Bombay High Court
Ramkrishna Narayan Ghuge vs The State Of Maharashtra And Ors on 4 September, 2017
Bench: R.D. Dhanuka
WP 1961-2006
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 1961 of 2006
Ramkrishna S/o Narayan Ghuge,
age 47 years occupation service
R/o 7-A "Dnyaneshwari" Samarth Nagar,
Ambad Road, Jalna, Taluka and District Jalna.
... PETITIONER
VERSUS
1. The State of Maharashtra
Through: Govt. Pleader Office,
High Court of Judicature at Bombay,
Bench at Aurangabad, for Secretary,
General Administration Department,
Mantralaya, Mumbai - 32.
2. The Secretary,
Rural Development and Water Conservation Department,
Mantralaya, Mumbai - 32.
3. Chief Executive Officer,
Zilla Parishad, Jalna.
... RESPONDENTS.
Shri D.R. Irale Patil, Advocate for the petitioner.
Shri A.R. Borulkar, Asstt. Govt. Pleader for respondents No.1 & 2.
Shri A.S. Deshpande, Advocate for respondent No.3.
CORAM: R.D. DHANUKA &
SUNIL K. KOTWAL, JJ.
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2
RESERVED ON : 18
th
August, 2017 .
PRONOUNCED ON : 1 September 2017
st
JUDGMENT (PER R.D. DHANUKA, J.)
By this petition filed under Article 226 of the Constitution
of India, petitioner seeks Writ of Certiorari, inter-alia, for quashing
and setting aside the impugned order dated 18 th May 2002 passed
by the Desk Officer, Rural Development and Water Conservation
Department, Mantralaya, Mumbai, 400 032, rejecting the proposal
submitted by the Chief Executive Officer, Zilla Parishad, Jalna, for
granting exemption under Rule 10 of the Maharashtra Civil Services
(Compulsory Marathi Shorthand and Marathi Typing Examinations for
English Stenographers and English Typists) Rules, 1991, (for short
"The said Rules") to the petitioner from passing the Marathi
Shorthand Examination. The petitioner also seeks an order and
direction against respondent No.2 i.e. the Secretary, Rural
"Development and Water Conservation Department, Mantralaya,
Mumbai, to consider the proposal submitted by the Zilla Parishad,
vide letter dated 12th February 2002, and to grant exemption to the
petitioner from passing Marathi Shorthand Examination under Rule
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10 of the said Rules.
2. Some of the relevant facts for the purpose of deciding
this petition are as under:
The date of birth of the petitioner is 7 th June 1959. He
completed the Trade Test in the Trade of Stenography-English 40 /
80 words per minute on 19th July 1981.
3. It is the case of the petitioner that the Zilla Parishad,
Jalna, had made a requisition with Employment Exchange for filling
of various posts. The name of the petitioner was sponsored by the
Employment Exchange to the Chief Executive Officer, Zilla Parishad,
Jalna, for the post of Steno Typist. The petitioner was interviewed
and was selected by respondent No.3 as a Steno-Typist with an
appointment order dated 23rd September 1982. The State of
Maharashtra has framed Recruitment Rules i.e. "Maharashtra Zilla
Parishads District Services (Recruitment) Rules, 1967", for the
purpose of appointment of staff on the establishment of Zilla
Parishad. Rule 5 of the said Rules of 1967 provides for method of
appointment including the qualification and other requirements.
Under the Appointment Rules, the prescribed qualification for the
post of Steno-Typist was Secondary School Certificate or any
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equivalent Examination and that candidate shall possess certificate
of speed of not less than 80 words per minute in English or Marathi
Shorthand and not less than 40 W.P.M. In English Typewriting and
30 W.P.M. in Marathi Typewriting.
4. The petitioner was confirmed on the initial post held by
him under an order dated 16th May 1995 issued by the Zilla Parishad.
5. Sometime in the year 1991, the State of Maharashtra
framed the said Rules. Rule 4 of the said Rules provides for the
period for passing examination. Rule 4(i), which applies to the facts
of this case, is reproduced as under:
"4. Period for passing examination -
(i) The English Stenographer or English Typist,
who has passed the Secondary School Certificate
Examination with Marathi (Higher Standard) as the
first language,
(a) who are already in the service of the
Government on the commencement date, shall pass
the examination prescribed in Rule 3 within four years
from the commencement date;
(b) who are recruited after the commencement
date, shall pass the examination prescribed in Rule 3
within four years from the date of joining the
Government service."
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6. Rule 4(ii) is relied upon by the petitioner during the
course of his argument and is accordingly reproduced as under:
"(ii) The English Stenographer or English Typist who
has passed the Secondary School Certificate
Examination but not with Marathi (Higher Standard) as
the first language.
(a) who are already in the service of the
Government on the commencement date, shall pass
the examination prescribed in Rule 3 within six years
from the commencement date;
(b) who are recruited after the commencement
date, shall pass the examination prescribed in Rule 3
within four years from the date joining the Government
service."
7. Rule 8 of the said Rules provide that English
Stenographer/Typist shall be exempted from passing the
examinations if he/she has attained the age of 50 years on the
commencement date or when he/she attains the age of 50 years.
Rule 10 provides as under:
" Notwithstanding anything contained in these rules,
Government may relax provisions of any of these
rules, under special circumstances in such manner as
shall appear to it to be just and reasonable, and shall
record the reasons for any such relaxations."
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8. Rule 2 provides that the said Rules shall come into force
on the date of publication of said Notification. Said Notification was
published in the Government Gazette on 13th June 1991.
9. On 18th December 1996, the Director of Language,
Maharashtra State, Mumbai, issued another Circular prescribing that
unless a English Stenographer or English Typist attains 50 years,
cannot be exempted from passing Marathi Shorthand and Typing
Examination.
10. It is the case of the petitioner that taking into
consideration his outstanding career, the Zilla Parishad granted two
advance increments to the petitioner under order dated 7 th January
2000. It is also the case of the petitioner that on 1 st August 2001, the
petitioner met with an accident due to which his shoulder joint of
right hand had been dislocated and he became helpless for doing
any extra work other than the works actually allotted to him in the
office by the Zilla Parishad. The case of the petitioner was referred
for examination to the Civil Surgeon, Jalna, by the Zilla Parishad.
The Civil Surgeon, Jalna, after examining the petitioner, issued a
certificate dated 20th March 2002 recommending that the petitioner
could not bear additional work due to said accident. It is the case of
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the petitioner that in view of the said accident, his right hand could
not bear extra work and, thus, the petitioner could not undertake
extra efforts to make practice and to get successful in the Marathi
Shorthand Examination as required under the said Rules. The Rural
Development Department issued an order dated 29th January 1992
and incorporated the said Rules and made applicable to the Zilla
Parishad employees.
11. By a letter dated 15th January 2002 the petitioner made a
representation to the Zilla Parishad and requested that his proposal
may be moved with the Government for getting exemption from
passing Marathi Shorthand Examination. It is case of the petitioner
that Zilla Parishad thereafter examined the certificate issued by the
Medical Authority in favour of the petitioner and submitted a proposal
to the Government on 12th February 2002 in compliance with
Government Letter dated 27th December 2001 and justified that it
was not possible to the petitioner to pass the Marathi Shorthand
Examination due to dislocation in his shoulder.
12. By an order dated 18th May 2002, the Desk Officer, Rural
Development and Water Conservation Department, rejected the said
proposal made by the Zilla Parishad to grant exemption to the
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petitioner to appear for Marathi Shorthand Examination. Being
aggrieved by the said order dated 18th May 2002 passed by
respondent No.2, the petitioner filed this petition for various reliefs.
13. Mr D.R. Erale Patil, learned Counsel for the petitioner,
invited our attention to various Annexures to the Writ Petition,
including the letter of appointment of the petitioner as Steno Typist
and the Rules laying down the qualifications of candidates for
methods of appointment to posts included in the District Service
(Class III) (Ministerial) and District Service (Class III) (subordinate
Ministerial) and, in particular, Rule 6 thereof.
14. It is submitted by the learned Counsel for the petitioner
that under the Maharashtra Zilla Parishads District Services
(Recruitment) Rules, 1967, various conditions were prescribed for
appointment including the qualifications for appointment to various
posts. He submits that the petitioner had already complied with
those qualifications prescribed under those Rules 1967, when the
petitioner was appointed under order dated 21st September 1982.
15. It is submitted by the learned Counsel that though the
petitioner appeared for the Marathi Shorthand and Typing
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Examination, the petitioner could not pass the said examination
though appeared twice. The petitioner, however, had met with an
accident in the year 2001. He submits that case of the petitioner was
referred to the Civil Surgeon by the Zilla Parishad to opine that in
view of accident, the petitioner was not in a position to bear any
additional burden. He submits that based on the said report
submitted by the learned Civil Surgeon, the Zilla Parishad had made
recommendation to the Government to grant exemption to the
petitioner to pass Marathi Shorthand and Typing Examination under
the said Rules.
16. It is submitted that respondent No.2 could not have
ignored the opinion of the Civil Surgeon and could not have taken a
different view while rejecting the proposal for exemption made by the
Zilla Parishad. Learned Counsel invited our attention to Rule 4(ii) of
the said Rules and would submit that the petitioner could have
passed such examination within six years from the date of
commencement of the said Rules. He submits that under Rule 10 of
the said Rules, in view of the petitioner having been met with an
accident and was not able to bear with any additional burden, the
petitioner had made out the case of special circumstance under Rule
10 and, thus, respondent No.2 was under obligation to relax the
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provisions under those rules prescribing for passing Marathi
Shorthand and Typing Examinations by the petitioner. He submits
that petitioner could have applied for such exemption under Rule 10
though the petitioner was not successful in those examinations
though appeared twice within the period of six years from the
commencement date.
17. The learned Counsel for the petitioner invited our
attention to Rule 8 of the said Rules, which provides that the English
Stenographer/Typist shall be exempted from passing examinations if
he/she attained the age of 50 years from the commencement date or
when he/she attains age of 50 years and submits that there was a
discrimination between the petitioner, who was below the age of 45
years when the said Rules came into force and between the English
Stenographers/Typists, who had attained age of 50 years on the
commencement of the said Rules.
18. Learned Counsel for the petitioner submits that on 12th
July 2016 the petitioner has already taken voluntary retirement from
service and amount payable to the petitioner has already been
quantified by the Zilla Parishad. He has been also paid various
service dues upon the voluntary retirement applied for by the
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petitioner and sanctioned by the Zilla Parishad. Learned Counsel
invited our attention to the order dated 26 th June 2006 passed by this
Court while admitting this Writ Petition and granting ad-interim relief
in terms of Prayer Clause "D" of the Writ Petition. He submits that by
virtue of the said ad-interim relief granted by this Court in terms of
Prayer Clause "D", the implementation of the order dated 18 th May
2002 passed by respondent No.2 is stayed and simultaneously the
Zilla Parishad was directed to relieve the withheld increments to the
petitioner. He submits that in view of the said ad-interim relief
passed by this Court, which has attained finality in view of the
respondents not having impugned the said ad-interim relief passed
by this Court, respondent No.3 has released withheld increments to
the petitioner till the petitioner took voluntary retirement from his
services.
19. It is submitted by the learned Counsel that since the
petitioner has already taken voluntary retirement and since
respondent No.3 has already released the withheld increments to the
petitioner after ad-interim order passed by this Court, even if the
petitioner does not succeed in this Writ Petition, respondent No.3
cannot be allowed to make recovery of any amount from the
petitioner from the pension amount payable to the petitioner at this
stage. He submits that whatever benefit is already accrued to the
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petitioner by way of release of withheld increments, which were paid
to the petitioner till he was allowed to take voluntary retirement, the
same cannot be recovered from the petitioner and, more particularly,
from the pension amount payable to the petitioner. In support of this
submission, the learned Counsel for the petitioner placed reliance on
following Judgments of the Hon'ble Supreme Court.
(I) State of Punjab and Others Versus Rafiq Masih
(White Washer) and others {(2015) 4 Supreme Court
Cases 334}, (Paragraph 18),
(II) Purshottam Lal Das and others Vs. The State of
Bihar & others (2006 AIR SCW 5325) (Paragraph 8),
(III) Sushil Kumar Singhal Vs. Pramukh Sachiv Irrigation
Department and others {2014(4) ALL MR 909 (S.C.)}
(Paragraphs 11 and 12),
(IV) Bihar State Electricity Board and another Vs. Bijay
Bhadur and another {(2000) 10 Supreme Court Cases
99} (Paragraphs 10 and 11)
(V) Learned Counsel also placed reliance on the judgment
delivered by the Division Bench of this Court on 28th February 2017 in
case of Gorakhnath Punjaba Ingle Vs. the Chief Executive Officer
and others in Writ Petition No. 8352 of 2015 and, in particular,
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paragraphs 5 to 8.
20. Learned Counsel for the petitioner placed reliance on
Rule 131 of the Maharashtra Civil Services (Pension) Rules, 1982,
and would submit that since the pension amount is already
authorized while accepting the voluntary retirement of the petitioner,
the Zilla Parishad cannot be allowed to revise the said pension
amount by making any recovery of the increments paid by the Zilla
Parishad to the petitioner during the pendency of this Writ Petition.
21. Mr A.S. Deshpande, learned Counsel for respondent
No.3/Zilla Parishad, on the other hand, submits that the said rules
framed in the year 1991 by the State Government in exercise of
powers conferred by Proviso to Article 309 of the Constitution of
India, prescribing conditions for passing the examination of Marathi
Stenography, within the period of four years or six years, as the case
may be, was not with retrospective effect but was framed with
prospective effect. He submits that no vested rights had accrued, if
any, in favour of the petitioner. It is submitted by the learned
Counsel that the case of the petitioner does not fall under Rule 4 (ii)
viz. prescribing six years period for passing the examination,
mentioned therein, in view of the fact that the petitioner had passed
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the requisite Secondary School Certificate Examination with Marathi
language as the first language. He submits that the petitioner was
thus required to pass Marathi Shorthand and Marathi Typing
Examinations, within four years from the commencement date and
not within six years, as canvassed by the petitioner.
22. It is submitted by the learned Counsel for Zilla Parishad
that the period of four years had already expired from the
commencement date sometime in the year 1995. He submits that
the petitioner had already appeared twice for the said examination
within a period of four years from the commencement date, however,
failed. He submits that accident of the petitioner had taken place
sometime in the year 2001 i.e. after expiry of six years from the date
of the petitioner having become disqualified in view of not having
passed the required examination within a period of four years from
the commencement date. He submits that the petitioner had not
become eligible to seek any exemption on the ground of having met
with an accident much later. He submits that in any event, the
petitioner had not made out any case of special circumstance as set
out in Rule 10 for seeking the exemption from passing examination in
Marathi Shorthand and Typing.
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23. It is submitted by the learned Counsel that though the
Zilla Parishad had made a proposal for the exemption of the
petitioner under Rule 10 at the relevant time, the Zilla Parishad is not
prevented from opposing this petition on the ground that no case was
made out by the petitioner under Rule 10 or under any other
provision of the said Rules of 1991.
24. In so far as submissions of learned Counsel for the
petitioner that respondent No.3 already having made payment of the
withheld increments to the petitioner and petitioner having been
allowed to take voluntary retirement, the Zilla Parishad cannot be
allowed to recover any amount of released withheld increments
from the pension amount, is concerned, it is submitted by the
learned Counsel that said amount of withheld increments was
required to be paid by the Zilla Parishad to the petitioner in view of
the interim relief sought by the petitioner in terms of Prayer Clause
"D" in the petition, which was granted by this Court to the petitioner.
He submits that the said amount of withheld increments paid to the
petitioner was not under any mistake on the part of the Zilla
Parishad but was paid in view of the interim order passed by this
Court.
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25. Learned Counsel for Zilla Parishad distinguished various
judgments relied upon by the petitioner on the ground that none of
these judgments would apply to the facts of this case since the
amounts were paid to the petitioner in view of the interim orders
passed by this Court and was not because of any mistake. Learned
Counsel for Zilla Parishad submits that similarly, Rule 131 of the
Maharashtra Civil Services (Pension) Rules, 1982, relied upon by the
petitioner also does not apply to the facts of this case in view of the
fact that the recovery, if any, required to be made by the respondents
from petitioner, is not on account of detection of clerical error
subsequently but is because of the petitioner not having made out
the case in this petition. He submits that the interim order passed by
this Court being subject to the final order passed by this Court, the
provision of Rule 131 of the M.C.S. (Pension) Rules, 1982, does not
apply to the facts of this case.
26. Mr Borulkar, learned Assistant Government Pleader for
respondents No.1 and 2, invited our attention to the impugned order
passed by respondent No.2 recording a finding that the petitioner
was in a position of discharging his duty in regular course inspite of
such an accident and would submit that respondent No.2 was, thus,
right in rejecting the proposal of the Zilla Parishad for granting
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exemption under Rule 10 of the said Rules in favour of the
petitioner. He submits that the petitioner had not made any
application for exemption within the period of four years, within
which he was required to pass the said examination. He submits that
the application for exemption after expiry of four years from the
commencement date was, thus, not even maintainable. He submits
that Rule 8 of the said Rules would not apply to the facts of this case
in view of the fact that petitioner had not attained age of 50 years.
He submits that petitioner was working as Stenographer till the date
of his voluntary retirement i.e. 12th July 2016 without any problem
though he has alleged to have met with an accident in the year 2001.
He submits that the findings recorded by respondent No.2 cannot be
interfered with by this Court.
27. Mr Irale Patil, learned Counsel for the petitioner in
rejoinder submits that the Zilla Parishad itself had recommended to
the respondent No.2 for exemption under Rule 10 of the said Rules.
The case of the petitioner was referred to Civil Surgeon by Zilla
Parishad and, thus, the Zilla Parishad cannot be allowed to take
contrary stand. He submits that the petitioner had already taken
retirement voluntarily and no permission can be granted by this Court
to Zilla Parishad to recover the amount of released withheld
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increments, at this stage.
Reasons and Conclusions :
28) It is not in dispute that the petitioner was appointed on 21
September 1082 as a Steno Typist and was in service when the
State of Maharashtra framed the rules in the year 1991 prescribing
the examination for passing the Marathi Shorthand examination
within the time prescribed by the English Stenographer or English
Typist. Rule 4(1) provided that the English Stenographers or English
Typists who had passed the Secondary School Certificate
Examination with Marathi (Higher Standard) as the first language
and who are already in service of the Government on the
commencement date shall pass the examination prescribed in Rule 3
within 4 years from the commencement date. Rule 2 provided that
the said rules shall come into force on the date of publication of the
said notification which was on 6 May 1991.
29) It is not in dispute that the petitioner had passed his
Secondary School Certificate Examination with Marathi (Higher
Standard) as the first language. In our view Rule 4(1) of the said
Rules framed in the year 1991 by the state of Maharashtra thus
would be applicable to the petitioner and not Rule 4(ii) which
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provided for 6 years time to pass such examination. We are thus not
inclined to accept the submission of the learned counsel for the
petitioner that the petitioner was required to pass such examination
within 6 years from the date of commencement of the said rules.
30) It is also not in dispute that the petitioner had already
appeared for such examination twice within the said period of 4
years from the date of commencement of the said rules and had
failed. It is also not in dispute that on 1 August 2001 i.e. after expiry
of 10 years from the commencement date, the petitioner met with an
accident. The Civil Surgeon had issued a certificate dated 20 March
2002 recommending that the petitioner will not be able to bear
additional work due to said accident. The petitioner continued to
work with respondent No.3 and was performing the work of English
Stenographer till he took voluntary retirement.
31. In so far as the submission of the learned counsel for
the petitioner that the respondent No.3 could not overlook the
certificate issued by the Civil Surgeon certifying that the petitioner
could not have been burdened with additional work in view of his
injury is concerned, in our view there is no merit in this submission
of the learned counsel for the petitioner. The petitioner had already
appeared for the said examination required to be passed under the
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said rules of 1991 twice and had failed within the period of 4 years
from the commencement date. The accident of the petitioner had
admittedly alleged to have taken place after 6 years from the date of
completion of the prescribed period for passing such examination
under the said rules of 1991.
32. In our view even if any such accident had taken place
resulting in the petitioner suffering from any injury, the said accident
had admittedly taken place much after the time prescribed under the
said rules for passing the said examination. We, therefore, do not
find any infirmity in the order passed by the respondent No.3. In our
view since the petitioner had already appeared for the examination
prescribed under the said rules of 1991 without any protest, the
petitioner cannot challenge the validity of the said rules on the
ground that the same were illegal or could not have been made
effective with retrospective effect.
33. Be that as it may, in our view the said rules were not
made effective with retrospective effect. The said rules provided for
sufficient time for appearing in the examination to the petitioner and
other candidates. It was not the case of the petitioner that he could
not have learnt the Stenography in Marathi within the period of 4
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years prescribed under the said rules. He had passed his Secondary
School Certificate examination with Marathi as the first language. He
had already appeared twice in the said examination but failed.
34) In so far as the submission of the learned counsel for the
petitioner that there was discrimination between the petitioner and
other candidates who were granted exemption from appearing from
such examination if any such candidate had attained the age of 50
years from the commencement date or when such candidate attains
the age of 50 years is concerned, in our view there is no substance
in this submission of the learned counsel for the petitioner. In our
view, considering the age of retirement of such Steno Typist, the
condition imposed by the State Government for granting exemption
at the age of 50 years was justified.
35) In so far as the submission of the learned counsel for the
petitioner that the petitioner could have applied for relaxation of the
provision under rule 10 of the said rules though the petitioner had
appeared for the examination and had failed within the prescribed
period of 4 years under rule 4(i) of the said rules is concerned, in our
view there is no merit in this submission of the learned counsel for
the petitioner. In our view, a candidate could have applied for
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exemption or relaxation from any of the rules prescribed under the
said rules including under rule 4(1) for passing examination within 4
years from the date of commencement of the said rules only within
the expiry of 4 years prescribed under the said rules and not
thereafter. It is not the case of the petitioner that the petitioner had
met with an accident within the period of 4 years prescribed under
the said rules for passing said examination.
36. It is not disputed by the petitioner that he had already
appeared twice within the said period prescribed and had failed. In
our view the petitioner was thus not eligible to make any
representation for relaxation or for exemption under rule 10 or any of
the provisions of the said rules under special circumstances or for
any other reasons for seeking exemption from appearing in the said
examination. The period prescribed for the examination had already
expired long back. In our view, Rule 10 of the Rules for seeking
relaxation or exemption from applicability of the said rules was thus
itself could not be attracted to the facts of this case.
37. In our view, application for exemption has to be made
within the time prescribed for passing examination under Rule 4 and
not after expiry of such period even if any special circumstance exists .
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Be that as it may, the petitioner had not made out any case showing
any special circumstance set out in Rule 10 of the said Rules. Rule
10 has to be read with Rule 4 and cannot be read in isolation. Rule
10 cannot be invoked independently but can be invoked only before
expiry of the period prescribed under Rule 4.
38) In so far as the submission of the learned counsel for the
petitioner that the petitioner having been already paid the withheld
increments in view of the interim relief granted by this Court on 26 th
June, 2006 and in view of the petitioner having allowed to take
voluntary retirement and his amount of pension is already sanctioned
and is being paid, the respondent No.3 cannot be allowed to make
any recovery at this stage is concerned, the petitioner placed
reliance on the four judgments of the Supreme Court and one
Judgment of this Court referred to in paragraph 19 of this judgment.
Mr. Deshpande, learned counsel for respondent No.3 has rightly
distinguished those judgments.
39) In so far as the judgment of the Supreme Court in the
case of State of Punjab and Others vs. Rafiq Masih (White Washer)
(supra) relied upon by the learned Counsel for petitioner is
concerned, the Supreme Court has described the circumstances in
which the recoveries from the employees can be impermissible in
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law. Paragraphs 18 of the aid judgment reads thus :
"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 herein above, we may,
as a ready reference, summaries 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.
(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."
40) In our view, none of the circumstances set out in the said
judgment of the Supreme Court, which would prohibit the employers
from making recoveries of any amount from the employee had arisen
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in this case. It was not the case of the petitioner that the respondent
No.3 had made any excess payment to the petitioner due to any
mistake on the part of the respondent No.3. The respondent No.3
had already issued a notice for recovery of the amount from the
amount due to the petitioner. The petitioner, however, filed this writ
petition and applied for interim reliefs. By an interim order dated 20 th
June, 2006, passed by this Court, the respondent No.3 was required
to release the withheld amount of increments to the petitioner. It is
also not the case of the petitioner that the petitioner was due to retire
within one year of the order of recovery passed by the respondent
No.3 or that the excess payment had been made to the petitioner for
the period in excess of 5 years before the order of recovery was
passed by the respondent No.3. In our view the said judgment of the
Supreme Court in the case of State of Punjab (supra) thus is clearly
distinguishable in the facts of this case and would not assist the case
of the petitioner.
41) In so far as the judgment of the Supreme Court in the
case of Purshottam Lal Das (supra) is concerned, the petitioner has
placed reliance on paragraph 8 of the said judgment in which the
judgment of the Supreme Court in the case of Bihar State Electricity
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Board and Another v. Bijay Bhadur and Another (2000) 10 SCCC 99
is adverted. In the case of Bihar State Electricity Board the Supreme
Court had held that if the payments had been made to an employee
without any representation or misrepresentation, the employer
could not possibly be granted any liberty to deduct or recover the
excess amount paid by way of increments at an earlier point of time.
It was clarified by the Supreme Court that the said order was
restricted to the facts of the that writ petition only. It was further
clarified that Regulation 8 would operate on its own and the Board
would be at liberty to take appropriate steps in accordance with law
except in the case or cases which had attained finality. In our view
this judgment is clearly distinguishable in the facts of this case.
42. The respondent no.3 had not made any payment or had not
released increments due to any representation or misrepresentation
made by the petitioner but such payment had been released in
compliance with the interim order passed by this Court in favour of
the petitioner. Thus the judgment in the case of Purshottam Lal Das
(supra) would not assist the case of the petitioner.
43) In so far as the judgment of the Supreme Court in the case of
Bihar Electricity Board and Another (supra) relied upon by the
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learned counsel for the petitioner is concerned, the learned counsel
for the petitioner has placed reliance on paragraph 9 in which the
Supreme Court has adverted to the judgment in the case of Sahib
Ram v. State of Haryana, 1955 Supp (1) SCC 18 holding that since
the payments had been made without any representation or
misrepresentation, no amount of recovery could be effected from the
payments made to the employer. In our view, the said judgment is
clearly distinguishable in the facts of this case in view of the fact that
the payment in respect of increment was released in favour of the
petitioner in view of the interim order passed by this Court and not
based on any representation or misrepresentation made by the
petitioner. The said judgment thus would not assist the case of the
petitioner.
44) In so far as the judgment of the Supreme Court in the case
of Sushil Kumar Singhal (supra) relied upon by the learned counsel
for the petitioner is concerned, the said judgment would be of no
assistance to the petitioner. In the said matter before the Supreme
Court, the employer had sought to recover the amount much after
retirement of the employee on the premise that there was incorrect
fixation of his salary in the year 1986 and the recovery was sought to
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be made in the year 2005.
45) In so far as the unreported judgment delivered by this
Court on 28th February 2017 in the case of Gorakhnath Punajaba
Ingle v. The Chief Executive Officer And Another, in Writ Petition
No.8352/2015 (supra) is concerned, this Court had set aside the
impugned order passed by the employer reverting the petitioner.
With these facts in hand, this Court recorded that it was not disputed
that till retirement of the petitioner, he was paid salary of Civil
Engineering Assistant and accordingly directed the employer to pay
the pension and pensionary benefits to the petitioner in that case.
This judgment also thus would not assist the case of the petitioner.
46. In so far as the reliance placed on rule 131 of the
Maharashtra Civil Services (Pension) Rules, 1982 by the learned
counsel for the petitioner is concerned, a perusal of the said rule
indicates that a bar is provided from revision of pension to the
disadvantage of the pensioner without the concurrence of the
Finance Department if the clerical error of the employer is detected
after a period of 2 years from the date of authorization of pension.
Even the said rule permits the Government to revise the pension if
such revision becomes necessary on account of detection of clerical
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error subsequently even after such pension was authorised after final
assessment subject to the provision of Rules 25 and 26.
47. In our view, the reliance placed on the said rule by the
learned counsel for the petitioner is totally misplaced. The recovery
sought to be made by the respondent No.3 in this case is not based
on any detection of clerical error sought to be made after 2 years
from the date of authorisation of pension but is sought to be made on
the ground that the petitioner had not passed the examination of
Stenography in Marathi within the time prescribed and was thus not
eligible to get the increments. The said Rule, thus, would not assist
the case of the petitioner.
48. In our view, the submission of Mr Deshpande, the
learned Counsel for the respondent No.3 that the interim order
passed by this Court is subject to final order as may be passed in
this Writ Petition is correct. In our view, the interim relief granted by
this Court in terms of prayer clause (D) in favour of the petitioner is
subject to final outcome of this writ petition. Since we are of the view
that the petitioner has not made out any case for any relief as
claimed in the petition, the petitioner is liable to restore back the
benefits availed by the petitioner in view of the interim order passed
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by this Court to the respondent No.3. The amount of increment
which the petitioner was not entitled to recover is, thus, liable to be
returned to the respondent No.3.
49) We, therefore, pass the following order :
(I) Writ Petition No. 1961 of 2006 is dismissed.
(II) Rule is discharged.
(III) Interim relief granted by this Court stands
vacated.
(IV) There shall be no order as to costs.
( SUNIL K. KOTWAL ) ( R.D. DHANUKA )
JUDGE. JUDGE.
pjm
