Bombay High Court
Ramchandra Girjappa Teli vs State Of Maharashtra And Others on 15 April, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5230 OF 2015
Ramchandra Girjappa Teli,
Age 65 years, Occ. Retired
Teacher, R/o.Jewali,
Tq. Lohara, Dist. Osmanabad ..Petitioner
versus
1. The State of Maharashtra,
Through its Principal Secretary,
General Administration Department,
Mantralaya, Mumbai - 32
2. The Chief Executive Officer,
Zilla Parishad Osmanabad,
Tq. and Dist. Osmanabad
3. The Education Officer (Primary),
Zilla Parishad Osmanabad,
Tq. and Dist. Osmanabad
4. The Block Education Officer,
Zilla Parishad, Osmanabad
Tq. and Dist. Osmanabad
5. The Chief Accountant Officer,
Zilla Parishad, Osmanabad,
Tq. and Dist. Osmanabad ..Respondents
WITH
WRIT PETITION NO.4949 OF 2015
Eknath s/o. Vithoba Jadhave (died)
through Lrs.
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1. Sakuntala w/o. Ekant Jadhav,
Age 60 years, Occ. Household,
r/o. Kati, Tq. Tuljapur,
at present at Osmanabad
2. Sanjay s/o. Ekant Jadhav,
Age 45 years, Occ. Driver,
r/o. Kati, Tq. Tuljapur,
at present at Osmanabad
3. Raju s/o. Ekant Jadhav,
Age 40 years, Occ. Labour
r/o. Kati, Tq. Tuljapur,
at present at Osmanabad
4. Ku. Nutan d/o. Ekant Jadhav,
Age 28 years, Occ. Education,
r/o. Kati, Tq. Tuljapur,
at present at Osmanabad ..Petitioners
versus
1. The State of Maharashtra,
Through its Principal Secretary,
General Administration Department,
Mantralaya, Mumbai - 32
2. The Chief Executive Officer,
Zilla Parishad Osmanabad,
Tq. and Dist. Osmanabad
3. The Education Officer (Primary),
Zilla Parishad Osmanabad,
Tq. and Dist. Osmanabad
4. The Block Education Officer,
Zilla Parishad, Osmanabad
Tq. and Dist. Osmanabad
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5. The Chief Accountant Officer,
Zilla Parishad, Osmanabad,
Tq. and Dist. Osmanabad ..Respondents
--
Mr.R.V.Naiknavare, advocate for petitioners (in
both petitions)
Mr.S.B.Yawalkar, AGP for respondent no.1 - State
(in both petitions)
Mr.K.J.Ghute Patil, advocate for respondent no.2
in Writ Petition NO.5230 of 2015
Mr.R.B.Biradar, advocate for respondent no.2 in
Writ Petition No.4949 of 2015
--
CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
DATE : APRIL 15, 2016
ORAL JUDGMENT (Per S.S.SHINDE, J) :-
Rule. Rule is made returnable forthwith. By
consent of the parties, the petitions is taken up
for final hearing.
2. It is the case of the petitioners that they
possessed educational qualification of S.S.C. in
the year, 1969 and therefore, respondent No.2 on
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9th July, 1971 issued appointment order appointing
the petitioners as Assistant Teacher. The
petitioners were asked to join the services on or
before 17th July, 1971. It is further case of the
petitioners that along with the petitioners, other
persons came to be appointed as Assistant Teachers,
who were possessing the same qualification like the
petitioners. The petitioners were appointed in the
pay scale of Rs.105-4-125. Thereafter, pay scale of
the petitioners came to be revised from time to
time as per the Government Policy. On 20th July,
1974, the petitioners had completed their ad-hoc
D.Ed. Course from the Government D.Ed. College,
Osmanabad. On 29th March, 2003, after a period of
35 years, the respondents promoted the petitioners
as Head Masters in the pay scale of Rs.5500-175-
9000. The petitioners were extended all the
benefits including increments, pay scale etc. The
petitioners were issued the pay fixation orders and
accordingly, their pay was fixed on 29th May, 2003.
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3. It is further case of the petitioners that
since their joining as Assistant teacher till the
last pay scale, no one had objected for granting
such pay scale to the petitioners. It is the
specific case of the petitioners that at no point
of time, they were instrumental or played any fraud
so as to fix their pay scale. It is further case of
the petitioners that the respondent - Education
Officer, by issuing the impugned order, has shown
dues of more than Rs.3 Lakhs against the
petitioners after their retirement from service.
The petitioner in Writ Petition No.5230 of 2015,
has retired from service on 30th April, 2008 and
the petitioner in the Writ Petition No.4949 of 2015
has retired from service on 30th April, 2007. It
is the case of petitioners that since the similarly
situated employees stood retired in the year, 2007,
in respect of them also, recovery was ordered by
the respondents.
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4. The learned counsel for the petitions submits
that this Court in Writ Petition No.1236/2013 filed
by Mr.Babarao4 Digambar Kulkarni and others vs The
State of Maharashtra and others decided on 21st
March, 2014 passed an order allowing the said
petition holding that the respondents are not
entitled to recover the amount paid by the
respondents during the period of the service
rendered by the petitioners therein. The learned
Counsel for the petitioners further invited our
attention to the orders passed by this Court on 4th
July, 2012 in Writ Petition No.7838 of 2011
(Association of College and University
Superannuated Teachers (Maharashtra) vs The State
of Maharashtra and others and submits that since
the petitioners were neither responsible for the
excess payment made by the respondents nor they
committed any fraud, the prayer of the petitioners
to quash the impugned order and pay back the
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recovered amount to the petitioners, may be
favourably considered. The learned counsel for the
petitioners has also invited our attention to the
various representations filed by the petitioners
with the respondents / authorities for redressal of
their grievance. He, therefore, submits that both
the petitions may be allowed.
5.
On the other hand, the learned counsel
appearing for respondents No.2 to 5 and the learned
AGP appearing for the State submit that the
petitioners were not entitled to receive certain
monetary benefits since they were not possessing
the requisite qualification initially for the post
of Assistant Teacher and subsequently, for holding
the post of Head Master. It is further submitted
that there is inordinate delay in filing these Writ
Petitions and also the judgments, which are cited
by the learned Counsel for the petitioners, are not
applicable to the present case inasmuch as the
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impugned orders have been issued in the year, 2008
and 2007, respectively, and all these judgments
have been rendered thereafter.
6. Heard the learned counsel appearing for the
petitioners, the learned AGP appearing for the
State and the learned counsel appearing for
respondents No.2 to 5. With their able assistance,
perused the pleadings in the petitions, annexures
thereto, the contentions raised by the petitioners
and also the judgments and orders passed by this
Court in case of similarly situated employees.
7. Upon perusal of the material placed on record,
it appears that, the respondents have not
demonstrated that the petitioners, by playing fraud
or with misrepresentation, have received monetary
benefits which were disbursed to the petitioners.
If the respondents were of the opinion that the
petitioners did not possess the requisite
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qualification for granting particular pay scale, it
was open for the respondents to verify the
documents and not to extend such monetary benefits
in the nature of the revised pay scale. The
respondents allowed the petitioners to render the
services; not only that from time to time, their
pay scale was revised and they were promoted and
appointed on the post of the Head Master. It is
not demonstrated by the respondents that the
petitioners have played any role in fixation of
their pay scale time to time during their service
carrier or they played any fraud or
misrepresentation.
8. In that view of the matter, keeping in mind
the various pronouncements of this Court and the
Supreme Court in the case of State of Punjab and
others vs Rafiq Masih (White Washer) and others,
(2015)4 SCC 334, the case of the petitioners is
covered by categories (i) and (ii) laid down by the
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Supreme Court in the case of Rafiq Masih (White
Washer), para 18 of which reads, thus:
"12. It is not possible to postulate all
situations of hardship, which would govern
employees on the issue of recovery, where
payments have mistakenly been made by the
employer, in excess of their entitlement.
Be that as it may, based on the decisions
referred to herein above, we may, as a
ready reference, summarise the following
few situations, wherein recoveries by the
employers, would be impermissible in law:
(i) Recovery from employees belonging to
Class-III and Class-IV service (or Group
'C' and Group 'D' service).
(ii) Recovery from retired employees, or
employees who are due to retire within one
year, of the order of recovery.
(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.
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(iv) Recovery in cases where an employee
has wrongfully been required to discharge
duties of a higher post, and has been paid
accordingly, even though he should have
rightfully been required to work against
an inferior post.
(v) In any other case, where the Court
arrives at the conclusion, that recovery
if made from the employee, would be
iniquitous or harsh or arbitrary to such
an extent, as would far outweigh the
equitable balance of the employer's right
to recover."
9. In that view of the matter, in our opinion,
the petitioners are entitled for refund of the
principal amount. However, since the petitioners
have belatedly approached this Court, they are not
entitled to interest on the said amount.
10. In the result, both the Writ Petitions are
partly allowed. Respondents No.2 to 5 are directed
to refund the amount recovered from the petitioners
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without paying any interest on it, as expeditiously
as possible; however within six months from today.
Rule is made absolute in the above terms with no
orders as to costs.
[SANGITRAO S. PATIL, J.] [S.S. SHINDE, J.]
kbp
