Bombay High Court
Devka Eknath Marathe vs The State Of Maharashtra And Ors on 22 December, 2021
Bench: R.D. Dhanuka, R. N. Laddha
8_WP8539_21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8539 OF 2021
Devka Eknath Marathe ... Petitioner
Vs.
State of Maharashtra and others ... Respondents
Mr. V. S. Tadke i/b. Mr. Balaji S. Shinde for Petitioner.
Mrs. P. J. Gavhane, AGP for Respondent Nos.1 to 4-State.
CORAM : R. D. DHANUKA &
R. N. LADDHA, JJ.
DATE : DECEMBER 22, 2021
P.C. :-
Rule. Mrs. Gavhane, learned AGP waives service for respondent
Nos.1 to 4-State. By consent of parties, petition is heard finally.
2. By this petition filed under Article 226 of the Constitution of
India, the petitioner has impugned the recovery action initiated by
respondent Nos.3 and 4 thereby directing recovery of alleged excess
salary paid to the petitioner vide notice dated 15.01.2016, for the period
2002 onwards.
3. Learned counsel for the petitioner strongly placed reliance on the
judgment of the Hon'ble Supreme Court in the case of State of Punjab
and others Vs. Rafiq Masih (White Washer) and others reported in
(2015) 4 SCC 334. The petitioner was appointed as Special Teacher on
16.06.1991 by following due process by the management of Jayantiben
Vitthalbhai Shapria, Karn Badhir Vidyalaya va Vastigruh,
Lokmanyanagar, Palghar. It is the case of the petitioner that since
October 2002, the petitioner became entitled to One Step Pay Scale and
was granted the said pay-scale from October 2002. On 30.04.2019, the
petitioner retired from service. The petitioner was not paid retiral
benefits. Since July 2019, respondent Nos.3 and 4 have withdrawn the
8_WP8539_21.doc
pay scale of the petitioner with effect from October 2002 without issuing
any notice to the petitioner.
4. Learned counsel for the petitioner places reliance on the judgment
of this Court in the case of Baban S. Chavan and others Vs. State of
Maharashtra, Writ petition (St.) No.9543 of 2021 holding that no such
recovery is permissible. Hon'ble Supreme Court in the case of State of
Punjab and others Vs. Rafiq Masih (White Washer) (supra) has dealt
with this issue and held that recoveries by the employers would be
impermissible in law from the employees belonging to Class III and
Class IV service (or Group C and Group D service) and also when the
excess payment has been made for a period in excess of five years,
before order of recovery is issued. In paragraph 18 of the said judgment,
Hon'ble Supreme Court held that it was 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 in the said judgment, the Hon'ble Supreme Court summarized
situations wherein recoveries by the employers would be impermissible
in law.
5. Mrs. Gavhane, learned AGP requested for adjournment on the
ground that the judgment of the Hon'ble Supreme Court and the other
judgments relied upon by the petitioner are distinguishable in the facts of
this case. The learned AGP, however, could not distinguish the
judgments of the Hon'ble Supreme Court and this Court. She strongly
places reliance on the Government Resolution dated 14.08.2008 and
would submit that the petitioner cannot be allowed to claim benefit of
One Step Pay Scale.
6. In our view, the benefit already granted by the Government
Resolution dated 06.08.2002 cannot be taken away by Government
Resolution dated 14.08.2008 with retrospective effect. Be that as it may,
8_WP8539_21.doc
in view of the principles laid down by the Hon'ble Supreme Court in
State of Punjab and others Vs. Rafiq Masih (White Washer) (supra)
restraining any recovery beyond the period of five years, the
Government Resolution dated 14.08.2008 pressed in service by the
learned AGP would not advance the case of the respondents-State.
7. In our view, the case of the petitioner is squarely covered by the
judgment of the Supreme Court in State of Punjab and others Vs.
Rafiq Masih (White Washer) (supra) and judgment of this Court in
Baban S. Chavan (supra). We are respectfully bound by the said
judgments. Accordingly, we pass the following order:-
(a) Writ Petition is allowed in terms of prayer clause (B);
(b) If any amount is already recovered by respondent Nos.3
and 4, the same shall be refunded to the petitioner within
four weeks from today.
7. Rule is made absolute accordingly. There shall be no order as to
costs.
8. Parties to act on an authenticated copy of this order.
(R. N. LADDHA, J.) (R. D. DHANUKA, J.)
Minal Parab
