Public Spirited Person Undergoing Sterilisation Can't Be Deprived Of Advance Increments Under Scheme For Family Planning: Madhya Pradesh HC
The Indore Bench of Madhya Pradesh High Court held that if a public spirited person (whether he is a government servant or not) unselfishly gets himself/herself sterilised for family planning, such person cannot be later deprived of any benefit under a government scheme for advance increments to government servants opting for family planning.In doing so, the court clarified that such person...
The Indore Bench of Madhya Pradesh High Court held that if a public spirited person (whether he is a government servant or not) unselfishly gets himself/herself sterilised for family planning, such person cannot be later deprived of any benefit under a government scheme for advance increments to government servants opting for family planning.
In doing so, the court clarified that such person is also entitled to the benefit even if the person has contributed to such cause before entering into a government service.
A single-judge bench of Justice Subodh Abhyankar observed, “…if a public spirited person, regardless of the fact whether he is a government servant or not, unselfishly gets himself/herself operated upon for family planning, such person cannot be deprived of the benefit of the aforesaid circular which provides for advance increments to government servants opting for family planning. This is for the reason that the ultimate object of the government is to control the birth rate and the explosion of population by resorting to family planning only, and if a person has contributed to the same cause while he/she was not in government service and subsequently joins the same, he/she is also entitled to the benefit of his/her benevolent act of helping the government in the retiral clause.”
As per the factual matrix of the case, the petitioner is a Staff Nurse who was granted advance increment on the basis of a government circular (dated July 25,2001) with a view to promote the family planning programme, and to encourage the government servant to opt for vasectomy/tubectomy (Nasbandi). The order in respect of advance increment was passed in 2013. However, in 2022, a notice was issued to the petitioner and a recovery to the tune of Rs. 2,51,038 was made against her without affording any opportunity of hearing. Moreover, another demand notice by way of order was also issued to her stating that since the petitioner had already operated herself prior to February 24, 2010, she is not entitled to the benefit provided to her in 2013.
The counsel for the petitioner submitted that the circular dated July 25, 2001 clearly provides that to promote the family planning the Government is providing advance increment to the person who agrees for vasectomy/tubectomy (Nasbandi). It was further submitted that even assuming if petitioner was granted advance increment on account of wrong interpretation of the aforesaid circular, the amount cannot be recovered after such a long period of time as there was no suppression of facts by the petitioner.
On the contrary, the counsel for the respondent/State submitted that it was a precondition in the aforesaid circular that such person, who has got himself/herself operated upon should be a public servant at the time of operation.
After perusal of the aforementioned circulars, the court said, “…circular has been issued by the State Government only to promote its family planning programme, and in such circumstances, if a person who has already taken steps for the family planning by resorting to Nasbandi prior to his appointment, and is subsequently appointed in the government service, cannot be said not to promote the government's family planning programme.”
The court thus, observed that even if a person had opted for sterilization for family planning while he/she was not in government service but subsequently joins the same, he/she will be entitled to the benefit under such scheme.
Further, with regard to order of recovery against the petitioner on the ground that the advance increment has wrongly been given to her, the court referred to Thomas Daniel Vs. State of Kerala and others 2022 SCC Online SC 536 wherein it was held, “…if 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, such excess payment of emoluments or allowances are not recoverable.”
The petition was hence, allowed and the impugned orders were quashed.
Case Title: Gori Saxena Versus The State Of Madhya Pradesh Directorate Ayush And Others, Writ Petition No. 28689 of 2022
Citation: 2024 LiveLaw (MP) 338