Bombay High Court
Chandrakant Laxman Kelkar And ... vs The State Of Maharashtra And ... on 15 November, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
(1) 26-wp-12403-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.12403 OF 2021
CHANDRAKANT LAXMAN KELKAR AND OTHERS ..PETITIONERS
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS ..RESPONDENTS
...
Mr. Anuj A. Fulfagar, Advocate for the Petitioners.
Mr. P. K. Lakhotiya, AGP for Respondents-State.
...
CORAM : S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
DATED : 15th NOVEMBER, 2021.
PER COURT:-
1. Heard the learned counsel for the
petitioners and the learned A.G.P.
2. The learned counsel for the petitioners
submits that this Court in case of similarly
situated persons, has set aside the order of
recovery and directed to refund the amount of which
recovery was made on account of wrong fixation.
3. The learned counsel refers to the judgment
and order dated 18.07.2017 passed in Writ Petition
No.5367 of 2016 and the judgment and order dated
12.02.2018 passed in Writ Petition No.695 of 2016.
4. It is not disputed that the petitioners
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are similarly situated as the petitioners in Writ
Petition Nos. 5367 of 2016 and 695 of 2016,
referred to above and are from the same Department.
5. The petitioners have retired from service
and claim the refund of the amount recovered from
them on account of wrong fixation. The petitioners
rely on the judgment in the case of State of Punjab
and others vs. Rafiq Masih (White Washer), etc.
reported in 2015(4) SCC 334. The Apex Court in the
said judgment laid down the following parameters :-
(i) Recovery from employees belonging to Class-
III and Class-IV service (or Group C and
Group D service).
(ii) Recovery from retired employees, or
employees who are due to retire within one
year, of the order of recovery.
(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) In any other case, where the Court arrives
at the conclusion, that recovery if made
from the employees, would be iniquitous or
harsh or arbitrary to such an extent, as
would far outweigh the equitable balance of
the employers right to recovery.
6. The petitioners were working on Class-III
(3) 26-wp-12403-2021
posts on the date of retirement. It would cause
hardship to the petitioners if the said amount is
recovered. All the parameters detailed in the
judgment of the Apex Court in the case of State of
Punjab and others vs. Rafiq Masih (White Washer),
etc. (supra) are attracted in the present matter.
7. In light of the above, the impugned order
of recovery is quashed and set aside. In case the
respondents have recovered the amount from the
petitioners, the same shall be refunded to the
petitioners expeditiously and preferably within
four (04) months.
8. The Writ Petition is accordingly disposed
of. No costs.
(R. N. LADDHA) (S. V. GANGAPURWALA)
JUDGE JUDGE
Devendra/November-2021
