Gyanchand S/O Tarachand ... vs State Of Maharashtra, Through Its ...
2021 Latest Caselaw 11667 Bom

WPs 6771,6772,6780&6827-19                    1                 Common Judgment

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      NAGPUR BENCH, NAGPUR.
                      WRIT PETITION NO. 6771/2019

Yadaorao S/o Ramji Gaikwad,
aged around 54 years, Occupation : Service,
R/o Shrinagar, Murmadi (Lakhni), Post. Tah-Lakhni,
District Bhandara.                                                     PETITIONER
                                .....VERSUS.....
1.    State of Maharashtra,
      Through its Secretary,
      Department of Rural Development and
      Water Conservation, Mantralaya, Mumbai.
2.    The Zilla Parishad, Bhandara,
      Through its Chief Executive Officer, Bhandara.
3.    The Education Officer (Primary),
      Zilla Parishad, Bhandara.                                     RESPONDENTS

                                    WITH
                      WRIT PETITION NO. 6772/2019

Dhananjay Shalikram Biranwar,
aged 53 years, Occu. Service,
R/o 22, Vidyanagar Colony, Nagpur Road,
Tah. & District Bhandara.                                              PETITIONER
                                .....VERSUS.....
1.    State of Maharashtra,
      Through its Secretary,
      Department of Rural Development and
      Water Conservation, Mantralaya, Mumbai.
2.    The Zilla Parishad, Bhandara,
      Through Chief Executive Officer, Bhandara.
3.    The Education Officer (Primary),
      Zilla Parishad, Bhandara.                                     RESPONDENTS

                                    WITH
                      WRIT PETITION NO. 6780/2019

Surendra S/o Harishchandraji Patil,
Aged 55 years, Occupation : Service,
R/o Plot No.19, Vidhut Colony No.2,
Vyankateshnagar, Takiya Ward, Behind Maida Mill,
Bhandara, Tah. and District Bhandara.                                  PETITIONER




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 WPs 6771,6772,6780&6827-19                    2                 Common Judgment

                                 .....VERSUS.....
1.    State of Maharashtra,
      Through its Secretary,
      Department of Rural Development and
      Water Conservation, Mantralaya, Mumbai.

2.    The Zilla Parishad, Bhandara,
      Through Chief Executive Officer, Bhandara.

3.    The Education Officer (Primary),
      Zilla Parishad, Bhandara.                                     RESPONDENTS

                                     WITH
                      WRIT PETITION NO. 6827/2019

Gyanchand S/o Tarachand Jambhulkar,
aged 55 years, Occupation : Service,
R/o Plot No.55, Balaji Nagar, Khat Road,
Tah. & District Bhandara.                                              PETITIONER
                                 .....VERSUS.....
1.    State of Maharashtra,
      Through its Secretary,
      Department of Rural Development and
      Water Conservation, Mantralaya, Mumbai.

2.    The Zilla Parishad, Bhandara,
      Through its Chief Executive Officer, Bhandara.

3.    The Education Officer (Primary),
      Zilla Parishad, Bhandara.                                     RESPONDENTS

              Smt. Sharda S. Wandile, counsel for the petitioners.
 Shri D.P. Thakare, Additional Government Pleader for the respondent no.1 in
               Writ Petition Nos. 6772 of 2019 and 6780 of 2019.
 Ms S.S. Jachak, Assistant Government Pleader for the respondent no.1 in Writ
                 Petition Nos. 6827 of 2019 and 6771 of 2019.
         Shri R.S. Khobragade, counsel for the respondent nos.2 and 3.

CORAM : A. S. CHANDURKAR AND G.A. SANAP, JJ.

DATE      : 24TH AUGUST, 2021.
ORAL JUDGMENT              (PER : A.S. CHANDURKAR, J.)

RULE. Heard finally considering the short issue involved.

WPs 6771,6772,6780&6827-19 3 Common Judgment

2. The challenge raised in these writ petitions being similar they

are being decided by this common judgment. For sake of convenience the

facts in Writ Petition No.6772 of 2019 are being referred.

3. The petitioner was appointed as Assistant Teacher (Primary)

in Zilla Parishad, Bhandara on 01.01.1988. He was thereafter posted as a

Graduate Assistant Teacher for teaching Classes 5 to 7. On completion of

twelve years service as Graduate Assistant Teacher, he was granted

higher pay-scale. On 11.08.2011, the petitioner was promoted as a

Secondary Assistant Teacher (Higher Grade) to teach Classes 9 and 10

until further orders. Thereafter on 12.12.2012 he was granted allowance

of Rs.200/- for discharging duties in the Naxal Affected Area. According

to the Zilla Parishad since the order dated 11.08.2011 was not an order of

promotion but was merely a placement order and the grant of

promotional increment as well as allowance was erroneous the same was

sought to be withdrawn by passing the order dated 02.08.2019. By the

said order which is impugned in the present writ petitions the excess

payment made from the date of placement is sought to be recovered.

4. The learned counsel for the petitioners submitted that all the

petitioners fall in Class-III of the Zilla Parishad Services. The orders of

promotion dated 11.08.2011 in Writ Petition Nos.6772 of 2019, 6780 of

WPs 6771,6772,6780&6827-19 4 Common Judgment

2019 and 6827 of 2019 as well as dated 14.05.2012 in Writ Petition

No.6771 of 2019 came to be issued by the Zilla Parishad in due course.

The petitioners had no role to place in the same and without there being

any misrepresentation of any fact or allegation of fraud the benefits

granted to the petitioners pursuant to those orders were sought to be

withdrawn. The petitioners having discharged duties on the posts where

they were accordingly placed, they were entitled to retain the monetary

benefits received by them and there was no justification in withdrawing

the same. Moreover by virtue of the impugned orders, the petitioners

had been deprived of the benefit of the increments which have been

otherwise they were entitled to. Placing reliance on the decisions in

Sahib Ram Versus State of Haryana & Others [1995 Supp(1) SCC 18],

Syed Abdul Qadir & Others Versus State of Bihar & Others [2009 AIR

SCW 1871] and State of Punjab & Others Versus Rafiq Masih (White

Washer) [AIR 2015 SC 696], it was submitted that as the petitioners

belong to Class-III and the excess payment having been made to them for

a period exceeding five years, the order of recovery was unjustified as

held aforesaid. It was thus submitted that the impugned orders were

liable to be set aside.

5. The learned counsel appearing for the respondent nos.2 and 3

supported the orders of recovery. It was stated that instead of passing the

WPs 6771,6772,6780&6827-19 5 Common Judgment

orders of placement the orders of promotion were erroneously issued by

the Zilla Parishad. Since the petitioners were not entitled to higher pay-

scale the excess payment made was liable to be recovered. On the basis

of complaints received by the Zilla Parishad the recovery had been

directed and there was no basis for permitting the petitioners to retain

the excess amounts received by them. It was thus submitted that no

interference was called for with the impugned orders.

6. We have heard the learned counsel for the parties and we

have perused the material on record. At the outset it may be stated that

the Zilla Parishad in paragraph 6 of its reply has clearly stated that the

orders of promotion were erroneously issued to the petitioners. It is not

the case of the Zilla Parishad that on account of any misrepresentation by

the petitioners or any fraud committed by them such orders of promotion

came to be issued. On that basis they were granted benefit of salary on

the post of Assistant Teacher (Higher Grade). The orders of promotion

are dated 11.08.2011 and 14.05.2012. After a period of more than seven

years the mistake was realized and the recoveries have been ordered. We

find that the observations in the case of Rafiq Masih (supra) in paragraph

12(i), (iii) and (iv) which are reproduced hereinbelow are squarely

applicable to the facts of the present case.

"12. It is not possible to postulate all situations of hardship, which would govern employees on the

WPs 6771,6772,6780&6827-19 6 Common Judgment

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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

              (ii)              ............
              (iii)             Recovery from 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) ............"

The petitioners belong to Class-III of the Zilla Parishad

services and the excess payment has been made to them for a period

exceeding five years. The petitioners have also discharged duties on the

posts where they were placed. In that view of the matter the order dated

02.08.2019 passed by the Zilla Parishad through its Chief Executive

Officer insofar as it directs recovery of the excess payment made is found

to be unsustainable.

WPs 6771,6772,6780&6827-19 7 Common Judgment

7. It was sought to be urged that the increments to which the

petitioners are entitled should also be restored. We are not inclined to go

into that aspect since the same would involve consideration of various

factual aspects. It is open for the petitioners to approach the Competent

Authority for making such grievance in accordance with law.

Accordingly, the order dated 02.08.2019 passed by the Chief

Executive Officer, Zilla Parishad, Bhandara to the extent it directs

recovery of the excess payment made to each petitioner is quashed. The

petitioners are at liberty to approach the Competent Authority for seeking

relief in the matter of grant of increments and other monetary benefits if

any admissible to them. If such request is made, the same shall be

considered by the Competent Authority on its own merits in accordance

with law.

8. Rule is made absolute in aforesaid terms. The parties to bear

their own costs.

             (G.A. SANAP, J.)               (A.S. CHANDURKAR, J.)

APTE