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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.

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 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:-

13. The said judgment has again been relied upon in the case of Phoolchand Patel (supra) by the Co-ordinate Bench of this 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 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.