WP/12314/2020 of AVKA DAWAR Vs PUBLIC HEALTH AND FAMILY WELFARE DEPARTMENT on 2 February 2024

ORDER

1. By this writ petition, the petitioner who is working as ANM haschallenged the order dated 16/7/2020 (Annexure P/1) passed by respondentNo.1 and the calculation sheet (Annexure P/2) by which a recovery of a sum ofRs.48,408/- along with interest of Rs.61,910/- total sum of Rs.1,10,318/- hasbeen directed.

2. Respondents have filed the reply taking the stand that as per therecommendation of the Brahama Swarup Committee, the petitioner was entitledto a particular pay - scale w.e.f. 1/4/2006 but while fixing the pay the error wascommitted and the petitioner was fixed in higher pay-scale and accordinglypayment was made to him hence the petitioner has received the excess amountw.e.f 1/4/2006 therefore, the recovery has been directed.

3. Learned counsel for the petitioner submits that the issue involved in thepresent case is fully covered by order dated 3/10/2017 passed inW.P.No.2196/2017 in the matter of Kailash Rai Sunahre V/s. State of M.P.

& Ors.

4. Learned counsel for the respondents/State opposed the writ petitionbut could not despite the fact that the case of the petitioner is identical to thecase of Kailash Rai Sunahre (supra).

5. The Coordinate bench of this Court in the case of Kailash Rai Sunahre(supra) has passed the following order dated 3/10/2017 :- "Parties through their counsel.

The petitioner before this Court, who is working on the post ofMultipurpose Health Worker is aggrieved by the order dated 4.06.2016issued by the respondents by which recovery of Rs.51,754/- along withinterest @ 12% Rs.29,590/- has been ordered.

Petitioner's contention is that he is a class- III employee appointed on 02.02.1995 and he is still in service. It has been stated that onaccount of revision of pay-scale in light of Revision of Pay Rules, 2009,he was granted higher pay-scale and now recovery has been ordered onthe ground that he was entitled for the pay-scale of Rs.3500-5200/- (GP2100).

Respondents have filed a reply in the matter and their stand isthat the petitioner has submitted an undertaking annexure R-5 at thetime the pay-fixation has been done even though he is a class-IIIemployee.

This Court has carefully gone through annexure R-5, which iscertainly not an undertaking, it is an option given by the petitioner in thematter of grant of higher pay-scale and therefore, the option cannot betreated as an undertaking.

Hon'ble the Supreme Court in the case of State of Punjab andOthers etc. Vs. Rafiq Masih (White Washer) etc, reported in 2015(1)MPHT 130 (S.C.) in paragraph No.12 has held as under :- “12. It is not possible to postulate all situations of hardship,

which would govern employees on the issue of recovery, wherepayments have mistakenly been made by the employer, in excess oftheir entitlement. Be that as it may, based on the decisions referredto herein above, we may, as a ready reference, summarise thefollowing few situations, wherein recoveries by the employers,would be impermissible in law:

(i) Recovery from employees belonging to Class-III andClass-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who aredue to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment hasbeen made for a period in excess of five years, before the order ofrecovery is issued.

(iv) Recovery in cases where an employee has wrongfullybeen required to discharge duties of a higher post, and has beenpaid accordingly, even though he should have rightfully beenrequired to work against an inferior post.

(v) In any other case, where the Court arrives at theconclusion, that recovery if made from the employee, would beiniquitous or harsh or arbitrary to such an extent, as would faroutweigh the equitable balance of the employer's right to recover.”

Undisputedly, the petitioner is serving as a class-III employee andthe recovery ordered is bound to cause undue hardship to him.Resultantly, in light of the aforesaid judgment, the recovery is herebyquashed and the pay-fixation is upheld.

Respondents have also placed reliance upon the judgmentdelivered in the case of Kailash Kushwah Vs. State of M.P. and others(W.P. No.1484/2016 (S).

In the aforesaid case, the petitioner therein has submitted anundertaking whereas in the present case, no such undertaking hasbeen given by the petitioner. Resultantly, the writ petition standsallowed. The amount, if any, has been recovered from thepetitioner be refunded back to the petitioner within 90 days, however, the pay-fixation isupheld.

With the aforesaid, the writ petition stands disposed of.

6. The case of the petitioner stands on the same footing, hence havingregard to the reasons which have been assigned in the case of Kailash RaiSunahre (supra) and taking note of the judgment of the Supreme Court in thecase of State of Punjab and Others etc. Vs. Rafiq Masih (White Washer) etc,reported in 2015(1) MPHT 130 (S.C.), I am of the opinion that the petitioner isentitled to the same relief.

7. As a result, I am of the opinion that the writ petition filed by thepetitioner deserves to be allowed and is accordingly allowed by setting aside theimpugned order dated 16/7/2020 (Annexure P/1) and recovery (Annexure P/2).However the pay fixation is maintained. The amount recovered from thepetitioner be refunded to him within a period of 3 months from the date offurnishing of certified copy of this order.

C.c. as per rules.

SS/-

(PRANAY VERMA)JUDGE