M.P. Medical Officers Association vs The State Of Madhya Pradesh

M.P. Medical Officers Association …Appellant(s)

Versus

The State of Madhya Pradesh & Ors. …Respondent(s)

WITH

CIVIL APPEAL NO. 5528 OF 2022

Dr. Ram Naresh Rajauria & Ors. …Appellant(s)

Versus

The State of Madhya Pradesh & Ors. …Respondent(s)

WITH

CIVIL APPEAL NO. 5529 OF 2022

Dr. Sushil Kumar Khare & Ors. …Appellant(s)

Versus

The State of Madhya Pradesh & Ors. …Respondent(s)

AND

CIVIL APPEAL NO. 5530 OF 2022

Dr. Deepak Phanse & Ors. …Appellant(s)

Signature Not Verified Versus Digitally signed by R Natarajan Date: 2022.08.26 16:55:44 IST Reason: The State of Madhya Pradesh & Ors. …Respondent(s)

1 JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court of Madhya Pradesh, Jabalpur in

Writ Appeal No. 1073 of 2018 by which the High Court has allowed the

said writ appeal preferred by the State of Madhya Pradesh and others

and has quashed and set aside the judgment and order passed by the

learned Single Judge passed in Writ Petition No. 6236 pf 2014, the

original writ petitioners – M.P. Medical Officers Association and other

individual members of the Association have filed the present appeals.

2. The members of the appellant Association and other appellants

were working as Specialists and Dental Specialists respectively under

the M.P. Public Health and Family Welfare (Gazetted) Service

Recruitment Rules, 1988. The said Rules were repealed by the M.P.

Public Health and Family Welfare (Gazetted) Service Recruitment Rules,

2007 published in the Gazette on 27.03.2008. The State issued an

order on 26.08.2008 to grant higher pay-scale on completion of six years

to the Medical Officers, Dental Surgeons and officers working in the

Specialist cadre in a four tier pay-scales. Later, the circular dated

23.05.2009 was issued to the effect that the period from the date of

2 appointment shall be counted as notional appointment though the

benefit of the scheme shall be granted from the date of issuance of the

order of the State Government dated 26.08.2008. In the circular dated

23.05.2009, it was also provided that the fourth tier pay-scale will be

payable on completion of the prescribed service period, but the financial

benefits shall be extended w.e.f. 26.8.2008. The period between the date

of completion of the prescribed period and 26.08.2008 shall be eligible

for notional pay fixation. Having found that the circular dated 23.05.2009

was wrongly issued and was issued without approval of the Finance

Department and as the benefits flowing from the circular dated

23.05.2009 were having financial implications/burden and it was found

that the said circular was issued by the authority, who had no

competence and therefore vide communication dated 30.05.2012, the

circular dated 23.05.2009 came to be withdrawn. However, the

respective Medical Officers working as Specialists, Dental Specialists

and the officers working in the specialist’s cadre – members of the

appellant association were granted the actual benefit flowing from the

circular dated 23.05.2009 till 30.05.2012, i.e., till the circular dated

23.05.2009 was withdrawn. As the benefits were wrongly paid under the

circular dated 23.05.2009, which was subsequently withdrawn on

30.05.2012, the State Government ordered recovery of the excess

amount paid alongwith the interest.

3 2.1 The communication dated 30.05.2012 withdrawing the circular

dated 23.05.2009 and the recovery of the excess amount paid alongwith

the interest were the subject matter of Writ Petition No. 6236 of 2014

preferred by the M.P. Medical Officers Association. Individual writ

petitioners also filed their separate writ petitions, however, the Writ

Petition No.6236 of 2014 preferred by the Association was treated as the

lead matter. By common judgment and order, the learned Single Judge

allowed all the writ petitions and quashed the communication dated

30.05.2012 withdrawing the circular dated 23.05.2009. The learned

Single Judge also quashed the orders of recovery of the excess amount

paid alongwith the interest.

2.2 Feeling aggrieved and dissatisfied with the judgment and order

passed by the learned Single Judge dated 20.12.2017 passed in Writ

Petition No. 6236 of 2014, the State preferred Writ Appeal No. 1073 of

2018 before the Division Bench of the High Court. By the impugned

judgment and order, the Division Bench of the High Court has allowed

the aforesaid writ appeal and has quashed and set aside the judgment

and order passed by the learned Single Judge quashing and setting

aside the communication dated 30.05.2012 withdrawing the circular

dated 23.05.2009 and also quashing the recovery of the excess amount

paid alongwith the interest. The impugned judgment and order passed

4 by the Division Bench of the High Court passed in Writ Appeal No. 1073

of 2018 is the subject matter of the present appeals.

3. We have heard Shri P.S. Patwalia, learned Senior Advocate

appearing on behalf of the appellant and Shri Saurabh Mishra, learned

Additional Advocate General appearing on behalf of the respondent

State.

4. Having heard the learned counsel for the respective partis and

having gone through the impugned judgment and order passed by the

Division Bench of the High Court and the ground on which the circular

dated 23.05.2009 was withdrawn namely, the same was issued without

authority and/or competence and was issued without any approval

and/or concurrence of the Finance Department as the benefits flowing

from the circular dated 23.05.2009 were having financial

implications/burden, we see no reason to interfere with the impugned

judgment and order passed by the Division Bench of the High Court

upholding the communication dated 30.05.2012 withdrawing the circular

dated 23.05.2009. The Division Bench of the High Court is absolutely

justified in quashing and setting aside the judgment and order passed by

the learned Single Judge of the High Court quashing the communication

dated 30.05.2012 withdrawing the circular dated 23.05.2009.

5 4.1 However, at the same time, the Division Bench of the High Court

has erred in quashing and setting aside the judgment and order passed

by the learned Single Judge allowing the writ petitions and setting aside

the recovery of excess amount paid for the period between 2009 to

2012, which was sought to be recovered with interest.

5. It is not in dispute that the members of the appellant association,

who were serving as Specialists, Dental Specialists and officers in the

specialist’s cadre got the benefits under the circular dated 23.05.2009. It

was the Department/State, who issued the circular dated 23.05.2009

and paid the benefits under the circular dated 23.05.2009 to the

members of the appellant association, which subsequently came to be

withdrawn by the State in the year 2012. Therefore, as such, there was

neither any misrepresentation on the part of the concerned employees –

members of the appellant association nor can the mistake be attributed

to them. The mistake, if any, can be said to be that of the

Department/State, who issued the circular dated 23.05.2009 under

which the members of the association were given certain benefits till the

same was withdrawn in the year 2012. Therefore, in the peculiar facts

and circumstances of the case, the State was not justified in ordering

recovery of the excess amount paid along with the interest. It is true that

stricto sensu, the decision of this Court in the case of State of Punjab

6 and others Vs. Rafiq Masih, (2015) 4 SCC 334 may not be applicable.

However, at the same time, as observed hereinabove, and in the facts

and circumstances of the case, the State was not justified in ordering

recovery of the excess amount paid with interest, more particularly, when

it is reported that some of the doctors/dentists – members of the

association have retired on attaining the age of superannuation and the

recovery shall be from their pension/pensionary benefits. However, at

the same time, their pay fixation and the pension shall have to be as per

the order dated 26.08.2008.

6. In view of the above and for the reasons stated above, all these

Appeals Succeed in part. The impugned judgment and order passed by

the Division Bench of the High Court upholding the recovery of the

excess amount paid alongwith interest is hereby quashed and set aside.

In result, there shall not be any recovery of the excess amount

paid pursuant to the circular dated 23.05.2009 till the same was

withdrawn on 30.05.2012. However, for all other purposes including the

pay fixation and pension etc., the same shall be now worked out as per

the order dated 26.08.2008, as if, the circular dated 23.05.2009 was

never issued.

7 Present appeals are accordingly partly allowed to the aforesaid

extent. However, in the facts and circumstances of the case, there shall

be no order as to costs.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J. AUGUST 26, 2022. [B.V. NAGARATHNA]

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