Jagdish Prasad Dandotiya vs State of Madhya Pradesh and Others

Hon''ble Justice Mr. Sujoy Paul

The petitioner was served with an order dated 08.01.2003, whereby he was given the benefit of special pay of Rs. 250/- . This benefit and the benefit of one advance increment was withdrawn by the respondents pursuant to some audit objection. The petitioner challenged the same by filing a writ petition No. 1244/2006(s), which was decided on 03.06.2006. This Court disapproved the action of the respondents in discontinuing the benefit of advance increment and gave liberty to them to proceed further after giving an opportunity of hearing to the petitioner. The respondents restored the said advance increment. At this stage, the petitioner filed a contempt petition bearing No. 412/2006 on the ground that special pay of Rs. 250/- has not been restored. This Court on 23.07.2008 vide order Annexure P-6 permitted the petitioner to raise the question of grant of special pay of Rs. 250/- by filing a fresh writ petition. In turn, the present petition has been filed by the petitioner in the year 2008. The respondents have chosen not to file their reply. On 24.06.2011, this Court granted last opportunity to the respondents to file their reply within six weeks, but no reply has been filed by the respondents till date. Accordingly, this matter is heard finally on the basis of material available on record. It is clear that by Annexure P-2 the benefit of special pay of Rs. 250/- was granted to the petitioner on the basis of finance department circular dated 03.02.2001 mentioned in Annexure P-2. However, the same was discontinued pursuant to Annexure P-1 without affording an opportunity of hearing to the petitioner. The respondents have also recovered the amount of special pay, which was granted to the petitioner.

The question is whether the said recovery is permissible under the law? In the considered opinion of this Court, there was no misrepresentation of fact by the petitioner in getting the said benefit of special pay of Rs. 250/- . The respondents by passing the order Annexure P-2 have granted the said benefit to the petitioner and, therefore, there is no question of making recovery by issuing the order Annexure P-1. Thus, the recovery of amount in question, in view of the Judgment of Hon''ble Supreme Court in the case of Sahib Ram Vs. State of Haryana & Ors. reported in 1995 Supp. (1) SCC 18 and also in view of the fact that the aforesaid judgment is consistently followed by various Benches of this Court, one of such judgment in the case of State of M.P. & Ors. Vs. Ghanshyam Swaroop Sharma reported in 2009 (2) MPLJ 263, deserves to be set aside. Accordingly, the recovery from 08.01.2003 till the date of audit objection is quashed and set aside. The said amount be refunded to the petitioner within three months, failing which it will carry interest @ 6% per annum till the date of payment.

So far as the question of continuation of benefit of special pay is concerned, if at all the respondents intend to discontinue the said benefit then they may hear the petitioner by issuing a show cause notice to him. The show cause notice be served to him within 45 days from the date of receipt of certified copy of this order and the petitioner may file his reply within two weeks. Thereafter, the respondents may pass a fresh speaking order regarding eligibility of the petitioner to get the benefit of special pay within 30 days from the date of receipt of reply of the petitioner. It is made clear that if the respondents fail to issue show cause notice within the stipulated time then their right to issue such notice shall automatically stand forfeited and in that event, the petitioner will continue to get the benefit of special pay of Rs. 250/- till his retirement. The petitioner is entitled to get the cost of Rs. 2000/- from the respondents, which shall be paid by them to the petitioner within three months. With the aforesaid, this writ petition stands allowed.