the Court has rightly observed that Rule 65 of M.P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as the Pension Rules) is not applicable to retired Government servant. Reliance has also been placed on a judgment of Division Bench of this Court in W.A. No.1232/2017 (The State of Madhya Pradesh & others Versus Chandrashwar Prasad Singh) decided on 15.12.2017 whereby the Division Bench has observed 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. It is said that the aforesaid judgment of Division Bench has again been relied upon by Single Bench of this Court in W.P. No. 18758/2015 (Phoolchand Patel Versus The State of Madhya Pradesh) decided on 11.1.2018 and the order of recovery is quashed. In such circumstances, the recovery as directed against the petitioner may be ordered to be quashed.

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 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:

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.