Bapurao Tukaram Ekambe vs The State Of Maharashtra And ...
2021 Latest Caselaw 10297 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   BENCH AT AURANGABAD

                      WRIT PETITION NO.1502 OF 2018

 Bapurao s/o Tukaram Ekambe
 Age : 63 years, Occupation : Pensioner,
 R/o Bhutan Hipparga, Plot No.6,
 Galli No.4, Tq.Degloor, 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 Senior Accounts Officer,
         Zilla Parishad, Nanded.                  ...RESPONDENTS

                                      ...
      Advocate for the Petitioner : Shri Kulkarni Girish N. (Mardikar)
            AGP for Respondent 1 : Shri S.R. Yadav Lonikar
        Advocate for Respondents 2 and 3 : Shri Kadam Nitin S.
                                      ...

                               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

finally by the consent of the parties.

2. The petitioner is aggrieved by the remarks of

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respondent No.3 dated 17.08.2013 vide which, the amount of

Rs.50,566/- has been recovered from the petitioner's pensionary

benefits on the ground that the said amount was paid in excess as

a result of the mistake in fixation of his salary as an Assistant

Teacher between January, 2006 and December, 2011.

3. The petitioner joined employment in 1982. He stood

superannuated on 31.12.2011. By the impugned remarks dated

17.08.2013, the amount of Rs.50,566/- is recovered from his

pension. The stand taken by respondent No.3 is that the

Department noticed wrong fixation of pay scale of the petitioner

payable during the period January, 2006 to December, 2011

based on the Sixth Pay Commission's recommendations. It is

fairly stated by the respondent Zilla Parishad that the petitioner

was not instrumental in preparation of his pay structure and had

not played any fraud on the Department so as to gain extra

payment and therefore, caused unjust enrichment.

4. In the above facts of the case, it is apparent that the

law laid down in the matters of Shyam Babu Verma vs. Union of

India, (1994) 2 SCC 521, Syed Abdul Qadir vs. State of Bihar,

2009 (3) SCC 475 and the State of Punjab and others vs. Rafiq

Masih (White Washer) and others, 2015 (4) SCC 334, would be

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applicable to the case of the petitioner. He is not alleged to have

participated in the wrong fixation of his pay scale. There is no

allegation that he has played a fraud. The employer has not taken

a written undertaking from the petitioner to repay the amount if it

is eventually noticed that he is a beneficiary of excess payment

of salary. He superannuated on 31.12.2011 and the recovery has

been caused on 17.08.2013.

5. In view of the above, this Writ Petition is allowed in

terms of prayer clause "A", which reads as under :-

"(A) By issuing Writ of certiorari remarks in pension

order dated 17.08.2013 respect of recovery of the excess amount

paid to the petitioner of Rs.50,566/- may kindly be quashed and

set aside."

6. Respondent No.3 shall, therefore, refund the amount

of Rs.50,566/-, without interest, to the petitioner as expeditiously

as possible and in any case, on or before 30.10.2021, failing

which, the amount shall carry interest @ 6% p.a. from

September, 2013.

7. Rule is made absolute in the above terms.

kps (S.G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)