1 Writ Petition No.3174/2011(S) 22.11.2011 Shri V.K. Patwari, Advocate for the petitioner. Shri Bhuwan Deshmukh, Govt. Adv. for the respondents. The petitioner before this Court, who is widow lady has filed this present petition being aggrieved by order dated 9.7.2010 by which recovery has been ordered from the terminal dues payable to her, after the death of her husband. The contention of the petitioner is that her husband late Shri Ramesh Chandra Rathore was employee serving Public Health Department and started his service career vide appointment order dated 24.3.86. Her further contention is that as the destiny was very harsh towards her and her husband expired on 11.9.2009 and the petitioner submitted an application for finalizing terminal dues and also payment of family pension. The petitioner was informed by the Department that her husband has drawn more emolument than the entitlement on account of erroneous pay fixation and the pay of her husband was wrongly fixed in the year 1987 itself. The petitioner being aggrieved by impugned order dated 9.7.2010 has approached this Court and her contention is that there was no misrepresentation on the part of the petitioner nor on the part of her husband in the matter of pay fixation and, therefore, the terminal dues payable to her cannot be withheld. A reply has been filed by the respondents and the stand of the State Government is that the petitioner's husband was appointed as Lower Division Clerk (LDC) by order dated 24.3.86 and he was not holding a typing certificate to his credit; however, in spite of the fact that the husband of the petitioner was not holding a typing certificate to his credit, regular increments were granted to the husband of the petitioner and the same has been granted on account of erroneous pay 2 fixation. It has been further contended that the husband of the petitioner has received more pay than his entitlement on account of erroneous pay fixation even under the revised pay scale and an undertaking was submitted by the late deceased government servant on 6.6.98. The respondents have stated that on account of undertaking submitted by the petitioner's husband they are entitled to recover the amount. The respondents have prayed for dismissal of the petition. Heard learned counsel for the parties at length and perused the record. The matter is being disposed of at the admission stage itself, with the consent of the parties. In the present case it is an admitted fact that the petitioner is a widow of late Shri Ramesh Chandra Rathore. Late Ramesh Chandra Rathore started his service career as LDC by virtue of appointment dated 24.3.86. There was no suppression on the part of the deceased government servant in the matter of pay fixation at any point of time. The return reveals that increments were wrongly granted to the deceased government servant and the excess amount is now being recovered, on account of under taking which is dated 6.6.98. In the present case as per the statement made in the return erroneous pay fixation since inception in service is resulting in recovery and the subsequent under taking on the part of the deceased government servant will not empower the State Government to recover the amount which is being recovered by passing the impugned order dated 9.7.2010. The apex Court in the case of Shyam Babu Verma v/s Union of India has held that in case an employee is not at fault in the matter of pay fixation and in case there is no misrepresentation on the part of the employee, recovery cannot be ordered by the employer and, therefore, keeping in view the 3 judgment delivered by the apex Court in the aforesaid case the question of recovery does not arise. A Division Bench of this Court in the case of State of M.P. & others v/s Ghanshyam Swaroop Sharma, reported in 2009 (2) M.P.L.J. 263 in paragraphs 8, 9 & 10 has held as under:- “8. In view of the law laid down by the Apex Court in State of Haryana vs. Sahib Ram, (1995) Supp.(1) SCC 18, the reference of which also finds mention in the order passed by learned Single Judge, we are of the considered view that no fault can be found with the order passed by learned Single Judge. 9. Here , we may also refer with profit to the Apex Court decision rendered in Col B.J. Akkara (Retd.) vs. Government of India and others, (2006) 11 SCC 709, wherein a question of hardship which results to the petitioner, if any recovery, is made has been addressed directly and Their Lordships have come to the conclusion that petitioners are in more disadvantageous position when compared to in-service employees and thus any attempt made to recover excess wrong payment would cause undue hardship to them particularly when the employees are not guilty of any misrepresentation or fraud in regard to excess payment and on that basis Their Lordships held that no recovery of any excess payment can be made from the retiral benefits. Relevant paragraphs 27, 28 and 29 from the Col. Akkara's case (supra) are quoted as below:- 27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-6-1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar and V. Gangaram v. Regional Jt. Director): (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/ allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right 4 in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery. 29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7-6-1999 till the issue of the clarificatory circular dated 11-9-2001. Insofar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made. 10. In view of the aforesaid, we are of the considered opinion that the recoveries which were effected of Rs.62,575/- from the amount of gratuity of the petitioner- respondent as held by the learned Single Judge is bad in law and we do not find any fault with the order passed by the learned Single Judge.” Keeping in view the aforesaid judgment delivered by the Division Bench of this Court the recovery ordered by the respondents vide order dated 9.7.2010 is accordingly quashed; however, the pay fixation done by the respondents is upheld. The respondents are directed to release the entire amount 5 positively within a period of 60 days from the date of receipt of certified copy of this order. It is needless to mention that the respondents shall also finalize the pension case of the petitioner as expeditiously as possible, preferably within the aforesaid period. Resultantly, the petition stands allowed, but no order as to costs. (S.C. Sharma, J.) rcs*