Bombay High Court
Bhimrao Shivramji Pachare vs The President, Secretary ... on 29 July, 2016
Bench: V.A. Naik
1/4 2907WP1969.16-Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1969 OF 2016
PETITIONER :- Bhimrao Shivramji Pachare, Aged - adult,
Occu. Peon, Presently working at E.S.High
School, Riddhapur, Tq. Morshi, Distt.
Amravati.
...VERSUS...
RESPONDENTS :- 1) The President/Secretary, Education Society,
Belora, Tq. Morshi, Distt. Amravati.
ig 2) The Head Master, E.S.High School,
Riddhapur, Tq. Morshi, Distt. Amravati.
3) The Education Officer, Zilla Parishad
(Secondary), Amravati, Distt. Amravati.
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Mr. S. M. Vaishnav, counsel for the petitioner.
Mr. P. S. Patil, counsel for the respondent Nos.1 and 2.
Mr. N. R. Rode, Asstt. Govt. Pleader for the respondent No.3.
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CORAM : SMT. VASANTI A NAIK &
MRS.SWAPNA JOSHI, JJ.
DATED : 29.07.2016
O R A L J U D G M E N T (Per Smt.Vasanti A. Naik, J.)
Rule. Rule made returnable forthwith. The petition is
heard finally with the consent of the learned counsel for the parties.
2. By this writ petition, the petitioner challenges the order, dated
03.02.2016 seeking of recovery of the excess amount paid to the petitioner
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towards salary. By the impugned order, the petitioner was conveyed that the
salary of the petitioner was wrongly fixed and he was paid the excess amount.
3. Shri S.M.Vaishnav, the learned counsel for the petitioner, fairly
states that the petitioner is not challenging the impugned order so far as it
reduces the salary of the petitioner on the ground that it was wrongfully fixed
and the petitioner has restricted the challenge only to the part of the order that
seeks the recovery of the excess amount paid to the petitioner. The learned
counsel states that the case of the petitioner is fully covered by the judgment
of the Hon'ble Supreme Court in the case of Rafiq Masih, reported in (2014)
8 SCC, 883. It is stated that the recovery of the excess amount that is paid to
an employee without misrepresentation by the employee for seeking the same,
cannot be made when the employee is on the verge of retirement or has
retired from service. It is stated that the petitioner has retired from service on
30.06.2016.
4. Shri P. S. Patil, the learned counsel for the respondent Nos.1
and 2, does not dispute the position of law, as laid down by the Hon'ble
Supreme Court. It is admitted that the petitioner has retired from service on
attaining the age of superannuation, on 30.06.2016. In the circumstances of
the case, it is stated that an appropriate order may be passed.
5. Hence, by following the judgment of the Hon'ble Supreme Court
in the case of Rafiq Masih, reported in (2014) 8 SCC, 883, we quash and set
aside the impugned order so far as it directs the petitioner to refund the
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amount that was paid to the petitioner in excess, as the petitioner has not
misrepresented while seeking the said amount and the petitioner has retired
from service. On the request made on behalf of the petitioner, the Education
Officer is directed to grant the retiral benefits to the petitioner, in view of the
fixation of the pay, as per the impugned order, at the earliest.
Rule is made absolute in the aforesaid terms. No costs.
JUDGE JUDGE
KHUNTE
4/4 2907WP1969.16-Judgment
C E R T I F I C A T E
I certify that this Judgment uploaded is a true and correct copy of
original signed Judgment.
Uploaded by : G.S.Khunte, Uploaded on : 03/08/2016
P.A.to Hon'ble Judge
