Sudam Sopanrao Chikhalikar vs The State Of Maharashtra And ...
2016 Latest Caselaw 2321 Bom

                                    1           WP-2228-2016.odt


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                     
                      BENCH AT AURANGABAD




                                            
                      WRIT PETITION NO.2228 OF 2016

    Sudam s/o. Sopanrao Chikhalikar,
    Age 59 years, Occ. Agri.,
    R/o. Maniknagar, Parli-V,




                                           
    Tq. Parali-V, Dist. Beed.                    ..Petitioner


                  versus




                                    
    1] The State of Maharashtra,

       Department, Mantralaya,
       Mumbai
                              
       Through Law and Judiciary
                             
    2] The Principal Secretary,
       Law and Judiciary Department,
       Mantralaya, Mumbai
      

    3] The Accountant General,
       Through its Account Officer,
   



       Pay Verification Unit
       Department, Aurangabad

    4] The Civil Judge, Junior Division,





       Parali-V, Tq.Parali-V, 
       Dist. Beed                        ..Respondents

                             --
    Mr.A.V.Rakh, Advocate for petitioner





    Mr.V.S.Badakh, AGP for respondent nos.1 to 2

    Mr.N.B.Suryawanshi, Advocate for respondent no.4

    Respondent no.3 - served
                                    --




     ::: Uploaded on - 07/05/2016            ::: Downloaded on - 30/07/2016 01:04:03 :::
                                      2           WP-2228-2016.odt




                                                                      
                            CORAM  : S.S. SHINDE AND
                                     SANGITRAO S. PATIL, JJ. 




                                              
                      RESERVED ON  : APRIL 27, 2016
                    PRONOUNCED ON  : MAY 05, 2016 


    JUDGMENT (Per Sangitrao S. Patil, J) :

Heard.

2] Rule. Rule made returnable forthwith. By

consent of the parties, Writ Petition is heard

finally.

3] The petitioner, who retired on 30.11.2014 as

Assistant Superintendent, attached to the Court of

Civil Judge, Junior Division, at Parali-Vaijnath,

Dist. Beed, has challenged the revised pay

fixation order dated 04.07.2015 passed by

respondent no.4, i.e. Civil Judge, Junior

Division, Parli-Vaijnath, Dist. Beed, showing

excess payment of pay and allowances to the tune

of Rs.4,20,416/- to the petitioner and the notice

dated 29.09.2015 issued at the instance of

3 WP-2228-2016.odt

respondent no.4 calling upon him to show cause as

to why the said amount should not be recovered

from the pensionary benefits of the petitioner. He

further claimed the benefit of the recommendations

of Justice Shetty Commission since, according to

him, his post is covered in Clause 3 of the chart

given under the caption 'Increase in Pay Scale' of

the resolution dated 20.10.2011 passed by the

Government of Maharashtra, Law and Judiciary

Department, Mantralaya, Mumbai.

4] The learned Counsel appearing for the

petitioner submits that as per the impugned order

dated 04.07.2015 passed by respondent no.4 in

pursuance of the communication dated 23.02.2015

received from respondent no.3, the amount of

Rs.4,20,416/- has been shown to have been paid in

excess to the petitioner during the period from

October, 2005 to November, 2014 and has been

sought to be recovered from the pensionary

4 WP-2228-2016.odt

benefits of the petitioner. He submits that the

petitioner retired from service on 30.11.2014. He

was a Class-III employee. 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 said amount was not liable to

be recovered from the petitioner. He further

submits that the petitioner was promoted to the

post of Assistant Superintendent on 01.07.2008 and

worked as such till 30.11.2014, when he retired on

attaining the age of superannuation. He was never

demoted from that post. Prior to his retirement,

the Service Book of the petitioner was sent for

verification of pay to respondent no.3 - Accounts

Officer, Pay Verification Unit, Aurangabad.

Accordingly, respondent no.3 fixed his pay on

16.12.2013 and entry thereof was taken in the

Service Book of the petitioner. According to him,

it was correct pay fixation as per the

recommendations of Justice Shetty Commission. The

5 WP-2228-2016.odt

learned Counsel, therefore, submits that the

Office Order dated 04.07.2015 issued by respondent

no.4 may be set aside and the pay fixed by

respondent no.3 - Accounts Officer, Pay

Verification Unit, Aurangabad as per order dated

16.12.2013 may be confirmed. He further prays that

the order directing recovery of Rs.4,20,416/- from

the pensionary benefits of the petitioner may be

set aside.

5] One Ganpat s/o. Venkatrao Jadhav, Accounts

Officer, Pay Verification Unit, Aurangabad filed

affidavit-in-reply on behalf of respondent no.3

and opposed the claims of the petitioner. The

learned AGP submits that the circular dated

08.03.2013 issued by the Government of

Maharashtra, Law and Judiciary Department,

Mantralaya, Mumbai is not applicable to the case

of the petitioner since, as per Clause 4 thereof,

the petitioner is not entitled to get benefits of

6 WP-2228-2016.odt

the recommendations of Justice Shetty Commission.

He supports the impugned order dated 04.07.2015,

show cause notice dated 29.09.2015 and prays that

the petition may be dismissed.

6] So far as the controversy in respect of

recovery of Rs.4,20,416/- from the petitioner on

account of excess payment is concerned, the

learned Counsel appearing for the petitioner

referred to paragraph 18 of the judgment in the

case of State of Punjab and others (supra)

wherein, the Hon'ble the Supreme Court has

summarised some of the situations when recovery by

the employer would be impermissible in law. They

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

7 WP-2228-2016.odt

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.

(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] Indisputedly, the petitioner was a Class-III

employee and the impugned order dated 04.07.2015

8 WP-2228-2016.odt

showing excess payment has been passed after

retirement of the petitioner. Therefore, the

case of the petitioner would be squarely covered

under Clauses (i) and (ii) referred to above. In

that view of the matter, the impugned action

proposed to be taken against the petitioner for

recovery of Rs.4,20,416/- on account of excess

payment being impermissible, is liable to be

nullified.

8] The learned counsel for the petitioner cited

the judgment in the case of Amanulla Khan s/o.

Amir Khan Pathan Vs. State of Maharashtra and

ors., 2016(1) Mh.L.J. 723, wherein, it has been

observed that the benefits of the recommendations

of Justice Sheety Commission are liable to be

given to the Assistant Superintendents

irrespective of the fact, whether the persons

holding such posts are attached to the Court of

Civil Judge, Junior Division or that of the Senior

Civil Judge. In view of this judgment, the

9 WP-2228-2016.odt

petitioner is entitled to claim benefits as

recommended by Justice Shetty Commission.

9] In the above circumstances, the present Writ

Petition succeeds. We, therefore, set aside the

revised pay fixation order dated 04.07.2015 passed

by respondent no.4 showing excess payment of

Rs.4,20,416/- from the petitioner as also the show

cause notice dated 29.09.2015 for recovery of the

said amount from his pensionary benefits. We

direct respondent no.4 to refix the pay of the

petitioner in tune with the order dated 16.12.2013

and send the proposal for pension of the

petitioner to respondent no.3, at the earliest.

10] With these directions, the Rule is made

absolute. The Writ Petition stands disposed of

accordingly. No costs.

[SANGITRAO S. PATIL, J.] [S.S. SHINDE, J.] kbp