Bombay High Court
Rangrao Mersing Jadhav vs The State Of Maharashtra And ... on 4 August, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4173 OF 2018
Rangrao s/o Mersing Jadhav,
Age : 59 years, Occupation : Pensioner,
R/o Kamthala, Tq.Kinwat,
District Nanded.
...PETITIONER
-VERSUS-
1) The State of Maharashtra,
through Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai-32.
2) The Chief Executive Officer,
Zilla Parishad, Nanded.
3) The Block Development Officer,
Panchayat Samiti, Kinwat,
Tq.Kinwat, District Nanded.
...RESPONDENT
...
Advocate for the Petitioner : Shri Kulkarni Girish N. (Mardikar)
AGP for Respondent 1 : Shri P.S. Patil
Advocate for Respondents 2 and 3 : Shri Pulkundwar Santosh B.
...
CORAM : RAVINDRA V. GHUGE
&
S.G. MEHARE, JJ.
DATE :- 04th August, 2021
Oral Judgment (Per Ravindra V. Ghuge, J.) :-
1. Rule. Rule made returnable forthwith and heard
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finally by the consent of the parties.
2. By this petition, the petitioner has put forth prayer
clauses B and C as under :-
"(B) By issuing writ of certiorari and or order in like
nature impugned order dated 31.01.2017
bearing Mo.4092-2017 issued by the
respondent No.2 thereby revising pay of the
petitioner may kindly be quashed and set aside.
(C) By issuing writ of mandamus respondents be
directed to refund an amount of Rs.3,46,931/-
(three lacs forty six thousand nine hundred
thirty one only) along with interest to the
petitioner within stipulated period."
3. The petitioner has preferred this petition on
09.04.2018 for challenging the impugned order dated 31.01.2017
by which, an amount of Rs.3,46,931/- along with interest, is
sought to be recovered from him..
4. The contentions of the petitioner can be summarized
as under :-
(a) The petitioner had no role to play in the fixation of
his pay scale as per the 5th and 6th Pay Commission's
recommendations.
(b) The Block Development Officer was the person,
who prepared the fixation of pay scales.
(c) The petitioner was appointed as a Peon on
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08.11.1983 and he superannuated from service on 31.08.2017.
(d) He was the Junior Administrative Officer
(Superintendent) on the date of his superannuation.
(e) On 05.10.2013, the Block Development Officer
noticed discrepancy in the pay scale structuring of the petitioner
and brought it to the notice of the Zilla Parishad that the
petitioner is being paid excess salary since 01.04.2010 till
31.08.2013.
(f) Reasons are not stated as to why the Zilla Parishad
did not act on the communication issued by the Block
Development Officer.
(g) Seven months prior to his retirement, the impugned
notice directing refund of excess amounts paid to him, was
issued.
(h) The said amount has been recovered from the
petitioner from his retiral benefits as the said amount was not
refunded by the petitioner over a period of seven months prior to
his retirement.
(i) The petitioner is not at fault and he has not played
any fraud.
(j) The judgment delivered by the Honourable Supreme
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Court in the case of State of Punjab and others vs. Rafiq Masih
(White Washer) and others, 2015 (4) SCC 334, is relied upon in
support of the claim that no recovery can be made from the
petitioner after his retirement.
(k) The petitioner has obtained a certificate from the
succeeding Block Development Officer on 29.08.2018 by way of
a declaration indicating that one Shri G.S.Margamwar, Senior
Assistant Establishment-1, was working in the Panchayat Samiti,
Mahur from January, 2011 till the date of issuance of the
certificate.
5. The learned advocate appearing on behalf of
respondent Nos.2 and 3/ Zilla Parishad relies upon the affidavit
in reply filed on 30.07.2018 by the Block Development Officer
on behalf of respondent Nos.2 and 3. It is narrated that the
petitioner was promoted and posted at Panchayat Samiti, Mahur
as the Superintendent w.e.f. 02.01.2010. Before his promotion,
his pay scale was Rs.5200-20200 with Grade Pay Rs.2400 as on
01.01.2010. His salary as on 01.01.2020 was Rs.8700/-. His pay
scale for the post of the Superintendent was Rs.9300-34800. It is
further submitted that after making proper pay fixation, the
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petitioner was entitled to receive the payment of Rs.13500/-. As
against this, he wrongly received payment as per the pay scale of
Rs.10950+330+4200=15480/- on 02.01.2010, pursuant to the
order dated 23.06.2011.
6. It is then submitted in the affidavit that the petitioner
was working as the Superintendent at Panchayat Samiti, Mahur
and he manipulated his fixation (wrong) of pay scale by
mentioning his scale as 10950+330+4200 instead of the pay scale
of Rs.9300-34800 with Grade Pay of Rs.4200. He himself was
involved in the process of fixation of his pay scale. His signature
appeared on the file of the pay fixation and by adding more
amounts, he inflated his pay scale. In his capacity of being a
Superintendent, he was in a position to manipulate his pay scale
and therefore, the law laid down by the Honourable Supreme
Court in Rafiq Masih (supra) would not be applicable to his case.
7. It is then submitted that respondent No.3 noticed the
inflation of the pay scale made by the petitioner and issued the
order dated 05.10.2013 thereby, correcting the pay scale that the
petitioner had instrumentalised by the order dated 26.03.2011. By
virtue of this order dated 05.10.2013, the correct pay scale of the
petitioner was fixed and he started receiving reduced pay scale
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without any murmur or protest. He realized that his fraudulent
act was exposed while being in service (four years prior to his
retirement and within two years of the fraud that he had played)
and therefore, the petitioner did not challenge the revised pay
scale order dated 05.10.2013.
8. The learned advocate for respondent Nos.2 and 3
further points out that an undertaking clause was written by the
Block Development Officer in the order dated 23.06.2011
containing the inflated pay scale that was prepared by the
petitioner. It was clearly mentioned in Marathi that if any
objection is raised or any mistake is noticed in the fixation of pay
scale, the beneficiary undertakes to return the excess amount that
he may have received by virtue of such inflated pay scale. The
signature of the petitioner, undisputedly, appears at two places on
the order dated 23.06.20211 in which, his pay scale was inflated.
His involvement in fixation of inflated pay scale is apparent.
Reliance is placed upon the judgments delivered by the
Honourable Supreme Court in Chandi Prasad Uniyal and others
vs. State of Uttarakhand and others, AIR 2012 SC 2951 and in
High Court of Punjab and Haryana and others vs. Jagdev Singh,
(2016) 14 SCC 267.
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RELEVANT FACTORS
9. Considering the contentions of the litigating parties,
we find that the following factors convince us in taking a view
against the petitioner :-
(a) The petitioner was the Superintendent in the
Panchayat Samiti, Mahur when the inflated pay scale was fixed
by the order dated 23.06.2011.
(b) His signatures appearing besides the signatures of
the Block Development Officer at two places indicate his
involvement and acceptance of the undertaking.
(c) The Superintendent in the office of the Panchayat
Samiti is the person, who provides factual details to the Block
Development Officer in matters of pay fixation.
(d) After the Block Development Officer noticed the
mischief, he issued the order on 05.10.2013, which is within two
years and 03 months of the wrong fixation order and directed the
correction of the pay scale of the petitioner. This order was
passed 04 years prior to the superannuation of the petitioner.
(e) The petitioner did not challenge the order dated
05.10.2013 by which, the inflated pay scale was set aside and he
was granted actual pay scale to which he was entitled to.
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(f) Even after the passing of the order dated 05.10.2013,
which contains a direction to the petitioner to return the excess
amount that he had earned, the petitioner did not refund the
amount for four years.
(g) By disobeying the orders of the Block Development
Officer and despite his fraud having been exposed, the petitioner
did not return the excess amount that he had received by his own
wrong doing and this indicates dishonesty of the petitioner.
(h) Till the petitioner superannuated on 31.08.2017, he
did not refund the amount.
(i) The impugned order for recovery of the amount
(second order) was issued on 31.01.2017, which is 07 months
prior to the superannuation of the petitioner. Yet, he did not
return the excess amount despite the directions dated 05.10.2013
and 31.01.2017.
(j) The petitioner shrewdly did not challenge the order
dated 31.01.2017 by approaching this Court, fearing that his
fraud would be exposed. He approached this Court on
09.04.2018, which is six months after his superannuation to take
the defence that the law laid down in Rafiq Masih (supra) of no
recovery post retirement, was applicable to him.
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10. Considering the above factors, we have no doubt
that this case is an example of a fraudulent behaviour and
mischievious conduct of the petitioner. The law crystallized by
the Honourable Supreme Court in Chandi Prasad Uniyal (supra)
and Jagdev Singh (supra), clearly applies to this case.
11. This Writ Petition being devoid of merit is,
therefore, dismissed. Rule is discharged.
kps (S.G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
