Bombay High Court
Sau. Pushpa W/O. Sukhdeorao Dode vs The State Of Maharashtra, Thr. ... on 22 December, 2022
Bench: A.S. Chandurkar, Anil Laxman Pansare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 2329 OF 2022
Sau. Pushpa w/o Sukhdeorao Dode
Aged about 67 Years, Occupation-Retired;
R/o Sharda Nagar, Shriniwas Colony,
Wardha, Tahsil and District Wardha. ... PETITIONER
VERSUS
1. The State of Maharashtra
Through its Secretary, Department of
Education, Mantralaya, Mumbai-32.
2. Deputy Director of Education
Nagpur Division, Nagpur.
3. Director of Education
Rajya Shaikshanik Sanshodhan
Prashikshan Parishad, Pune.
4. Thakkar Bappaa Seva Samaj Gitai Nagar,
Gopuri, through its Secretary/President,
Wardha, Tahsil and District Wardha.
5. Jagjivanram Madhyamik Vidyalaya,
Wardha, through its Headmaster, Tahsil
and District Wardha.
6. The Principal
Navbharat Adhyapak Vidyalaya,
Ramnagar, Wardha, Tahsil and District
Wardha.
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7. Education Officer (Secondary)
Zilla Parishad, Wardha.
8. Accountant General
Office of Accountant General (A&E-II),
Maharashtra, Nagpur. ... RESPONDENTS
Mr. S. A. Radke, Advocate for Petitioner.
Mr. A. S. Fulzele, Additional Government Pleader for Respondent Nos.1, 2,
7 and 8.
None for the Respondent No.3.
Mr. S. A. Chaudhari, Advocate for Respondent No.6.
CORAM : A. S. CHANDURKAR AND ANIL L. PANSARE, JJ.
DATE : DECEMBER 22, 2022.
ORAL JUDGMENT - [PER ANIL L. PANSARE, J.]
. Heard Mr. Radke, learned Counsel for the Petitioner, Mr.
Fulzele, learned Additional Government Pleader for the Respondent
Nos.1, 2, 7 and 8 and Mr. Chaudhari, learned Counsel for the Respondent
No.6. None appeared for the Respondent No.3 though served.
2. Rule. Rule made returnable forthwith. Heard finally by consent
of the learned Counsel for the parties.
3. The Petitioner has putforth following prayers :
"a) quash and set aside the communication dated
31/8/2016 issued by respondent no.2 Deputy Director of
Education, Nagpur, Nagpur Division Nagpur at (Annexure-O);
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b) quash and set aside the communication dated
18/1/2013 issued by respondent no.8 Accountant General, Civil
Lines, Nagpur, District Nagpur in relation to recovery of amount
from gratuity of the petitioner ₹ 2,68,605/- (₹ Two Lacs Sixty
Eight Thousand Six Hundred and Five only) (Annexure-L);
c) quash and set aside the communication dated 4/3/2022
issued by respondent no.2 - Director of Education to respondent
no.3 - Rajya Shaikshanik Sanshodhan Prashikshan Parishad,
Pune, District Pune (Annexure-S), in the interest of justice;
d) direct respondents to grant the scale of ₹ 15,600
- ₹ 45,100 with Grade pay of ₹ 5400/- from the date of transfer
of the petitioner i.e. from 11.6.1990 with arrears including
interest @ 13% per annum from the date of cancellation till
actual realization;
e) direct respondents to refund the recovery of amount of
₹ 2,68,605/- to the petitioner with 13% interest from the date of
recovery i.e. 18.1.2013 till actual realization."
4. It is the case of the Petitioner that she was first appointed as
Assistant Teacher in Respondent No.5 - School with effect from
10/5/1986. She was re-appointed on 2/4/1988 with effect from
1/10/1987. She was continued in service for the period from 10/9/1986
to 10/6/1990. On 11/6/1990 the Petitioner was transferred from
Respondent No.5 - School to Respondent No.6 - Junior College. The
School and the College are run by the Respondent No.4 - Management.
Both the School and College were admitted to 100% grant in aid. The
Petitioner was granted benefits of revised pay bond of ₹ 15,600/-
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with Grade Pay of ₹ 5400/-. The service of the Petitioner has been
approved by the Respondent No.3.
5. It is further the case of the Petitioner that on 31/7/2012 she
retired on completing age of superannuation. However, on 18/1/2013 she
received a copy of letter issued by the Respondent No.8 - Senior Account
Officer addressed to the Education Officer mentioning therein that an
amount of ₹ 2,68,605/- is recoverable from the amount of Gratuity of the
Petitioner.
6. The Petitioner is aggrieved by the aforesaid communication, so
also by the earlier internal office communications dated 31/8/2016 and
4/3/2022 made by the officials of the Education Department in which a
decision has been taken that the revised pay bond of ₹ 15,600/- with
Grade Pay of ₹ 5400/- granted in favour of the Petitioner is incorrect and
the Petitioner ought to have been granted pay bond of ₹ 14700/- with
Grade Pay of ₹ 4400/-. The reason assigned for revisiting the Grade Pay is
that the Petitioner was originally appointed in the Secondary School. She
was transferred to the Junior College. Thus, she was not appointed in the
College, and therefore, she will not be entitled for the senior pay scale and
Grade Pay as stipulated in the Government Resolution dated 13/8/2009.
7. Mr. Radke, learned Counsel for the Petitioner submits that vide
letter dated 14/11/2014 issued by the Respondent No.2 - Deputy Director
of Education in favour of the Principal of College, the revised pay bond of
₹ 15,600/- with Grade Pay of ₹ 5400/-was said to be approved by the
Accounts Officer. He further submits that even certificate to that effect was
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issued by the Respondent No.2. He then submits that the Petitioner being
Assistant Teacher is a Class-III employee. The Petitioner has received the
benefit of revised pay scale and Grade Pay till her retirement. The revised
pay and the Grade Pay granted in favour of the Petitioner could not have
been revisited post retirement. He further contends that the Education
Officer has no power to revisit his decision. Accordingly, prayed for
granting relief.
8. As against, the learned Assistant Government Pleader for
Respondent Nos.1, 2, 7 and 8 have supported the decision taken by the
Respondent No.2 on the ground that the mistake committed could always
be corrected. The Respondent No.2 has simply corrected the mistake
because the Petitioner was not appointed in the College, but her original
appointment was in the School and that her services were transferred to
the College.
9. We have given thoughtful consideration to the submissions
made by both the sides.
10. There is no dispute that till the date of retirement of the
Petitioner, the Respondent No.2 did not realize the so called mistake
committed by him in fixing revised pay bond of ₹ 15,600/- with Grade
Pay of ₹ 5400/- from the date of transfer of the Petitioner to the College
i.e. from 11/6/1990. There is further no dispute that the action of
recovery was not taken till the Petitioner's retirement. There is further no
dispute that the Petitioner is Class-III employee. If that be so, we find that
controversy is covered by the Judgment of the Hon'ble Apex Court in the
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case of State of Punjab and others V/s Rafiq Masih (White Washer) and
Others, (2015) 4 SCC 334, wherein the principles on recovery of excess
payment were summarized thus :
"18. It is 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
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 the employees belonging to Class III and Class
IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who
are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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 employee, would be iniquitous
or harsh or arbitrary to such an extent, as would far outweigh
the equitable balance of the employer's right to recover."
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11. Thus, the Hon'ble Apex Court has laid down the situations
where recoveries by the employers would be impermissible. The case of
the Petitioner, in our view, falls in first three categories, viz - (i) the
Petitioner is a Group-C employee; (ii) is a retired employee; and (iii) the
excess payment has been made for the period in excess of five years
before the order of recovery is received. The recovery of excess pay,
therefore, was impermissible.
12. On the point of powers of review, the Petitioner has relied
upon the Judgment in the case of Sachin Sharadchandra Deole V/s
Education Officer (Secondary) & Ors. 2022(5) ALL MR 224 , wherein the
Co-ordinate Bench of this Court, of which one of us (A. S. Chandurkar, J.)
while considering an issue as to whether there exist the power of review
with the Education Officer, has observed as under :
" 10. ........................... There can be no doubt that the
power of review is not inherent in nature and the same has to
be conferred by law for it to be exercised. That the Education
Officer (Secondary) has not been conferred with any power of
review pursuant to adjudication under Rule 12(3) of the Rules
of 1981 is clear as there is no such provision either under the
Act of 1977 or the Rules of 1981 conferring such power of
review on the Education Officer (Secondary). This position
has been considered by the Division Bench in Devendra
Tarachand Gharde (supra). Incidentally, we may also refer to
the judgment of learned Single Judge in Ashok Yashwant
Nikam Versus Chatrapati Shivaji Vidya Prasarak Mandal, Nasik
& Others [2009(3) BCR 19] : [2009(4) ALL MR 118] wherein
this very question as regards existence of the power of review
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with the Education Officer was considered. It was held that
the Education Officer had not been conferred with any such
power to review his earlier order."
13. It is, thus, clear that the Education Officer and/or for that
purpose the Deputy Director has not been conferred with power of review
to revisit his earlier decision.
14. The impugned decisions are, therefore, unsustainable and are
liable to be set aside. So far as other reliefs are concerned, viz - seeking
direction to the Respondents to grant pay scale of ₹ 15,600 - ₹ 45,100
with Grade Pay of ₹ 5400/- from the date of transfer of the Petitioner i.e.
from 11/6/1990, the benefit of the mistake committed by the
Respondents leading to excess payment, in our view, cannot be given
ratification in the nature as sought by the Petitioner. We, accordingly, pass
the following order.
ORDER
(i) Writ Petition is partly allowed.
(ii) The communications dated 31/8/2016 and 4/3/2022 issued by the
Respondent No.2 and communication dated 18/1/2013 issued by
the Respondent No.8 thereby directing recovery of an amount
of ₹ 2,68,605/- from Gratuity of the Petitioner are hereby quashed
and set aside.
(iii) We direct the Respondent Nos. 3 and 8 to refund the recovered
amount of ₹ 2,68,605/- to the Petitioner within a period of three
months from the date of receipt of copy of this order, failing which,
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the Respondent Nos.3 and 8 shall pay an interest at the rate of 9%
per annum till the amount is refunded.
15. Rule is made absolute in above terms. No costs.
(ANIL L. PANSARE, J.) (A. S. CHANDURKAR, J.)
Yadav VG
Digitally Signed ByVIJAYA
GOURISHANKAR YADAV
Signing Date:23.12.2022
16:52
