Supreme Court of India
M.P. MEDICAL OFFICERS ASSOCIATION versus THE STATE OF MADHYA PRADESH & ORS. on 26 August 2022
[2022] 7 S.C.R. 67
M.P. MEDICAL OFFICERS ASSOCIATION
v.
THE STATE OF MADHYA PRADESH & ORS.
(Civil Appeal No. 5527 of 2022)
AUGUST 26, 2022
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Service Law – Recovery of excess amount paid – Employees-members of the appellant association were wrongly granted certainbenefits under a circular till it was subsequently withdrawn, havingbeen issued without authority and also without approval of FinanceDepartment – State Govt. ordered recovery of the excess amountpaid with interest – Single Judge quashed the communicationwithdrawing the circular and the orders of recovery of excess amount– Order set aside by Division Bench – Held: Division Bench justifiedin setting aside the order passed by Single Judge quashing thecommunication withdrawing the circular, considering the groundson which the circular was withdrawn – Impugned order upholdingthe communication withdrawing the circular not interfered with –However, Division Bench erred in quashing the order passed bySingle Judge setting aside the recovery of excess amount paid – Itwas the Department/State that issued the circular and paid thebenefits thereunder – There was neither any misrepresentation bythe concerned employees nor can the mistake be attributed to them– Mistake, if any, can be said to be that of the Department/Statethat issued the circular – On facts, State not justified in orderingrecovery of the excess amount paid, also as some of the employeeshave retired and the recovery shall be from their pension/pensionarybenefits – Order passed by Division Bench upholding the recoveryof the excess amount paid, set aside – No recovery of the excessamount paid – However, for all other purposes including pay fixationand pension etc., the same shall be worked out as per order dtd26.08.08 – M.P. Public Health and Family Welfare (Gazetted) ServiceRecruitment Rules, 2007 – M.P. Public Health and Family Welfare(Gazetted) Service Recruitment Rules, 1988.
State of Punjab and others v. Rafiq Masih, (2015) 4SCC 334 : [2014] 13 SCR 1343 – held inapplicable.
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[2014] 13 SCR 1343 held inapplicablePara 5
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5527of 2022.
From the Judgment and Orders dated 11.10.2018 of the High Courtof Madhya Pradesh Principal Bench at Jabalpur in W.A. No.1073 of2018.
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Civil Appeal Nos. 5528, 5529 and 5530 of 2022.C
P. S. Patwalia, Sr. Adv., Sanjay Sarin, Rohin Oza, Ms. MeghnaMittal, Ms. Gagan Deep Kaur, Aditya Sarin, Pushkar Karni Sinha, DinkarKalra, Prashant Shukla, Ms. Anushree Shukla, Ashu Bhindwar, AnkitTiwari, Ms. Shubhi Bharadwaj, Abhinav Ramkrishna, Divyesh PratapSingh, Advs. for the Appellant.D
Saurabh Mishra, AAG, Ms. Mrinal Elker Mazumdar, Ankit Mishra,Rahul Kaushik, Pashupathi Nath Razdan, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.E
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1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Madhya Pradesh, Jabalpur inWrit Appeal No. 1073 of 2018 by which the High Court has allowed thesaid writ appeal preferred by the State of Madhya Pradesh and othersand has quashed and set aside the judgment and order passed by theFlearned Single Judge passed in Writ Petition No. 6236 of 2014, the originalwrit petitioners – M.P. Medical Officers Association and other individualmembers of the Association have filed the present appeals.
2. The members of the appellant Association and other appellantswere working as Specialists and Dental Specialists respectively underGthe M.P. Public Health and Family Welfare (Gazetted) ServiceRecruitment Rules, 1988. The said Rules were repealed by the M.P.Public Health and Family Welfare (Gazetted) Service Recruitment Rules,2007 published in the Gazette on 27.03.2008. The State issued an orderon 26.08.2008 to grant higher pay-scale on completion of six years to theMedical Officers, Dental Surgeons and officers working in the Specialist H
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M.P. MEDICAL OFFICERS ASSOCIATION v. THE STATE OFMADHYA PRADESH & ORS. [M. R. SHAH, J.]
cadre in a four tier pay-scales. Later, the circular dated 23.05.2009 wasissued to the effect that the period from the date of appointment shallbe counted as notional appointment though the benefit of the schemeshall be granted from the date of issuance of the order of the StateGovernment dated 26.08.2008. In the circular dated 23.05.2009, it wasalso provided that the fourth tier pay-scale will be payable on completionof the prescribed service period, but the financial benefits shall beextended w.e.f. 26.8.2008. The period between the date of completionof the prescribed period and 26.08.2008 shall be eligible for notional payfixation. Having found that the circular dated 23.05.2009 was wronglyissued and was issued without approval of the Finance Department andas the benefits flowing from the circular dated 23.05.2009 were havingfinancial implications/burden and it was found that the said circular wasissued by the authority, who had no competence and therefore videcommunication dated 30.05.2012, the circular dated 23.05.2009 came tobe withdrawn. However, the respective Medical Officers working asSpecialists, Dental Specialists and the officers working in the specialist’scadre – members of the appellant association were granted the actualbenefit flowing from the circular dated 23.05.2009 till 30.05.2012, i.e., tillthe circular dated 23.05.2009 was withdrawn. As the benefits werewrongly paid under the circular dated 23.05.2009, which was subsequentlywithdrawn on 30.05.2012, the State Government ordered recovery ofthe excess amount paid alongwith the interest.
2.1 The communication dated 30.05.2012 withdrawing the circulardated 23.05.2009 and the recovery of the excess amount paid alongwiththe interest were the subject matter of Writ Petition No. 6236 of 2014preferred by the M.P. Medical Officers Association. Individual writpetitioners also filed their separate writ petitions, however, the Writ PetitionNo.6236 of 2014 preferred by the Association was treated as the leadmatter. By common judgment and order, the learned Single Judge allowedall the writ petitions and quashed the communication dated 30.05.2012withdrawing the circular dated 23.05.2009. The learned Single Judgealso quashed the orders of recovery of the excess amount paid alongwiththe interest.
2.2 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned Single Judge dated 20.12.2017 passed in WritPetition No. 6236 of 2014, the State preferred Writ Appeal No. 1073 of2018 before the Division Bench of the High Court. By the impugned A
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Ajudgment and order, the Division Bench of the High Court has allowedthe aforesaid writ appeal and has quashed and set aside the judgmentand order passed by the learned Single Judge quashing and setting asidethe communication dated 30.05.2012 withdrawing the circular dated23.05.2009 and also quashing the recovery of the excess amount paidalongwith the interest. The impugned judgment and order passed by theBDivision Bench of the High Court passed in Writ Appeal No. 1073 of2018 is the subject matter of the present appeals.
3. We have heard Shri P.S. Patwalia, learned Senior Advocateappearing on behalf of the appellant and Shri Saurabh Mishra, learnedAdditional Advocate General appearing on behalf of the respondent State.C
4. Having heard the learned counsel for the respective partis andhaving gone through the impugned judgment and order passed by theDivision Bench of the High Court and the ground on which the circulardated 23.05.2009 was withdrawn namely, the same was issued withoutauthority and/or competence and was issued without any approval and/Dor concurrence of the Finance Department as the benefits flowing fromthe circular dated 23.05.2009 were having financial implications/burden,we see no reason to interfere with the impugned judgment and orderpassed by the Division Bench of the High Court upholding thecommunication dated 30.05.2012 withdrawing the circular datedE23.05.2009. The Division Bench of the High Court is absolutely justifiedin quashing and setting aside the judgment and order passed by the learnedSingle Judge of the High Court quashing the communication dated30.05.2012 withdrawing the circular dated 23.05.2009.
4.1 However, at the same time, the Division Bench of the HighFCourt has erred in quashing and setting aside the judgment and orderpassed by the learned Single Judge allowing the writ petitions and settingaside the recovery of excess amount paid for the period between 2009to 2012, which was sought to be recovered with interest.
5. It is not in dispute that the members of the appellant association, Gwho were serving as Specialists, Dental Specialists and officers in thespecialist’s cadre got the benefits under the circular dated 23.05.2009. Itwas the Department/State, who issued the circular dated 23.05.2009and paid the benefits under the circular dated 23.05.2009 to the membersof the appellant association, which subsequently came to be withdrawnby the State in the year 2012. Therefore, as such, there was neither anyHmisrepresentation on the part of the concerned employees – members M.P. MEDICAL OFFICERS ASSOCIATION v. THE STATE OFMADHYA PRADESH & ORS. [M. R. SHAH, J.]
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, whoissued the circular dated 23.05.2009 under which the members of theassociation were given certain benefits till the same was withdrawn inthe year 2012. Therefore, in the peculiar facts and circumstances of thecase, the State was not justified in ordering recovery of the excess amountpaid along with the interest. It is true that stricto sensu, the decision ofthis Court in the case of State of Punjab and others Vs. Rafiq Masih,(2015) 4 SCC 334 may not be applicable. However, at the same time,as observed hereinabove, and in the facts and circumstances of thecase, the State was not justified in ordering recovery of the excess amountpaid with interest, more particularly, when it is reported that some of thedoctors/dentists – members of the association have retired on attainingthe age of superannuation and the recovery shall be from their pension/pensionary benefits. However, at the same time, their pay fixation andthe 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 theseAppeals Succeed in part. The impugned judgment and order passed bythe Division Bench of the High Court upholding the recovery of theexcess amount paid alongwith interest is hereby quashed and set aside.
In result, there shall not be any recovery of the excess amountpaid pursuant to the circular dated 23.05.2009 till the same was withdrawnon 30.05.2012. However, for all other purposes including the pay fixationand pension etc., the same shall be now worked out as per the orderdated 26.08.2008, as if, the circular dated 23.05.2009 was never issued.
Present appeals are accordingly partly allowed to the aforesaidextent. However, in the facts and circumstances of the case, there shallbe no order as to costs.
Divya Pandey(Assisted by : Roopanshi Virang, LCRA)