Chakresh Kumar Jain vs State Of Madhya Pradesh & Others

Having retired from the post of Laboratory Technician on attaining the age of superannuation w.e.f. 30.06.2007, the petitioner vide this petition under

Article 226 & 227 of the Constitution of India seeks quashment of order dated 27.01.2010. The order is in following terms :

^^ e/; izns'k 'kklu    foÙk foHkkx

                   oYyHk Hkou ea=ky; Hkksiky dzekad ch@139@2010@fu;e@viBuh;    Hkksiky fnukad 27

tuojh] 2010 izfr] vk;qDr laHkkx] e/;izns'k] Hkksiky

fo""k;& ;kfpdk dzekad W.P. 5276@2008 ¼S½ ;wfuoflZVh ,.M dkyst yscksjsVjh LVkQ QsMjs'ku vkWQ bafM;k fo:) e/;izns'k 'kklu o vU; A

lanHkZ& vkidh uksV'khV dzekad 124 fnukad 14-01-2010 ,oa vk;qDr mPp f'k{kk lapkyuky; ds i= dzekad 723@07@vkmf'k@'kk[kk-7@02 fnukad 23-

03-2002 A

&&&0&&&

mijksDr fo""k;kUrxZr vkns'kkuqlkj ys[k gS fd lkekU; iz'kklu foHkkx ds ifji= fnukad 27-3-99@19-4-99 }kjk tkjh dzeksUurh ;kstuk mPp f'k{kk foHkkx

ds iz;ksx'kkyk rduhf'k;uksa dks ykxw ugha gS AÂ ;fn mPp f'k{kk foHkkx ds iz;ksx'kkyk rduhf'k;u mDr ;kstuk dk ykHk vU; viBuh; rduhf'k;uksa dh

HkkWarh ysuk pkgrs gSa] rks mUgsa bu vkns'kksa esa of.kZr osrueku ,oa 'krsZ ;FkkfLFkfr ykxw viBuh; gksaxh AÂ blds lkFk gh bUgs iwoZ esa

lkekU; iz'kklu foHkkx ds ifji= fnukad 23-1-96] 25-3-96 }kjk ykxw mDr osrueku 1400&2340 izfr/kkfjr djus dh ik=rk ugha gksxh] vFkkZr mijksDr

nksuks esa viBuh; ;kstuk dk ykHk ysus dk os fodYi ns ldsaxs A

      ¼fefyUn okbZdj½   mi lfpo

e/; izns'k 'kklu foRr foHkkx

       Hkksiky fnukad 27 tuojh 2010

                            Â

i`""B dzekad Mh % 139@2010] fu;e] viBuh; izfrfyfi & dk;kZy; vf/kdkjh uxj dks""kky; bankSj dh vksj lwpukFkZ ,oa vko';d dk;Zokgh gsrq A^^Â

Evidently, the impugned order is passed in compliance to order passed in W.P. No.5276/2008 ( Uni. & College Lab. Staff of India Vs. Accountant

General & Others) dis-entitling the Laboratory Technician for grant of benefit of krammonati. As a result whereof, the pay of Lab Technician

including the petitioner was directed to be fixed by the State by order dated 23.12.2013. Consequence whereof the petitioner's pay has been refixed by

the order, filed as Annexure P/5. Though it is contended on behalf of the petitioner that he having retired w.e.f. 30/06/2007 subsequent decision by the

State Government taken in the year 2010 cannot be made applicable to the petitioner. However, since trite it is that unless provided for under the

policy/Rules an incumbent cannot claim as a matter of right the entitlement for benefit of krammonnati. No cogent material document has been

commended at to establish such right as would lead the court to cause any indulgence with the decision of the State Government.

It is next contended that for no mistake of his the petitioner has been subjected to recovery. Reliance is placed on the decision in State of Punjab and

Others Vs. Rafiq Masih (White Washer), (2015) 4 SCC 334 to substantiate the submissions that since the petitioner had no role in fixation of pay by

adding increment, no recovery could be effected.

In Rafiq Masih ( Supra ) it is held :

“16. This Court in Syed Abdul Qadir v. State of Bihar (2009) 3 SCC 475 held as follows: (SCC pp. 491-92, para 59)

Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and

the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of

place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess

payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible.

Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. The learned

counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping

in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no

recovery of the amount that has been paid in excess to the appellant teachers should be made.""Â Â Â (emphasis supplied) Premised on the legal

proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out

yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed

Abdul Qadir (2009) 3 SCC 475, that recovery of excess payments, made from employees who have retired from service, or are close to their

retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired

employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to

mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his

earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are

satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period

within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated

as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the

recovery is sought to be made after the employee's retirement, or within one year from the date of his retirement on superannuation.â€​

In view whereof, no notice seems to have been issued to the petitioner before directing for the recovery of the difference amount, therefore, the

petition is disposed of with the liberty to the petitioner to file representation to the Competent Authority seeking indulgence. In case the representation

is filed within fifteen days from the date of communication of this order, the Competent Authority shall decide the same within 30 days in accordance

with law and the parameters laid down in Rafiq Masih ( Supra ). Till then there shall be no recovery of excess amount which arises from the order

of refixaiton.

Petition is finally disposed of in above terms.

No costs. Â