RAMAN SINGH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India has been filed by the petitioners seeking the following reliefs:

(2.) The brief facts giving rise to filing of the present petition is that the petitioners are aggrieved by the order of recovery dtd. 31/8/2020, Annexure P/6 passed by the Commandant, Hawk Force, Police Head Quarters Bhopal/respondent No.4, by which the amount paid as "Nexalite Operation Risk Allowance" for the period from 1/7/2017 till 31/8/2020 has been sought to be recovered on the ground that the said allowance ought to have been paid in consonance to the recommendations of the 6th pay commission whereas the same has been paid in consonance to the recommendations of the 7th pay commission. Petitioners were appointed in various departments such as Home Guards, various battalions of the S.A.F., P.H.Q., Bhopal on deputation after following the due procedure of law and after undergoing hard training to weed out the nexalite problem. The force was called as "Hawk Force". The petitioners were required to undergo the written examination as well. The Governor under his signature issued a circular dtd. 18/8/2002 to eradicate and curtail the rising problem of nexalism, sanctioned the formation of "Hawk Force" in which it was also mentioned that the persons, who would from the "Hawk Force" would be entitled for the allowance known as "Nexalite Operation Risk Allowance" which was to be 70% of the salary. Thereafter, the Finance Department sanctioned the "Nexalite Operation Risk Allowance" vide letter dtd. 5/5/2000. The aforesaid allowance was also payable to the petitioners in the light of the M.P. Pay Revision Rules, 2017. On the basis of the aforesaid sanction, the petitioners were paid the allowance w.e.f. July, 2017 till August, 2018 on the basis of the recommendations of the 7th pay commission. However, to the utter surprise of the petitioners, an order dtd. 18/9/2018 was passed creating an anomaly by which it was held that the petitioners are entitled to the aforesaid allowance as per the recommendations of the 6th pay commission and not of the 7th pay commission. The said order is contrary to the order dtd. 18/8/2000 and 25/4/2003 which is still in existence. The petitioners being aggrieved with the impugned order dtd. 31/8/2020 have knocked the doors of this Court seeking redressal of their grievance.

(3.) Learned counsel for the petitioners contended that the impugned order dtd. 31/8/2020 is in clear violation of the principles of natural justice as the same has been passed in mechanical manner and no opportunity of hearing whatsoever has been extended to the petitioner before issuing the order. The impugned order even suffers from the jurisdictional error inasmuch as the Governor had sanctioned the grant of "Nexalite Operation Risk Allowance" whereas the impugned order has been passed by an inferior authority, therefore, the same deserves to be set aside. The respondents erred in coming to the conclusion that the allowance would be payable as per the 6th pay commission recommendations but as per the sanction, the same is payable on the basis of 70% of the salary which is prevailing as on date. It was further contended that the recovery is being made more than after three years of its grant. Neither there is any misrepresentation on the part of the petitioners nor there has been any undertaking given at the time of grant of the allowance. The petitioners are Class-III employees and if this recovery order is allowed to stand, they would face great financial hardship and it would become difficult for them to pay the amount which they have already spent. Learned counsel for the petitioners further contended that the Supreme Court in the case of State of Punjab Vs. Rafiq Masih (White Washer) 2015 4 SCC 334 had laid down the following few situations, wherein recoveries by the employers, would be impermissible in law: