Shobha Ramesh Patil vs The Chief Executive Officer Zp ...
2017 Latest Caselaw 9830 Bom

                                    1                                 WP 4616-2016 & 4624-2016


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                       WRIT PETITION NO. 4616 OF 2016


                 Smt. Jayshree Trimbak Takalkar,
                 Age: 60 years, Occup: Pensioner,
                 R/o. Gangapur Tq. Gangapur
                 Dist. Aurangabad.                                       .. Petitioner

                 VS.

        1)       The Chief Executive Officer,
                 Zila Parishad, Aurangabad.

        2)       The District Health Officer,
                 Zilla Parishad, Aurangabad.                             .. Respondents

                                         ----

Mr. D. R. Irale Patil, Advocate for the petitioner. Mr. Dilip Patil Bankar, Advocate for respondents No.1 &

----

WITH

WRIT PETITION NO. 4624 OF 2016

Smt. Shobha Ramesh Patil, Age: 59 years, Occup: Pensioner, R/o. Jadhavwadi, Near T-Point, Aurangabad Tq. and Dist. Aurangabad. .. Petitioner

VS.

        1)       The Chief Executive Officer,
                 Zila Parishad, Aurangabad.

        2)       The District Health Officer,
                 Zilla Parishad, Aurangabad.                             .. Respondents





                                     2                                 WP 4616-2016 & 4624-2016


                                        ----

Mr. D. R. Irale Patil, Advocate for the petitioner. Mr. Dilip Patil Bankar, Advocate for respondents No.1 &

----

CORAM : S. V. GANGAPURWALA & SMT. VIBHA KANKANWADI. JJ.

Date of reserving the Judgment : 03rd November, 2017.

Date of pronouncing the Judgment : 22nd December, 2017.

ORAL JUDGMENT ( Per Smt. Vibha Kankanwadi. J.)

1. Rule. Rule made returnable forthwith and heard learned

advocates for the parties appearing finally, by consent.

2. The question of recovery of amount from retirement

benefits of a Class- III and Class - IV employee of the Government,

after their retirement was the subject matter in many cases. Some of

the cases have been decided by this Court and law has been

crystallized by Apex Court. In spite of the same, the subject matter is

cropping up again and again. In this case also the same subject matter

is involved. Both the petitioners have invoked the jurisdiction of this

Court under Article 14, 16 and 226 of the Constitution of India in

3 WP 4616-2016 & 4624-2016

order to challenge the recovery of amount from the gratuity amount,

under the orders of respondent No.2.

3. Both the petitioners, after passing the training of Auxiliary

Nurse Midwife were appointed on that post. The petitioner in Writ

Petition No. 4616 of 2016 came to be appointed with Zilla Parishad,

Aurangabad on 07-02-1989 and she joined duty on 14-02-1989.

Whereas petitioner in Writ Petition No. 4624 of 2016, came to be

appointed on 24-01-1983 at Primary Health Center, Jarandi Tq.

Soygaon Dist. Aurangabad. The services of petitioner in Writ Petition

No. 4616 of 2016 came to be regularized under the order dated 25-07-

1991. Though she was having a break of two days, it was converted

into admissible leave. Thereafter, both the petitioners have undergone

the training of Lady Health Visitor for a period of six months, and

thereafter, they got the pay-scale for the said cadre. Thereafter, their

pay-scale got increased in view of 5th pay commission and 6th pay

commission. Both the petitioners have retired on attaining the age of

superannuation on 30-04-2014 and 31-07-2014 respectively. After

their retirement, the pension papers were transmitted for issuing

appropriate order of payment of pension, gratuity and commutation.

The respondent No.2 has passed an order on 06-01-2016 and 21-02-

4 WP 4616-2016 & 4624-2016

2014 respectively for re-fixation of the pension and recovery of excess

amount. Amount of Rs.3,49,562/- was proposed to be recovered from

petitioner in Writ Petition No.4616 of 2016 and amount of

Rs.2,47,016/- was proposed to be recovered from petitioner in Writ

Petition No.4624 of 2016. Thereafter, said amount has been recovered

from their amount due from gratuity. The reason that was given by

the respondent is that, the benefit of time bound promotional pay-

scale has been wrongly given to the petitioners.

4. After the affidavit-in-reply has been filed on behalf of

respondents, the petitioners have amended the petition and they have

challenged the impugned orders of recovery as well as the revised pay

fixation done by the respondent No.2 or officers connected to

respondent No.2.

5. In both the matters affidavit-in-reply has been filed by Dr.

Dattatraya Bhagwatrao Gholap on behalf of respondents No.1 and 2.

In both the matters the admission regarding appointment of

petitioners has been given and it has been stated that the date of entry

of the petitioners in service has been wrongly considered. It has been

stated that, the time bound promotion after twelve years ought not to

have been given on the date on which it has been in fact given.

5 WP 4616-2016 & 4624-2016

Further at the time of fixation of pay, when the 5 th pay commission was

granted from 01-01-1996, the basic for fixation of the respective

petitioners was wrongly taken because there was wrong committed

initially. So also the said wrong figure continued while fixing the pay

of the petitioners while granting benefits under 6 th pay commission. It

has been stated that, as regards fixation of pay-scale as per 5 th pay

commission, an interim order was passed in Writ Petition No.2258 of

1993, the pay of all the concerned persons was fixed taking into

consideration that interim order, however ultimately the said writ

petition came to be dismissed. After the meetings with the union of

Auxiliary Nurse Midwife/ Lady Health Visitor employees, in relation

to the excess payment of the pay to them were considered and the

letter was issued to correct the pay-scale to the Taluka Health Officer.

It was decided that the excess amount should be recovered in equal

installments. Therefore, whatever pay was fixed, came to be corrected

subsequently. Reliance has been placed on Rule 132 of Maharashtra

Civil Service (Pension) Rules 1982, which cast a duty on the head of

the office to ascertain and assess the Government dues payable by the

Government servants due for retirement. Taking into consideration

the re-fixation of the pay in respect of the present petitioners, the said

excess amount has been recovered, and thereafter, the no dues

6 WP 4616-2016 & 4624-2016

certificate was issued to the petitioners. It has been also stated that,

the recovery is not arbitrary and illegal. The petitioner is duty bound

to refund the said amount, which was paid in excess.

6. It has been vehemently argued on behalf of the petitioners

that, it has been wrongly mentioned in the affidavit-in-reply that, the

completion of 12 year's period for considering the time bound

promotion has to be reckoned from the date of completion of training.

In fact, it should be from the date of appointment. Therefore, it does

not lie in the mouth of the respondent that, pay was wrongly fixed by

giving time bound scale, then as per 5th pay commission and

consequently further fixation as per 6th pay commission has been

incorrectly made. Further he relied on the decision in State of Punjab

and others Vs. Rafiq Masih (White Washer) and others, 2015 (4),

Supreme Court Cases 334, wherein the decision in Syed Abdul

Qadir Vs. State of Bihar, 2009 (3) Supreme Court Cases 475 was

followed and exception have been carved out for recovery of

payments.

7. Further reliance has been placed on the decision of this

Court in Mukund Dattopant Pathak Vs. The State of Maharashtra

and others, Writ Petition No.11204 of 2015 with connected petitions,

7 WP 4616-2016 & 4624-2016

decided on 29th February 2016, and Dr. Gorakh Kashinath Solanki

Vs. The State of Maharashtra and others, Writ Petition No.6919 of

2012, decided on 12th February 2014.

8. Per contra, it has been argued on behalf of the

respondents that, any amount paid / received, without authority of

law can always be recovered; barring few exceptions of extreme

hardships. Exemption from recovery can not be claimed as a matter of

right. This has been held in Chandi Prasad Uniyan and Ors. Vs.

State of Uttarakhand and Ors., AIR 2012 Supreme Court 2951.

The Apex Court has held that, "even the excess payment made to

teachers/ principals due to wrong pay fixation is liable to be

recovered. Recovery of excess paid public money cannot be limited

only to cases of fraud or misrepresentation. This may be the result of

mistakes committed by the employee". Here in this case, a wrong date

was considered for giving time bound promotion scale which cannot

be said to be error of the employee. Further in view of the interim

order granted by this Court (Nagpur Bench), the further scale was

given but the ultimate result of the said case i.e. Writ Petition No.2258

of 1993 was in favour of the Government, and therefore, whatever

excess payment was made, the Government is entitle to recover.

8 WP 4616-2016 & 4624-2016

Reliance has also been placed on the decision in High Court of

Punjab and Haryana and Others Vs. Jagdev Singh, decided by Apex

Court in Civil Appeal No.3500 of 2006 on July 29, 2016. Further

reliance has also been placed on the decision of this Court in Writ

Petition No.6191 of 2016, Dr. Ravindra Shamrao Darunte Vs. The

State of Maharashtra and others, decided on 10th March, 2017.

9. It is not in dispute that, the petitioners; after passing

S.S.C. came to be selected as Auxiliary Nurse Midwife. The petitioner

in Writ Petition No. 4616 of 2016 joined her services on 07-02-1989

whereas the petitioner in 4624 of 2016 joined her services on 24-01-

1983. They were sent for training for six months, and thereafter, they

have joined their regular duties. The pay scale after completion of

their training was revised on 01-07-1993 and 01-10-1988 respectively.

Thereafter, the 5th pay commission was made applicable; in which the

policy was framed to provide time bound promotional pay scale to its

employees who had completed 12 years of service but were not given

benefit of promotion. The rules in that respect have been framed. The

petitioner in Writ Petition No.4616 of 2016 was given the benefit with

effect from 14-02-2001, whereas as regards petitioner in Writ Petition

No.4624 of 2016 was given promotion on 12-12-1994. Now it is the

9 WP 4616-2016 & 4624-2016

say of the respondents No.1 and 2 that, the 12 years period for time

bound promotion scale ought to have been reckoned from the date of

completion of training. It appears to be against the Government

Resolution. The intention behind framing the said policy was to

overcome the stagnation and therefore it ought to be from the date of

appointment and not from the date of completion of training.

10. Respondents have contended that as the fixation of the

pay was wrongly done, when it was fixed after 12 years of service; the

wrong was carried forward when the pay was fixed when 6 th pay

commission was implemented. Respondents have relied on Rule 132 of

the Maharashtra Civil Service (Pension) Rules, 1982, which cast a duty

on the head of the office to ascertain and assess the Government dues,

payable by Government servant due for retirement; but that

assessment or re-assessment should be as per the rules as well as the

law laid down. That does not mean that a sweeping right has been

conferred. It has not been shown by the respondents that, there is

compliance of Rule 134 (a) of Maharashtra Civil Service (Pension)

Rules 1982. Reasonable opportunity was not given to the petitioners to

show cause as to why the amount due should not be recovered from

them. Under such circumstances Rule 132 cannot be read in isolation

10 WP 4616-2016 & 4624-2016

from the requirements that have been contemplated under Rule 134

(a) of Maharashtra Civil Service (Pension) Rules 1982. In fact, there

was opportunity each time when further fixation was done, for the

respondent to correct mistake if at all it is there. However, the

respondents have tried to correct the alleged mistake almost at the

retirement of both the petitioners. Now after so many years i.e. 13 -14

years, it could not have been revised or re-fixed by the respondents

without giving an opportunity to the petitioners. There is no dispute

regarding the fact that the re-fixation of withdrawing the higher pay

scale granted to the petitioners, was without giving hearing to them.

It is not the case of the respondents that the grant of higher pay scale

to petitioners was a result of a fraud or misrepresentation on the part

of petitioners. That means the impugned order has been passed by the

respondents unilaterally and in violation of principals of natural

justice. In Bhagwan Shukla v/s. Union of India & others reported in

AIR 1994 SC 2480 the Hon'ble Supreme Court observed that if basic

pay of any employee is reduced with retrospective effect and employee

was not granted opportunity to show cause, in such circumstances,

there would be flagrant violation of the principles of natural justice

and order of reducing pay was set aside.

11 WP 4616-2016 & 4624-2016

11. Another aspect is that, the petitioners are the employees

from Class-III / Grade -III. In State of Punjab and others Vs. Rafiq

Masih (White Washer) and others, (2015) 4 Supreme Court Cases

334 it has been observed that, "orders passed by the State as

employer seeking recovery of monetary benefits wrongly extended to

the employees, can only be interfered with, in cases where such

recovery would result in a hardship of a nature, which would far

outweigh, the equitable balance of the employer's right to recover".

The law on this point has been summarized as follows ;

"18. 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(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.

                                       12                                 WP 4616-2016 & 4624-2016

                (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."

12. Petitioners are dependent on their pension. Petitioners

would be required to take care of their needs, medical expenses etc.

Now the said amount has been reduced only because of the impugned

order. Pension is a right of an employee, who puts long tenure of

service. The impugned order would put petitioners to hardship, that

too which contemplates recovery of excess amount of about 13 years.

In the above-said case of Rafiq Masih it has been held that the Court

must weigh the hardship faced by the employee with any hardship that

the employer may face and arrive at a conclusion as to whose hardship

would be more. If we apply the said theory, then it is obvious that the

hardship that the petitioners would face far outweigh the hardship

faced by the State Government. Following observations from Rafiq

Masih's case are important.

13 WP 4616-2016 & 4624-2016

"7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court.

8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.

9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality, can be found in Articles 14 to 18, contained in Part III

14 WP 4616-2016 & 4624-2016

of the Constitution of India, dealing with "Fundamental Rights". These Articles of the Constitution, besides assuring equality before the law and equal protection of the laws; also disallow, discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracized section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the "Directive Principles of State Policy". These Articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice - social, economic and political, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections.

10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 142 of

15 WP 4616-2016 & 4624-2016

the Constitution of India.

The recovery by the employers were held to be impermissible

in law in situations those have been enumerated of paragraph No.18

of Rafiq Masih's case (Supra). The case of the petitioners squarely

falls within clause (i), (ii), (iii) and (v) of para No.18 of the said case.

13. Further in Shyam Babu Verma and Ors. v/s. Union of

India reported in (1994) 2 SCC 521, the Hon'ble Supreme Court has

held that since the petitioners received the higher scale due to no fault

of theirs, it shall only be just and proper not to recover any excess

amount already paid to them.

14. Even in the case of Chandi Prasad Uniyal and Ors. Vs.

State of Uttarakhand and Ors., (supra) though it has been held that,

the recovery can be ordered; but the Apex Court accepted that such

recovery is barring few exceptions. It has been observed as follows ;

"16. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over- payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess

16 WP 4616-2016 & 4624-2016

money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

Therefore, it cannot be said that any contrary view was taken by the

Apex Court. In paragraph No.14, the Apex Court has taken a note of

the directions given in 2009 (3) Supreme Court Cases 475 i.e. Syed

Abdul Qadir's case. When the interim order was passed by this Court

(Nagpur Bench) in Writ Petition No. 2258 of 1993 and the

Government Resolution regarding fixation of pay was issued; the

Government has given a further pay scale in pursuance to the said

order. Though in the said writ petition it has been held that, the

demand of treating Lady Health Visitor (L.H.V.)/ Health Assistant

17 WP 4616-2016 & 4624-2016

(Female) as equivalent to Nurse Midwife is misconceived and cannot

be sustained, and therefore, the orders dated 7th April 1993 and 9th

July 1993 rectifying the error committed by the Zilla Parishad earlier

were held to be sustainable. However it is to be noted that, no order

as regards recovery was passed. Though the Government was aware

about granting of further pay scale in view of interim order, no prayer

was made in that petition by the Government in respect of recovery. A

similar situation arose in the case in Writ Petition No.6919 of 2012

before this Court; wherein the basis for effecting recovery was stated

to be a decision rendered by the Division Bench of this Court in Writ

Petition No.2750 of 1990 decided on 21-06-2009. In the said case it

was observed that, the Division Bench in that proceeding had not

directed or in any way suggested the respondents to take steps for

recovering the amount or revised the pay of the employees extended in

the year 1984. Therefore, it was held that, the case of the petitioner

squarely falls within the exceptions carved out in the matter of Syed

Abdul Qadir. Here also the case of the petitioners is well within the

exceptions carved out in the matter of Syed Abdul Qadir.

15. The petitioners case is based on the equal footing of the

other matters which have been cited by the learned counsel for the

18 WP 4616-2016 & 4624-2016

petitioners. The case cited by the respondents bearing Civil Appeal

No.3500 of 2006 by Apex Court in High Court Punjab and Haryana

and others Vs. Jagdev Singh, is based on different facts, the

petitioner therein was a Class-I employee (Civil Judge, Junior

Division) and then was promoted as Additional Civil Judge, therefore

definitely he was not within the exceptions. Further though in that

case as well as in the present case, an undertaking was given by the

petitioners yet the undertaking given by the present petitioners was

subject to the legal proposition that has been laid down in Rafiq

Masih's case. This was the exact view taken in Writ Petition No.6191

of 2016 by this Court when the petitioner therein was also not found

to be a Class -III or Class -IV employee, therefore the view taken in

those cases cannot be made applicable to the present case.

16. Taking into consideration the above discussion, definitely

the step taken by the respondents for re-fixation of the pay-scale of the

petitioners after about 13 years or more without hearing petitioners

and thereafter recovery and actually deducting it from the gratuity

cannot be upheld. As per the procedure laid down in Rule 134 (a) of

the Maharashtra Civil Service (Pension) Rules 1982, ought to have

been given to the petitioners herein, and therefore, now we would

19 WP 4616-2016 & 4624-2016

inclined to give an opportunity to the respondents to re-fix the pay of

the petitioners after giving them an opportunity. This is a fit case

where the writ jurisdiction of this Court under Article 226 and 227

deserves to be invoked. For the aforesaid reasons writ petitions

deserve to be allowed. Hence, following order.

ORDER

1) Both the Writ Petitions are hereby allowed.

2) Order passed by Medical Officer, PHC Bhendala, Tq.

Gangapur as a compliance of order passed on 27-09-2013

by respondent No. 2 is hereby quashed and set aside.

3) Order passed by Medical Officer, PHC Panwadod

(Bk.), Tq. Sillod as a compliance of order passed on 17-03-

2003 and 27-09-2013 by respondent No. 2 and 3 is hereby

quashed and set aside.

4) The order issued by respondent on 06-01-2016

bearing No. ZPA/Health/EST-4/14/119 in Writ Petition

No.4616 of 2016 and the order No. ZPA/Health/EST-4/

14/ 8146 dated 05-12-2014 issued by respondent No.2 are

20 WP 4616-2016 & 4624-2016

hereby quashed and set aside.

5) The respondents are directed to repay the respective

amounts to respective petitioners which have been already

deducted in pursuance to the said order within a period of

six (6) months from today.

6) The respondents are at liberty to re-fix the pay of

both the petitioners after giving them opportunity.

7) Rule accordingly made absolute. There shall be no

order as to costs.

                 [SMT. VIBHA KANKANWADI]    [S. V. GANGAPURWALA]
                           JUDGE                        JUDGE


vjg/-.