Bombay High Court
Prakash Laxmanrao Sonawane And ... vs The State Of Maharashtra And ... on 19 July, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.12037 OF 2015
1. Prakash s/o. Laxmanrao Sonawane,
Age : 45 years, Occ. Service,
2. Umar Hasan Pathan,
Age : 48 years, Occ. Service,
3. Shaikh Faiyyaz Shaikh Ameer,
Age 48 yars, Occ. Service,
4.
Kalyan s/o. Gulabrao Pawar,
Age : 38 years, Occ. Service,
5. Narendra s/o. Vijayrao Deshmukh,
Age : 37 years, Occ. Service,
6. Pravin s/o. Muralidhar Yeole,
Age : 39 years, Occ. Service,
7. Jagdish s/o. Raghunath Patil,
Age : 40 years, Occ. Service,
8. Ajij Shaha Nawab Shaha,
Age : 38 years, Occ. Service,
9. Rajendra s/o. Dhanraj Mali,
Age : 39 years, Occ. Service,
10. Rambhau s/o. Bhausing Gudhekar,
Age : 44 years, Occ. Service,
11. Dilip s/o. Bhimrao Mahajan,
Age : 42 years, Occ. Service,
12. Tukaram s/o. Walmikrao Harde,
Age : 45 years, Occ. Service,
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13. Hemant s/o. Raghunath Patil,
Age : 38 years, Occ. Service,
14. Ravindra s/o. Aasaram Shirase,
Age : 41 years, Occ. Service,
15. Pushpa Devchand Patil,
Age : 47 years, Occ. Service,
16. Seema Tukaram Jadhav,
Age : 42 years, Occ. Service,
17. Raju s/o. Kalanu Awachar,
Age : 42 years, Occ. Service,
18. Lalita Vishvas Pawar,
Age : 38 years, Occ. Service,
19. Avinash s/o. Sadashiv Patil,
Age : 42 years, Occ. Service,
20. Prakash s/o. Kashinath Ahire,
Age : 42 years, Occ. Service,
21. Vinayak s/o. Maroti Anwade,
Age : 42 years, Occ. Service,
22. Dinesh s/o. Yashwant Patil,
Age : 39 years, Occ. Service,
23. Pundlik s/o. Vishnu Sonawane,
Age : 58 years, Occ. Service,
24. Sanjay s/o. Uttamsingh Bagul,
Age : 42 years, Occ. Service,
25. Subhash s/o. Rambhau Narale,
Age : 51 years, Occ. Service,
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26. Narayan s/o. Trayambak Wagh,
Age : 44 years, Occ. Service,
27. Jyoti Sambhaji Kale,
Age : 38 years, Occ. Service,
28. Bharati Wamanrao Salunke,
Age : 54 years, Occ. Service,
29. Hiralal s/o. Gangaram Salunke,
Age : 55 years, Occ. Service,
30. Bhikan s/o. Shenpadu Wanarase,
Age : 42 years, Occ. Service,
31. Nilkanth s/o. Ambadas Losarwar,
Age : 47 years, Occ. Service,
32. Minakshi Amrutrao Shinde,
Age : 42 years, Occ.Service,
33. Bapu s/o. Karbhari Narwade,
Age : 38 years, Occ. Service,
All r/o. c/o. Z.P. Aurangabad,
Tq. and Dist. Aurangabad ..Petitioners
Vs
1. The State of Maharashtra,
Through its Secretary,
School Education Department,
Mantralaya, Mumbai
2. The Secretary,
General Administration Department,
Mantralaya, Mumbai
3. The Chief Executive Officer,
Zilla Parishad, Aurangabad
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4. The Education Officer (Primary),
Zilla Parishad, Aurangabad
5. The Chief Accountant and Finance
Officer, Zilla Parishad,
Aurangabad
6. The Block Education Officer,
Panchayat Samiti, Kannad ..Respondents
--
Mr.G.K.Kshirsagar, Advocate for petitioners
Mr.S.D.Kaldate, AGP for respondent nos.1 and 2
Mr.S.M.Ganachari, Advocate for respondent nos.3 to
6
--
CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
RESERVED ON : JULY 15, 2016
PRONOUNCED ON : JULY 19, 2016
JUDGMENT (PER SANGITRAO S. PATIL, J) :
Heard. Rule. Rule made returnable
forthwith. With consent of the parties, the Writ
Petition is heard finally.
2. The petitioners, who are serving as
Assistant Teachers with respondent no.3 - Zilla
Parishad, Aurangabad have challenged the vires of
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the letter/order at Exhibit 'G' page 40 of the
compilation of the Writ Petition, issued by
respondent no.5 - the Chief Accountant and Finance
Officer, Zilla Parishad, Aurangabad whereby the
amount of additional increments paid to them has
been ordered to be recovered from them.
3.
The learned Counsel for the petitioners
submits that the petitioners fall under the
category of Class-III employees. The additional
increments have been paid to them by respondent
no.3 considering their outstanding work. The
amount of the additional increments has not been
obtained by the petitioners by practising fraud or
making misrepresentation. Therefore, in view of
the judgment in the case of State of Punjab and
others Vs. Rafiq Masih (White Washer) and others,
(2015)4 SCC 334, the amount of additional
increments already paid to them cannot be
recovered from them.
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4. The learned Counsel for respondent nos.1
and 2 strongly opposes the petition. He submits
that the additional increments were wrongly
granted in favour of the petitioners. The said
fact came to be noticed by respondent no.5.
Therefore, he issued the impugned letter/order
seeking explanation from the concerned
Administrative Officer as to under what rules the
additional increments were granted to the
petitioners and further directed to recover the
said amount from them. He supports the impugned
letter/order and prays that the Writ Petition may
be dismissed.
5. It is not the case of the respondents
that the additional increments were granted to the
petitioners because they practised fraud or made
misrepresentation. If the authority concerned
granted additional increments in favour of the
petitioners, either by inadvertence or by mistake,
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without there being any fault on the part of the
petitioners, the petitioners cannot be held
responsible for payment of the additional amount.
6. On the point of recovery of such amount
from the employees, it would be apt here to
reproduce the situations referred to in paragraph
18 of the judgment in the case of State of Punjab
and others (supra) under which, recovery by the
employer would be impermissible in law, which are
as under :-
(i) Recovery from the employees
belonging to Class III and Class IV
service (or Group C and Group D service).
(ii) Recovery from the retired
employees, or the employees who are due
to retire within one year, of the order
of recovery.
(iii) Recovery from the 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."
7. Indisputably, the petitioners fall in the
category of Class-III employees. Therefore, their
case would be covered under Clause (i), referred
to above. In the circumstances, recovery of the
excess amount paid to the petitioners on account
of additional increments would be impermissible.
8. The petitioners have claimed that they
are entitled to get additional increments for
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their outstanding work in view of the circulars
issued by the Government from time to time. We are
not expressing any opinion on this claim of the
petitioners. If they are entitled to get
additional increments on the basis of any
Circular/Government Resolution, they would be at
liberty to approach the appropriate authority for
grant of necessary relief.
9. In the above circumstances, the Writ
Petition is allowed partly with the following
directions :-
(i) The respondents are restrained from
making recovery of the excess payments made to the
petitioners on account of the additional
increments.
(ii) The petitioners would be at liberty to
approach the concerned authority to vindicate
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their claim for additional increments on the basis
of the Circular/Government Resolution, if any.
(iii) With these directions, the Rule is made
partly absolute.
(iv) The Writ Petition is disposed of
accordingly.
(v) The parties are left to bear their own
costs.
Sd/- Sd/-
[SANGITRAO S. PATIL, J.] [S.S. SHINDE, J.]
kbp
