Dr. Marulkar V. S. And Anr vs The State Of Maharashtra And Anr
2017 Latest Caselaw 3699 Bom

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               IN THE  HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION


                               WRIT PETITION NO. 10526 OF 2014


1. Dr. Marulkar V.S.
Age 65 yrs., Occ. Retired,
R/o. Vishwakarma Residency,
Flat No. 208, 7th Lane Rajarampuri,
KOLHAPUR - 416 008.

2. Dr. Kumbhar A.P.
Age 67 Yrs., Occ. Retired,
R/o. Plot No. 5, Dhansashri Colony,
Near KBP HSG Society,
Godoli, SATARA - 415 001                                               ...        Petitioners

                     Vs.
1. The State of Maharashtra 
Through its Secretary of Ministry of
Higher and Technical Education,
Mantralaya, Mumbai 400 032.

2. The Director of Education
(Higher Education)
Maharashtra State Central Building,
Pune 411 001                                                           ...        Respondents 
                               WITH
                                WRIT PETITION NO. 3787 OF 2015


1. Shri R.R. Sapre & Ors.
Age Adult, Occ. Retired,
R/o. 14, Ashwini Nagar, Sagarmal,
Kolhapur - 416 008                                                     ...         Petitioners



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                Vs.
1. The State of Maharashtra
Through its Secretary of Ministry 
of Higher and Technical Education,
Mantralaya, Mumbai 400 32.

2. The Director of Education, (Higher
Education), Maharashtra State Central
Building, Pune 400 001                                                  ...  Respondents

Mr. S.R. Ganbavale, i/b Mr. Sangramsinh Yadav, Adv. for Petitioners in 
both Writ Petitions.
Mr.   V.N.   Sagare,   AGP   for   Respondents   Nos.   1   &   2   in   both   Writ 
Petitions. 

                                                        CORAM  :  B.R. GAVAI AND
                                                                     RIYAZ I. CHAGLA, JJ.

DATE : 28 JUNE 2017.

J U D G M E N T :- (Per Riyaz I. Chagla J.)

1. The Petitioner No.1 was a teacher working in SNDT

Women's University Mumbai and Petitioner No.2 was working in the

college affiliated to Shivaji University, Kolhapur in Writ Petition No.

10526 of 2014. The Petitioners in Writ Petition No. 3787 of 2015

were the teachers working in the colleges affiliated to Shivaji

University.

2. The Petitioners in these Petitions are seeking a refund of

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the stagnation increments together with all consequential benefits and

interest which had been deducted by the Respondents from the

pension accounts of the Petitioners together with further interest of

12% p.a. The Petitioners had been granted these stagnation

increments by the Respondent No.1, which were recovered from them.

The Respondents had recovered these amounts which according to

them were payable to all government servants under Government

Resolution dated 25th January 1999 and according to the Respondent,

the GR nowhere mentioned that this would be applicable to the

teaching faculty. In continuation of the GR dated 25th January 1999,

the Government of Maharashtra had issued another GR dated 14th

September 1999 making the stagnation increments payable to the

employees of the universities and its affiliated colleges. However, the

Respondents maintain that the scheme for grant of stagnation

increments were not made applicable to the teachers of the

universities and its affiliated colleges in Maharashtra. A further GR

dated 11th December 1999 was issued by Respondents which made

the 5th Pay Scales applicable to the teaching staff of the university and

colleges affiliated to the universities. According to the Respondents,

the GR dated 11th December 1999 also made no provision to apply

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the benefit of the stagnation increments to the teaching staff. The

Respondent No.1 accordingly issued communications dated 10th

March 2008 and 18th March 2010, wherein the various amounts paid

to the Petitioners and other such superannuated teachers were

recovered by the Respondents.

3. The Association of College and University Superannuated

Teachers (Maharashtra) had filed two Writ Petitions being Writ

Petition Nos. 9054 of 2010 and 2868 of 2011 in this Hon'ble Court

(Bench at Aurangabad). The said Writ Petitions were disposed of by a

judgment and order dated 22nd August 2011 passed by the Division

Bench, which included one of us as a member of the Bench. In the said

judgment and order, it was held that recovery of pension amount from

an employee cannot be made, if the amount in excess was paid to

such an employee for the reason not attributed to such an employee.

In that case, the stagnation amount was not paid to the members of

the Petitioner - Association on account of any misrepresentation made

by such members. The Division Bench in that case had relied upon

the view laid down by the Apex Court in Sayed Abdul Qadir Vs. State

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of Bihar1 and allowed both the Petitions. The impugned

communications dated 10th March 2008 and 18th March 2010 have

been quashed and set aside. The Respondents were in that case

directed to return to the Petitioners the amounts which were deducted

within a period of three months from the date of order and judgment

along with interest @ 12% p.a. The Petitioners in the said Writ

Petitions had filed a Special Leave Petition ("SLP") challenging the

order and judgment dated 22nd August 2010 whilst the SLP was

pending, the Petitioners therein filed Contempt Petition No. 513 of

2011 and 519 of 2011. In the contempt petition, the Respondent No.1

was directed to deposit certain amount before this Court by an order

dated 24th February 2012 and the amount was deposited by the

Respondents on 12th March 2012. An Affidavit had been filed in the

Contempt Petition by the Principal Secretary, Higher Education

department tending apology and subsequently making a statement

that the order and judgment dated 22nd August 2011 would be

complied with. A GR dated 3rd August 2012 and an order dated 6th

August 2012 was passed by Respondents Nos. 1 and 2 complying with

the order of this Court which directed refund to the Petitioners in said

1 (2009) 3 Supreme Court Cases 475.

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Writ Petitions. The SLP also came to be dismissed by order dated 9th

May 2012.

4. The Petitioners have stated that despite the order and

judgment dated 22nd August 2011, Respondent No.1 although

making payments to the members of the Petitioners in Writ Petition

No. 9054 of 2010 and 2868 of 2011, did not take steps to pay the

other similar placed persons. Shivaji University Teachers Association

(SUTA) had approached this Court by way of filing Writ Petition No.

1106 of 2013. This Court had allowed the Petition by order dated 13th

August 2011. The Petitioners, however, submits that no steps were

taken by the Respondents to refund the recovered amounts to the

present Petitioners. It is because of the discriminatory approach of the

Respondents, that the Petitioners were constrained to approach this

Court by the present Petitions.

5. The counsel appearing for the Petitioners has contended

that the the order and judgment dated 22nd August 2011, wherein

the identical issue was involved will apply to the present Petitioners

who also challenge the wrongful recovery by the Respondents of the

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stagnation increments paid to the Petitioners and which was deducted

from the pension accounts. The stagnation increments had also been

recovered by the Respondents vide communications passed on 10th

March 2008 and 18th March 2010. These impugned communications

were quashed and set aside by the order and judgment dated 22nd

August 2011.

6. The Respondents have in their reply stated that in

compliance with the order of this Court in Writ Petition Nos. 9054 of

2010 and other identical Writ Petitions, the office of Joint Director,

Higher Education will calculate the due amount of the Petitioners and

will submit it to the office of the A.G. Nagpur for release the same.

7. We are of the considered view that the order and

judgment dated 22nd August 2011 squarely applies to the present

Petitions and that reliance is similarly placed on the Apex Court

judgment in the case of Sayed Abdul (Supra) and particularly since

the impugned communications dated 10th March 2008 and 18th

March 2010 of the Respondents pursuant to which they had recovered

the stagnation increments from the Petitioners have been quashed and

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set side by the order and judgment dated 22nd August 2011, the

present Petitions are allowed, by passing following order.:-

O R D E R

a) It is held and declared that the recovery of the amount paid to the Petitioner on account of stagnation increment is bad in law and therefore, quashed and set aside.

b) The amount recovered from the pension of the Petitioners is directed to be refunded to the Petitioners within a period of three months from today, along with interest @ 12% p.a. thereon.

c) There shall be no order as to costs.

           (RIYAZ I. CHAGLA J.)                                        ( B.R. GAVAI J.)