Bombay High Court

Sunanda W/O Keshav Pendharkar vs State Of Maharashtra Through Its ... on 13 April, 2022

Bench: A.S. Chandurkar, Mukulika Shrikant Jawalkar

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR




                   WRIT PETITION No.3466 OF 2021


       Mrs. Sunanda W/o Keshav Pendharkar,
       Aged about : 67 years,
       Occupation : Retired Govt. Servant,
       R/o:- Ameya Apartments,
       55, Surendra Nagar, Nagpur

                                        ... PETITIONER

               ...VERSUS...


1.     State of Maharashtra
       Through its Secretary,
       Department of Transport,
       Mantralaya, Mumbai - 400 032.

2.     The Transport Commissioner,
       Administrative Building,
       3rd, 4th Floor Building,
       Bandra (East), Mumbai - 400 051.

3.     Regional Transport Officer,
       Nagpur City, Amravati Road,
       Nagpur.


                                        ...RESPONDENTS
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--------------------------------------------------------------------------------------
Shri T.D. Mandlekar, Advocate for Petitioner.
Ms N.P. Mehta, Assistant Government Pleader for respondent Nos. 1 to 3
--------------------------------------------------------------------------------------
CORAM : A.S.CHANDURKAR AND
        SMT. M.S. JAWALKAR, JJ.

DATE ON WHICH ARGUMENTS WERE HEARD : 25.03.2022.

DATE ON WHICH JUDGMENT IS PRONOUNCED : 13.04.2022

ORAL JUDGMENT : (Per : Smt. M.S. Jawalkar, J.)

Rule. Rule made returnable forthwith. Heard finally

with consent of both the parties.

2. By this petition, the petitioner is challenging the order

dated 30.03.2019 by which the Regional Transport Office, Nagpur

has sought to recover an amount of Rs.51,535/- towards over

payment made. The petitioner has also challenged the

communication dated 11.08.2021 by which it has been informed

that interest under Rule 129(B) of the Maharashtra Civil Services

(Pension) Rules, 1982 (for short, the said Rules) cannot be paid on

the amount of Rs.1,96,101/-.

3. It is the case of the petitioner that on 01.11.1966 the

petitioner was appointed as a Junior Clerk in the Office of wp 3466-2021.odt 3/10

respondent No.3 who is under direct control of respondent Nos. 1

and 2. From the date of appointment till her retirement the

petitioner was never communicated any adverse remarks nor was

subjected to departmental enquiry at any point of time. On the

other hand, Ku. K.B. Petkar, who was similarly situated employee as

that of petitioner got a deemed date of promotion w.e.f. 05.09.1980

by Office Order dated 01.11.2000. One Mr. Umathe was also

promoted w.e.f. 05.09.1980. Both these employees namely

Ku. Petkar and Mr. Umathe were admittedly junior to the petitioner.

On 01.11.2000, the petitioner came to know about such an injustice

therefore she had made various representations enclosing the

seniority list and demanded deemed date promotion from

05.09.1980 but in vain. Again, the petitioner and other employees

made representation to the Authorities time and again and a

Departmental Committee's Meeting was held on 08.06.2009, which

recommended promotion of the petitioner w.e.f. 31.07.1989. The

petitioner was however not promoted as Senior Clerk and was

demanding deemed date promotion from 05.09.1980 along with

arrears of pensionary benefits and other allied consequential

benefits.

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4. On 18.11.2010, the petitioner has approached the

Maharashtra Administrative Tribunal, Nagpur by filing her Original

Application No. 825/2010 and prayed for a relief of the deemed

date promotion w.e.f. 05.09.1980. The said application was decided

along with other Original Applications on 04.01.2018. The

respondents were directed to grant deemed date of promotion to

the petitioner as Senior Clerk w.e.f. 05.09.1980 with all other

monetary and consequential benefits within a period of four

months. Thereafter, the petitioner and other 10 employees were

granted deemed date of promotion vide order dated 24.07.2018.

The said Office Order dated 24.07.2018 was admittedly after 6

months and in breach of judgment passed by the Hon'ble

Maharashtra Administrative Tribunal, Nagpur. On 05.01.2019, the

petitioner was paid an amount of Rs.1,96,101/- but the petitioner

did not get any interest on the arrears of her pensionary benefits.

The respondents have failed to give interest on arrears. As per Rule

129(B) of the said Rules, the petitioner was entitled to get 10%

interest from which date the arrears accrued i.e. 05.09.1980. On

30.03.2019, the respondent No.3 illegally issued Recovery Notice to

the petitioner directing the recovery of Rs.51,535/-. The wp 3466-2021.odt 5/10

respondents have alleged that excess payment has been made to the

petitioner and therefore recovery is necessitated. According to the

State Government Notification dated 26.02.2019, it is directed by

the State Government that if on account of erroneous calculations

excess payment is made to the retired Class-III and Class-IV

employees such amount should not be recovered. The petitioner

made representation to respondent No.3 on 15.07.2019 and

requested not to effect recovery from her.

5. The petitioner, aggrieved by the action of the

respondents, approached this Court by filing Writ Petition

No.3357/2020. In the said petition, this Court vide order dated

15.01.2021, directed the respondent No.2 to decide the

representation made by the petitioner within six weeks.

6. The petitioner filed Contempt Petition No. 183/2021

for deliberate non compliance of the judgment and directions issued

by this Court in Writ Petition No.3357/2020. On 11.08.2021, the

respondent No.2 decided the representation against her and again

issued recovery notice. This Court disposed of the contempt petition

giving liberty to challenge the impugned order dated 11.08.2021.

wp 3466-2021.odt 6/10

Being aggrieved by the office order dated 30.03.2019 passed by the

respondent No.3 for recovery of Rs. 51,535/- illegally and the office

order dated 11.08.2021 passed by respondent No.2 refusing to pay

interest as per Rule 129(B) of the Rules, the petitioner has filed the

present petition.

7. Shri Mandlekar, learned Counsel for the petitioner

relied on judgments in the case of State of Punjab and others .Vs.

Rafiq Masih (White Washer) reported in (2015) 4 SCC, 334,

Gulabrao Narayanrao Chandurkar(D) through L.Rs. Vs. State of

Maharashtra and Anr. reported in 2017 (4) ALL MR 299, State of

Maharashtra and others .Vs. Satyadeo Nandakishore Awashti and

anr. reported in 2014 (1) ALL MR 163 and the decision of this Court

in Writ Petition No. 1192/2021 dated 12/01/2022 (Prasad Vinayak

Sohoni .Vs. The Treasury Officer, Thane and anr.). He submitted

that the petitioner retired from service on 31.10.2004. Having

been granted deemed date of promotion from 05/09/1990 and the

pensionary benefits being paid, there was no justification to direct

recovery of alleged excess payments post retirement.

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8. Learned Assistant Government Pleader submitted that

the petitioner has been granted deemed date of promotion with

effect from 05.09.1980, as per the order of the learned Maharashtra

Administrative Tribunal, Nagpur. The petitioner has been given all

the benefits that are permissible as per law. However, while

verifying the incidental benefits paid to the petitioner, the

respondent No.3 committed discrepancies in the statement of

arrears due and drawn. Hence the difference was rectified and

revised arrears statement was prepared. Accordingly,

communication was sent to the petitioner regarding recovery of the

additional amount of Rs.51,535/- on 30.03.2019. There is no

question of application of Rule 129(B) of Maharashtra Civil Services

Pension Rules which is in respect of interest payable on account of

delay in disbursement of pension. The amount of Rs.1,96,101/-

paid to the petitioner is the difference in salary as per the revised

pay fixation. Thus the said provision cannot be applied in the

instant case. The communication dated 30.03.2019 regarding

recovery of excess payment on account of arrears statement of due

and drawn pay is justified and proper.

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9. We have heard both the parties at length. The

communication which is under challenge is dated 30.03.2019. If

dates are perused the Maharashtra Administrative Tribunal passed

its judgment on 04.01.2018. As per this order deemed date of

promotion was granted. As the said order of granting deemed date

of promotion was to be issued by the senior most Officer, it was

forwarded to Commissioner of Transport. The Commissioner passed

an order directing deemed date of promotion to be granted and

further needful action vide order dated 13.07.2018. Accordingly,

Regional Transport Office, Nagpur issued order dated 24.07.2018.

By letter dated 30.03.2019 it was informed to the petitioner that

while verifying the service book, it was found that there was

difference on account of due and drawn pay and it was found that

an amount of Rs.51,535/- was paid excess while paying arrears to

the petitioner on grant deemed date of promotion. The petitioner

placed reliance on Government Resolution dated 26.02.2019. So

far as reliance placed on the judgment in Rafiq Masih (supra) by

the petitioner is concerned, the petitioner cannot get the benefit of

exemption from refund as the said mistake of excess amount of

payment while calculating arrears was rectified immediately and wp 3466-2021.odt 9/10

there was no deduction as such from the pension or pensionery

benefits. It is neither iniquitous nor harsh nor arbitrary. It is held by

the Hon'ble Apex Court in Rafiq Masih (supra) itself on which

petitioner placed reliance that :

"7.Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to the employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power. "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court."

10. So far as prayer for grant of interest is concerned, Rule

129(B) speaks of interest on delayed disbursement of pension.

There is no delay in disbursement of pension. Therefore, petitioner wp 3466-2021.odt 10/10

is not entitled for interest on arrears after being granted deemed

date of promotion.

11. In view of aforesaid, the impugned orders are justified.

However, in the light of the fact that the petitioner is retired, the

purpose would be served if the recovery of excess payment is

directed to be made within a period of one year by equal

installments. The respondent No.3 is thus directed to implement the

order dated 30.03.2019 of recovery of amount, however, that

amount will be recovered in equal installments spread out over a