MILIND RAMESH PHADKE, J.

1. The present petition under Article 226 of the Constitution of India had been filed by the petitioner being aggrieved by the order dated 24/04/2013 passed by Respondent No.3, whereby date for entitlement for benefit of senior pay scale, extended to the petitioner w.e.f. 17/05/2000 to 25/07/2000 and of selection grade w.e.f. 25/07/2003 to 25/07/2005, were revised, on the ground that the same has been passed without giving him any notice and affording any opportunity of hearing. Further, challenge was to the order dated 25/09/2014, whereby in pursuance to the above order dated 24/04/2013 a recovery of Rs.2,46,920 with an interest @12% to the extent of Rs.92,670/- was ordered to be made from the petitioner.

2. Short facts of the case leading to the present controversy are that the petitioner was initially appointed as Assistant Professor on 25/07/1994. The services of the petitioner are being governed by the Rules known as “Madhya Pradesh Educational Service (Collegiate Branch) recruitment Rules, 1990” (In short Rules of 1990) and by virtue of the said rules the grant of benefit of senior pay scale and selection grade came before screening committee and the screening committee after considering the case of the petitioner made recommendations for grant of senior pay scale, as the petitioner was found fit on completion of 6 years of service and acceding to the recommendations of the screening committee the benefit of senior pay scale was extended to him vide order dated 10/04/2003 w.e.f. 17/05/2000 and fixation in the pay scale of senior grade of Rs.10,000-325-15200/- was made. The department further considered the case of the petitioner for granting him the benefit of selection grade w.e.f. 25/07/2003 in the scale of Rs.12000-420-18300.

3. In the year 2008, Department of Finance, State of Madhya Pradesh, revised the pay scale of the government employees w.e.f. 01/01/2006, whereby benefits of 4th pay band was extended to the petitioner and since 01/01/2006 the petitioner was getting the benefit. Suddenly vide Annexure P/1 dated 24/04/2013 the dates of extending the above benefits were revised and the senior pay scale was directed to be granted from 27/07/2000 in place of 17/05/2000. Likewise, selection grade was revised to be paid from 25/07/2005 instead of 25/07/2003, which resulted in revision of pay and ended up in recovery. In pursuance to the order dated 24/04/2013 Annexure P/1, an order dated 25/09/2014 (Annexure P/2) was issued whereby recovery of the amount as mentioned above was ordered, which is herein challenged as arbitrary, illegal and malafide.

4. Learned counsel for the petitioner vehemently argued that the action of the respondents is arbitrary, without jurisdiction and contrary to Article 14 & 16 of the Constitution of India and is against the mandate of the judgment of Hon’ble Supreme Court in the matter of State of Punjab Vs. Rafiq Masih reported in (2015) 4 SCC 334. It was submitted by the learned counsel for the petitioner that the petitioner was appointed as Assistant Professor on 25/07/1994 and in view of the Rules of 1990 the Screening Committee considered the case of the petitioner for grant of benefit of senior pay scale and made recommendations as the petitioner was found fit on completion of 6 years of service and the benefit of senior pay scale was extended to him vide order dated 10/04/2003 w.e.f. 17/05/2000 and fixation in the pay scale of senior grade of Rs.10,000-325-15200/- was made. The department further extended him the benefit of selection grade w.e.f. 25/07/2003 in the scale of Rs.12000-420-18300, but on 25/09/2014 a recovery notice/order was issued, whereby without giving any opportunity of hearing money to the tune of Rs.2,46,920/- with 12% interest was directed to be deposited.

5. Learned counsel for the petitioner in the light of the above factual matrix contended that the excess payment made to the petitioner was not on account of any misrepresentation or fraud on his part, rather it was made on account of pay refixation done on 24/04/2013, due to some wrong interpretation of the circular dated 11/10/1999, for which the petitioner cannot be blamed. It was further argued that in the wake of circular dated 09/11/1999 the petitioner was entitled for the benefit of senior pay scale after completion of 6 years of his service and for selection grade he was entitled after completion of 9 or 11 years, as the case may be, which was rightly given and could not have been withdrawn. Thus, on the strength of the above arguments prayed for setting aside of the order dated 24/04/2013 (Annexure P/1) whereby the pay refixation was done and also of order dated 25/09/2014 (Annexure P/2) whereby recovery was directed.

6. Per contra learned Government Advocate while supporting the impugned orders contended that the benefit of senior pay scale and selection grade was extended to the petitioner on the basis of wrong interpretation of the circular of 11/10/1999, as the petitioner had completed his Ph.D during his service and therefore was not entitled for any relaxation in the minimum length of service and the benefit was extended to him erroneously, the same was withdrawn and order of recovery was made, which cannot be faulted with. It was also contended that in the light of judgment of the Supreme Court in the matter of High Court of Punjab & Haryana & Others vs. Jagdev Singh reported in 2016 SCC Online SC 748, since the petitioner had given undertaking, the recovery initiated against him is just & proper, thus, prayed for dismissal of the Writ Petition.

7. Heard the learned counsels at length and perused the record.

8. With regard to challenge to the order dated 24/04/2013, whereby the pay scale was revised, extract of Career Management Scheme under which benefit of senior pay scale and selection grade were extended to the employees of Higher Education, which pertains to the petitioner is reproduced below:

Consolidated statement based on letters No.F.1-22/97-Ut issued on 27th July, 1998 (Annexure -1), 22nd September, 1998 (Annexure -II) and 6th November, 1998 (Annexure – III) by Ministry of Human Resource Development dh d afMdk &1 (iii) (a)

Career Advancement

(a) Minimum length of service for eligibility to move into the grade of Lecturer (Senior Grade) would be four years for those with ph.D. Five years for those with M.Phil. and six years for others as a Lecturer, and for eligibility to move into the Grade of Lecturer (Selection Grade) Reader, the minimum length of service as Lecturer (Senior Grade) shall be uniformly five years.”

9. From bare reading of the extract above it is evident that the minimum length of service for getting the benefit of senior grade was 4 years for candidates who had done Ph.D, 5 years who had done M.Phil and 6 years for others and to be reckoned for selection grade minimum of 5 years uniform for every class, was proposed according to which the petitioner who fell in the third category was given the senior grade in the year 2000 and thereafter, he became eligible for selection grade after 5 years thereafter, in the year 2005, thus, the pay refixation cannot be said to be arbitrary and needs no interference.

10. So far as reliance placed by the learned Government Advocate on the judgment of Jagdev Singh (supra), contending that since an undertaking is given by the petitioner at the time of pay refixation that in the event of any wrong/erroneous pay fixation, the same can be recovered from, is concerned, no such undertaking is there on record to demonstrate the factum of undertaking as aforesaid given by the petitioner, the only document available on record is a “Security Bond” executed at the time of grant of arrears of revised payscale, wherein it is only mentioned that in the event of excess payment of arrears and not repaid by the petitioner, the guarantors would indemnify the said amount, which doesn’t mean that the petitioner had given an undertaking as alleged, thus, the argument doesn’t deserves to sustain, rather in case of State of Punjab & others vs. Rafiq Masih (White Washer) & Others reported in (2015) 4 SCC 334, the Supreme Court had observed that :

“(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.”

And in the present matter since the benefit of senior pay scale was given to the petitioner w.e.f. 17/05/2000 and that of selection grade was given w.e.f. 25/07/2003, and was withdrawn on 25/09/2013, excess payment since made for a period in excess of 5 years could not have been recovered.

11. It is not in dispute that the petitioner, got the benefits under the circular dated 11.10.1999. It is also not in dispute that it was the Department/State, who issued the circular dated 11.10.1999 and paid the benefits under the circular to the petitioner, which subsequently came to be withdrawn vide circular dated 29/01/2008. In case of the petitioner, referring to the circular dated 29/01/2008, the benefit was withdrawn vide revised order dated 24/04/2013. Therefore, as such, there was neither any misrepresentation on the part of the petitioner nor can the mistake be attributed to him. The mistake, if any, can be said to be that of the Department/State, who issued the circular dated 11.10.1999 under which the employees alike petitioner were given the benefits of senior pay scale & selection grade till the same were withdrawn in the year 2008, in case of the petitioner the same was withdrawn in the year 2013. Therefore, in the peculiar facts and circumstances of the case, the State was not justified in ordering recovery of the excess amount. Further, since there was no express undertaking for payment of interest, and no promise was extended by petitioner for recovery of interest over the excess payment, it is explicit that petitioner would not be liable to pay the interest also.

12. From the aforesaid analysis what comes out loud and clear, that the State was not justified in ordering recovery of the excess amount paid with interest, therefore, Annexure P/2 dated 25/09/2013, whereby the recovery is directed to be made from the petitioner appears to be unsustainable.

13. Thus, the petition is hereby partly allowed, keeping the order of revision of pay scale Annexure P/1 dated 24.4.2013 intact, Annexure P/2, order of recovery dated 25/09/2014 is hereby quashed. Since from the record it appears that no recovery has been made by the respondents so far as they are precluded from recovering the same, but if the recovery has been made the same be refunded within a period of two months from the date of receiving the certified copy of this order.

14. Accordingly, the writ petition is allowed and disposed of.