Dilip Wamanrao Telrandhe vs Divisional Commissioner, Nagpur ...
2022 Latest Caselaw 4308 Bom

Judgment                                          1                                WP 6773.19.odt




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


                         WRIT PETITION NO.6773 OF 2019


Dilip Wamanrao Telrandhe,
Aged 61 years,
Occupation-Retired,
R/o. Plot No.21, Diamond Nagar,
Kharbi Road, Near Gajanan Mandir,
Nagpur, Tq. & District-Nagpur.                                       ..       Petitioner


                          .. Versus ..


1]      Divisional Commissioner,
        Nagpur Division, Nagpur.

2]      The Zilla Parishad, Nagpur,
        Through its Chief Executive Officer,
        Tq. & District-Nagpur.

3]      Education Officer (Primary),
        Zilla Parishad, Nagpur,
        Tq. & District-Nagpur.                                       ..       Respondents


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Shri A.R. Deshpande, Advocate for the petitioner,
Ms. N.P. Mehta, A.G.P. for respondent no.1-State,
Shri I.S. Charlewar, Advocate for respondent nos.2 and 3.
---------------------------------------------------------------------------------------------------


                         CORAM : SUNIL B. SHUKRE AND
                                 SMT. M.S. JAWALKAR, JJ.

DATED : 25.04.2022.

Judgment 2 WP 6773.19.odt

ORAL JUDGMENT : (Per : Sunil B. Shukre, J.)

The reply of the respondent nos.2 and 3 is taken on record.

Its copy is already supplied to the petitioner.

2. Heard. Rule. Rule made returnable forthwith. Heard

finally by consent of the learned counsel appearing for the parties.

3. It is not in dispute that the petitioner is Kendra Pramukh

and Group-C employee of the Zilla Parishad, Nagpur. It is also not in

dispute that he retired on 31st October, 2015 on attaining the age of

superannuation. However, while making payment of gratuity to the

petitioner in May-2016, an amount of Rs.2,14,946/- was deducted

without giving any notice to the petitioner. Later-on, on making an

enquiry in that regard, the petitioner was informed by the

communication dated 23.08.2017 that this recovery of Rs.2,14,946/-

was rightly made by deducting the amount of recovery from the

gratuity payable to the petitioner, as this was the amount which was

paid in excess to the petitioner. Now, by the reply filed by the

respondent nos.2 and 3, it is further clarified that as per the Govt.

Resolution dated 24th August, 2017, it was necessary that the additional

increment granted to the employees of the Zilla Parishad, on account of

they be District Awardee Teachers should not be taken into Judgment 3 WP 6773.19.odt

consideration while fixing the pay as per the Recommendations of 6 th

Pay Commission and therefore, while granting benefits of 6 th Pay

Commission Recommendations to an employee like the petitioner, it

became necessary to deduct the said amount from the amount of the

gratuity payable to the petitioner, which was rightly done by the

respondents. The stand so taken by the respondents is against the law

declared by this Court in several of its judgments and also the judgment

of the Apex Court rendered in the case of State of Punjab and others

V/s. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334.

4. In its judgment dated 05/04/2018, rendered in Writ

Petition No.8165/2017 along with the connected matters and order

dated 17/11/2017 rendered in Writ Petition No.625/2016, Coordinate

Bench of this Court has taken a view that withdrawal of benefit already

conferred upon a District Awardee Teachers in the nature of one

additional increment is not in reality the effect of Govt. Resolution

dated 24th August, 2017. This Court further held that the increment

additionally granted deserves to be continued and its benefit deserves

to be permitted to be availed of by the District Awardee Teachers, till

their superannuation, unless it is withdrawn as per the law and that

there was no order of withdrawal of that benefit. Thus, this Court

finally held that the benefit already conferred upon the District Judgment 4 WP 6773.19.odt

Awardee Teachers in the nature of one additional increment cannot be

taken back and thus directed that it shall be restored and released in

favour of the petitioners, who were the District Awardee Teachers,

within a time stipulated in the judgment.

5. In the case of Rafiq Masih (supra), the Hon'ble Supreme

Court has held that after retirement of Class-III and Class-IV employees

or Group-C or Group-D employees, no recovery from these employees

is permissible in law.

6. As stated earlier, the petitioner is Group-C employee and

the recovery of alleged excess payment to the petitioner has been made

after his retirement. This Court has also found that the District

Awardee Teacher like the petitioner is entitled to receive the benefit of

one additional increment conferred under District Awardee Teachers

Scheme, till such employee reaches superannuation. Besides, as held in

Rafiq Masih (supra), recovery of any excess payment from Group-C

employee, after his retirement, is not permissible. This position of law,

in our considered view, clinches with the whole case in favour of the

petitioner and renders the recovery effected from the gratuity payable

to the petitioner as illegal.

Judgment 5 WP 6773.19.odt

7. In the result of, the petition is allowed in terms of prayer

clause (A). The refund of amount of Rs.2,14,946/- to the petitioner be

made within twelve weeks from the date of receipt of copy of the order.

If the recovery made from the gratuity of the petitioner has affected the

fixation of pension payable to the petitioner, the petitioner would be at

liberty to make an appropriate application for re-fixation of his pension

so as to bring it in accord with the observations and findings recorded

in this judgment.

8. Authenticated copy of the order be furnished to the parties

to act upon. Rule is made accordingly. No costs.

                                           (SMT. M.S. JAWALKAR, J.)       (SUNIL B. SHUKRE, J.)

                                Gulande




Signed By:ABHIMANYU
SHANKARRAO GULANDE
PS to the Hon'ble Judge

Signing Date:27.04.2022 15:06