Bombay High Court
Smt. Kamal D/O Gopalrao vs State Of Maha & Ors on 3 July, 2017
Bench: T.V. Nalawade
WP No. 432/04
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 432 OF 2004
Smt. Kamal d/o. Gopalrao,
Age 57 years, Occu. Retired,
Asstt. Teacher, R/o. C/o. Shri.
S.R. Dumne, F-2, 'Devendra'
Adinath Nagar, Garkheda,
Aurangabad. ....Petitioner.
Versus
1. The State of Maharashtra,
Education Department,
Mantralaya, Mumbai.
2. The Education Officer,
(Primary), Zilla Parishad,
Nanded, Dist. Nanded.
3. The Chief Executive Officer,
Zilla Parishad, Nanded.
4. The Head Master,
Zilla Parishad High School,
Dharmabad, Tq. Dharmabad,
Dist. Nanded. ....Respondents.
Mr. S.D. Joshi, Advocate for petitioner.
Mr. S.W. Munde, A.G.P. For respondent No. 1/State.
Mr. V.S. Panpatte, Advocate for respondent Nos. 2 to 4.
CORAM : T.V. NALAWADE AND
SANGITRAO S. PATIL, JJ.
DATED : July 3, 2017.
ORAL JUDGMENT : [PER T.V. NALAWADE, J.]
. The petition is filed to challenge the orders made by
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respondents/employer in respect of fixing of pay on the basis of
recommendations of 5th Pay Commission and also of the recovery of
amount of Rs. 21,714/- from the gratuity amount payable to the
petitioner. Both the sides are heard.
2. The petitioner was working as Assistant Teacher in Zilla
Parishad Girls' High School, Osmanabad and then at Dharmabad in
Nanded district. By Government Resolution dated 10.12.1998 the
State Government made applicable the Report of 5 th Pay Commission
to its employees and to the employees of Zilla Parishad. After that
option of employees was called by Zilla Parishad for pay fixation.
There are two options viz. fixing the pay on the date on which
increment becomes due or fixing the pay on the date when the
Report of 5th Pay Commission became enforceable. 1 st November was
the date of increment of the petitioner and so, the petitioner gave
the option to fix the pay on the date of her increment. The new scale
was to be given effect from 1.1.1996 and so, in ordinary course, as
per the option given by the petitioner, the pay ought to have been
fixed as on 1.11.1996. The pay came to be fixed with effect from
1.1.1996 which was not the option given by the petitioner and
accordingly, for some time, the payments were made. This mistake
was realised and subsequently, corrections were also made.
However, the amount which was paid in excess remained to be
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recovered and that mistake came to be corrected in the orders which
were passed after the retirement of the petitioner.
3. The petitioner retired on 30.11.2002 by taking voluntary
retirement. The correspondence shows that though the correction
was made in the pay scale, the amount already paid in excess was
not recovered and so, the order under challenge came to be passed
after her retirement. This order was made in January 2004.
4. The learned counsel for petitioner submitted that when
the petitioner was entitled to exercise first option, to get the pay
fixed on the date when the new pay scale was to be given, the
respondents ought not to have gone for correcting it and for making
further orders. It appears that by amending the petition, the
petitioner has prayed for giving directions to the respondents to see
that the pay is fixed as per the option which was not given by the
petitioner. At the outset, it needs to be mentioned that such thing
cannot be done by exercising writ jurisdiction. The options are given
to the employees and they are expected to study the benefits of
particular option. It needs to be presumed that at the relevant time,
the petitioner presumed that she would get benefit due to second
option which was exercised by her. However, it can be said that it
was not the mistake of the petitioner and the excess payment was
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made only due to the mistake committed by respondents/employers.
No part was played by the petitioner in the fixing of pay as it was the
duty of the respondents to fix the pay as per the option exercised by
the employee and so, the respondents cannot be allowed to recover
the amount which is paid in excess to the petitioner. So, the petition
can be allowed partly and the following order is made accordingly.
ORDER
The petition is partly allowed. The relief is granted to the
petitioner only in respect of the recovery of amount of Rs. 21,714/-
sought by the respondents/employer and to that extent the order of
respondents is set aside. The other part, the decision of the
respondents of pay fixation and fixing the pension and gratuity
amount accordingly will remain the same. Rule is made absolute in
aforesaid terms.
[SANGITRAO S. PATIL, J.] [T.V. NALAWADE, J.]
ssc/
