Prakash S/O Balchand Jain vs The State Of Mah. Thr. Its Secty., ...
2017 Latest Caselaw 3263 Bom

WP  2913/11                                            1                             Judgment

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR.
                  WRIT PETITION No. 2913/2011
Prakash s/o Balchand Jain,
Aged 59 years, Occupation - Service,
R/o Bharilla Sadan, Parwar Pura,
Itwari, Nagpur.                                                                 PETITIONER

                                     .....VERSUS.....
1.     The State of Maharashtra,
       Through its Secretary,
       Department of Higher Education,
       Mantralaya, Mumbai-32.

2.     The Joint Director, Higher Education,
       Nagpur Division, Nagpur.

3.     R.T.M. Nagpur University,
       through its Registrar.

4.     V.M.V. Commerce, J.M.T. Arts
       and J.J.P. Science College,
       Wardhaman Nagar, Nagpur,
       through its Principal.                                                        RESPONDENTS

                     Shri R.R. Srivastava, counsel for the petitioner.
     Mrs. Mrunal Naik, Assistant Government Pleader for the respondent nos.1 and 2.
                   Mrs. A.P. Shinde, counsel for the respondent no.3.
                   Shri S.V. Purohit, counsel for the respondent no.4.

                                       CORAM :SMT.VASANTI  A  NAIK AND
                                                     A.D. UPADHYE, JJ.                  

DATE : 15 TH JUNE, 2017.

ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)

By this writ petition, the petitioner challenges the order of the

respondent no.2-The Joint Director of Higher Education, dated

11.04.2011 seeking the recovery of an amount of Rs.4,08,364/- paid to

the petitioner in view of the wrongful fixation of his pay-scale. The

petitioner has sought a direction against the respondents to pay the salary

to the petitioner in the pay-scale, as fixed by the recommendations of the

6th Pay Commission.

WP 2913/11 2 Judgment

2. The petitioner was appointed as a Librarian in the

respondent no.4-College on 14.09.1975. At the time of his

appointment, the petitioner had only passed M.A. first year

examination in economics. In the same year, i.e. 1975, after his

appointment, he secured the M.A. Degree in third class. In view of the

Government Resolution dated 18.09.1980, the petitioner was placed in

the pay-scale of Rs.700-1300 and not in the pay-scale of Rs.700-1600 as

at the relevant time, though the petitioner had secured the M.A. degree,

he had not passed the examination in the first or second class. As per the

Government Resolution dated 27.02.1989, the Librarians that were

holding the pay-scale of Rs.700-1300 were held to be eligible for the pay

in the scale of Rs.2200-3700 and the petitioner started receiving the pay

in that scale with effect from 01.01.1986 as per the said Government

Resolution. The petitioner improved his qualifications and secured M.A.

degree in Pali and Prakrit in 1991 in first division. Relying upon the

Government Resolution dated 27.02.1989, where Librarians who

possessed the post graduate degree in first or second division were

entitled to the pay-scale of Rs.700-1600 that was revised to Rs.3000-

5000, the petitioner made a request to the respondents to fix his pay in

the scale of Rs.3000-5000 in view of the fact that he had improved the

qualification in the year 1991. On the request of the petitioner, the pay of

the petitioner was re-fixed at Rs.3000-5000 with effect from 01.01.1986.

The fixation of the pay of the petitioner in the said scale was approved by

WP 2913/11 3 Judgment

the Joint Director as well as the placement committee. The wrongful

fixation of the pay-scale was not noticed by the respondents till 2011 and

after finding that a serious mistake was committed in fixation of the pay

of the petitioner in the scale of Rs.3000-5000, by the impugned

communication, dated 11.04.2011, the respondents sought the recovery

of Rs.4,08,364/- that was paid to the petitioner in excess. The said

communication is impugned by the petitioner in the instant petition.

3. Shri Srivastava, the learned counsel for the petitioner,

submitted that as per the Government Resolution dated 18.09.1980, a

Librarian possessing a post graduate degree plus a degree or diploma in

Library Science was entitled to the pay-scale of Rs.700-1300. It is

submitted that for grant of the said pay-scale, the employee was not

required to possess a post graduate degree in the first or second division.

It is submitted that the Librarians possessing a post graduate degree in

first or second division with a diploma were entitled to the pay-scale of

Rs.700-1600. It is submitted that the pay of the petitioner was rightly

fixed in the scale of Rs.700-1300 as per the Government Resolution dated

18.09.1980. It is submitted that the petitioner improved his qualifications

in the year 1991 and after improving his qualifications and after securing

a post graduate degree in the first division, he made a representation to

the respondents to grant him the pay in the scale of Rs.3000-5000 as was

payable to the Librarians that were receiving the pay in the scale of

WP 2913/11 4 Judgment

Rs.700-1600 before 01.01.1986. It is submitted that by the Government

Resolution dated 27.02.1989, the Librarians who possessed the post

graduate degree in first or second division and a certificate in Library

Science were entitled to the pay in the scale of Rs.3000-5000. It is

submitted that though the petitioner secured the post graduate degree in

the year 1991 in the first division, the petitioner was entitled to a higher

pay-scale as was applicable to a Librarian possessing a post graduate

degree in first class with effect from 01.01.1986. It is stated that once a

Librarian improves the qualification and secures the qualification required

for a particular pay-scale in terms of the Government Resolution dated

27.02.1989, he would be entitled to the higher pay-scale with effect from

01.01.1986. It is submitted that the respondents were not justified in

holding that the petitioner was entitled to a higher pay-scale only from

the date on which he improved his qualification in the year 1991. It is

submitted that though the petitioner had made a representation for grant

of higher pay-scale after improving his qualifications, the said

representation was duly considered by the respondents and all the

concerned departments had approved the claim of the petitioner for grant

of higher pay-scale with effect from 01.01.1986 on the basis of higher

qualification that were secured in the year 1991. It is submitted that the

petitioner had not misrepresented to the respondents and grave and

irreparable loss would be caused to the petitioner if the order seeking the

recovery is implemented. The learned counsel relied on the judgment in

WP 2913/11 5 Judgment

the case of State of Punjab & Others Versus Rafiq Masih (Whitewasher)

reported in (2014) 8 SCC 883 to substantiate his submission that the

recovery of the amount wrongfully paid to an employee in excess cannot

be made after the retirement of the employee. The learned counsel also

relied on an unreported judgment of this Court, dated 05.07.2004 in Writ

Petition No.5886 of 1996.

4. Mrs. Naik, the learned Assistant Government Pleader

appearing on behalf of the respondent nos.1 and 2, has supported the

order of the Joint Director of Higher Education. It is submitted that as

per the Government Resolution dated 18.09.1980, only the Librarians

that possessed the post graduate degree in first or second division were

entitled to the pay-scale of Rs.700-1600. It is submitted that since the

petitioner did not possess a post graduate degree in first or second

division, he was rightly placed in the pay-scale of Rs.700-1300 in

pursuance of the Government Resolution dated 18.09.1980. It is stated

that the scales were revised in pursuance of the Government Resolution

dated 27.02.1989 as per the recommendations of the pay commission and

the Librarians that were receiving the pay in the scale of Rs.700-1300

were entitled to receive the pay in the scale of Rs.2200-3700 as per the

said Government Resolution with effect from 01.01.1986. It is submitted

that the pay of the petitioner was rightly fixed in the scale of Rs.2200-

3700 with effect from 01.01.1986. It is submitted that the petitioner

WP 2913/11 6 Judgment

improved his qualifications in the year 1991 and secured a Master's

Degree in first division. After securing the Master's Degree, the petitioner

was entitled to the higher pay-scale as per the Government Resolution

dated 27.02.1989 with effect from the date on which he improved his

qualifications, in the scale of Rs.3000-5000. It is submitted that the

petitioner, however, made a representation to the respondents that his

pay may be fixed in the scale of Rs.3000-5000 with effect from

01.01.1986 as per the Government Resolution dated 27.02.1989 though

he had improved his qualification in the year 1991 and was entitled to a

higher pay-scale only from the said date. It is submitted that acting upon

the representation of the petitioner, the Joint Director of Higher

Education and the other concerned authorities revised the pay of the

petitioner and placed him in the scale of Rs.3000-5000 with effect from

01.01.1986. It is submitted that a serious error was committed by the

authorities in granting a higher pay-scale to the petitioner from

01.01.1986 though he had improved his qualification only in the year

1991. It is submitted that the mistake continued for a long time till the

Joint Director realised the same after it was pointed out to the authority

and issued the impugned communication seeking the recovery of

Rs.4,08,364/- from the petitioner. It is submitted that the pay of the

petitioner was wrongfully fixed by the Joint Director of Higher Education

with effect from 01.01.1986 on the representation of the petitioner

himself. It is submitted that since the pay of the petitioner was

WP 2913/11 7 Judgment

wrongfully fixed at a higher scale only on the basis of the representation

of the petitioner, the petitioner cannot be heard to say that the recovery

of the amount cannot be made as hardship would be caused to the

petitioner. The learned Assistant Government Pleader submitted that the

judgments in the cases of State of Punjab & Others Versus Rafiq Masih

(Whitewasher) reported in (2014) 8 SCC 883 and Syed Abdul Qadir &

Others Versus State of Bihar & Others reported in (2009) 3 SCC 475

would apply only to the cases where the wrongful fixation of the pay and

the payment of salary to the employee in excess is not at the behest of the

employee. It is submitted that the judgment of the Hon'ble Supreme

Court would apply only to the cases where the employee has no role to

play in the wrongful fixation of the higher pay-scale. It is submitted that

in this case, as soon as the petitioner secured higher qualifications in the

year 1991, he made a representation for fixation of his pay in the scale of

Rs.3000-5000 with effect from 01.01.1986 though he was entitled to the

fixation of pay in that scale only from the date on which he acquired the

post graduate degree in first division. It is submitted that the principles

laid down in the judgment in the case of Rafiq Masiah (Supra) on which

great reliance is placed by the counsel for the petitioner would apply only

to the cases where the payment of the excess amount is not based on the

misrepresentation by an employee. It is stated that the petitioner was not

entitled to a higher pay-scale with effect from 01.01.1986 but, the

petitioner wrongfully claimed the fixation of his pay in the higher scale

WP 2913/11 8 Judgment

with effect from 01.01.1986. It is submitted that in the instant case, the

petitioner would not be entitled to seek the benefit of the judgment in the

case of Rafiq Masiah (Supra) as the same cannot be made applicable to a

case where the wrongful fixation of the pay-scale is based on the request

of the employee himself. The learned Assistant Government Pleader

sought for the dismissal of the writ petition.

5. It appears on hearing the learned counsel for the parties that

the Joint Director of Higher Education did not commit any error in re-

fixing the pay of the petitioner after realizing the mistake committed by

the authorities in fixing the pay-scale of the petitioner on the basis of the

representation made by the petitioner. The petitioner possessed a post

graduate degree and a diploma in Library Science when he was appointed

as a Librarian in the respondent no.4-College in the year 1975. As per the

Government Resolution dated 18.09.1980, the Librarians that possessed

the post graduate degree in first or second division and a diploma in

Library Science were entitled to receive the pay-scale of Rs.700-1600

whereas the Librarians who did not possess a post graduate degree in first

or second division but, possessed a post graduate degree and a certificate

in Library Science were entitled to be placed in the pay-scale of Rs.700-

1300. As per the Government Resolution dated 18.09.1980, the

petitioner rightly started receiving the pay in the pay-scale of Rs.700-

1300. As per the recommendations of the 4 th Pay Commission, the

WP 2913/11 9 Judgment

Government issued a resolution dated 27.02.1989 whereby appropriately

revising the pay-scale of the employees, including the Librarians. As per

the Government Resolution dated 27.02.1989, the Librarians that

possessed the post graduate degree in first or second division and were

earlier placed in the pay-scale of Rs.700-1600 were entitled to receive the

pay-scale of Rs.3000-5000 whereas the Librarians who did not possess a

post graduate degree in first or second division and who were receiving

the pay-scale of Rs.700-1300, were entitled to be placed in the pay-scale

of Rs.2200-3700 with effect from 01.01.1986. By rightly applying the

Government Resolution to the case of the petitioner, the pay-scale of the

petitioner was enhanced and the petitioner started receiving the pay in

the pay-scale of Rs.2200-3700 with effect from 01.01.1986 as he was

earlier receiving the pay-scale of Rs.700-1300. The petitioner improved

his qualification in the year 1991 and then became entitled to the pay-

scale of Rs.3000-5000. The respondents decided to grant the higher pay-

scale to the petitioner from the date on which he improved his

qualifications and secured the post graduate degree in first division. The

petitioner, however, made a representation to the respondents that he

should be placed in the pay-scale of Rs.3000-5000 with effect from

01.01.1986 as per the Government Resolution, dated 27.02.1989 as he

has improved his qualifications and secured a Master's degree in first class

in 1991. As per the Government Resolution, the petitioner would not

have been entitled to a higher pay in the pay-scale of Rs.3000-5000 with

WP 2913/11 10 Judgment

effect from 01.01.1986 though he had secured better qualification which

would have entitled him to a higher pay-scale only in the year 1991. The

petitioner, however, made a representation seeking the pay in the scale of

Rs.3000-5000 on the basis of the Government Resolution dated

27.02.1989 with effect from 01.01.1986 to which he was not entitled.

For the reasons best known to the respondents the pay of the petitioner

was fixed in the scale of Rs.3000-5000 with effect from 01.01.1986 on his

representation. The respondents surely committed an error in granting a

pay to the petitioner in the scale of Rs.3000-5000 with effect from

01.01.1986 albeit, on his own representation. It took a lot of time to the

respondents to realize this mistake and on the retirement of the

petitioner, the respondents sought to recover the amount of Rs.4,08,364/-

that was wrongfully paid to the petitioner in excess. It is apparent from a

reading of the Government Resolution dated 27.02.1989 that the

petitioner could not have claimed higher pay in the scale of Rs.3000-5000

with effect from 01.01.1986 though he had improved his qualification

which would have entitled him to a higher pay-scale only in the year

1991. The petitioner would have been entitled to a higher pay-scale only

from the date on which he secured the higher qualification. However, on

the representation made by the petitioner, which would surely be a

misrepresentation, the pay of the petitioner was fixed in the scale of

Rs.3000-5000 with effect from 01.01.1986. We do not find any error in

the action on the part of the Joint Director of Higher Education in seeking

WP 2913/11 11 Judgment

the recovery of the amount of Rs.4,08,364/- that was wrongfully paid to

the petitioner in excess. We find much force in the submission made on

behalf of the respondent nos.1 and 2 that the petitioner would not be

entitled to the entire relief on the basis of the judgment in the case of

Rafiq Masiah (Supra) on which great reliance is placed by the learned

counsel for the petitioner. The judgments in the cases of Syed Abdul

Qadir and Rafiq Masiah would apply only to the cases where the employer

wrongfully pays some amount to the employee in excess and in that

wrongful payment of amount in excess, the employee has no role to play.

In the instant case, though it is apparent from the Government Resolution

dated 27.02.1989 that the petitioner would have been entitled to a higher

pay in the scale of Rs.3000-5000 only from the date on which he acquired

the post graduate degree in first division, the petitioner made a

representation to the respondents seeking higher pay-scale with effect

from 01.01.1986. The action on the part of the respondents in fixing the

pay of the petitioner in the higher pay-scale is based on the representation

of the petitioner, which was clearly wrongful. The petitioner should not

have asked for higher pay-scale with effect from 01.01.1986 though he

had secured the qualification, by which he would have been entitled to a

higher pay-scale in the year 1991. We cannot say that the respondents

were only at fault in granting higher pay-scale to the petitioner from the

year 1986. The petitioner was equally at fault in claiming a higher pay-

scale to which he was not entitled in pursuance of the Government

WP 2913/11 12 Judgment

Resolution dated 27.02.1989 with effect from 01.01.1986. Merely

because the amount was paid to the employee for a period of more than

five years, would not be enough for applying the principles laid down in

the judgment in the case of Rafiq Masiah. The principles laid down in the

judgment in the case of Rafiq Masiah would apply only to the cases where

the employer wrongfully pays the salary to the employee in excess and it

is not based on the misrepresentation of the employee that the wrongful

salary is paid. Such observations clearly find place in the judgments in

the cases of Syed Abdul Qadir (Supra) and Rafiq Masiah (Supra). Since

the amount is wrongfully paid to the petitioner, the petitioner cannot be

heard to say that the same cannot be recovered from him at the time of

his retirement or just after his retirement, at all. However, by considering

the fact that the amount was wrongfully paid to the petitioner for a

period of nearly twenty years, in the circumstances of the case, when the

respondent authorities have also committed the mistake long time back,

in the wrongful fixation of the pay-scale of the petitioner, we intend to

permit the respondents to only recover 50% of the amount that is sought

to be recovered from the petitioner.

6. Hence, for the reasons aforesaid, the writ petition is partly

allowed. The order of recovery passed by the Joint Director of Higher

Education is modified. The respondent no.2-Joint Director of Higher

Education is directed to recover 50% of the amount that is sought to be

WP 2913/11 13 Judgment

recovered from the petitioner. It is informed by the learned Assistant

Government Pleader and the learned counsel for the petitioner that the

amount is paid by the State Government to the college but, since the

college has not released the amount that is sought to be recovered from

the petitioner in view of the operation of the interim relief, we direct the

respondent no.4-College to return 50% of the amount that is sought to be

recovered from the petitioner to the respondent nos.1 and 2 and release

50% of the amount in favour of the petitioner.

Rule is made absolute in the aforesaid terms with no order as

to costs.

              JUDGE                                           JUDGE

APTE