Bombay High Court
Badgujar Chintamanrao Doghu And ... vs The State Of Maharashtra And ... on 6 May, 2022
Bench: R.D. Dhanuka, S. G. Mehare
(1) wp-1743-2020 & ors.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1743 OF 2020
WITH
CIVIL APPLICATION NO.1278 OF 2022
AND
CIVIL APPLICATION NO.5671 OF 2022
IN
WRIT PETITION NO.1743 OF 2020
1. Dr. Shivaji Tulsiram Pachpute,
Age 57 years, Occ. Service.
2. Dr. Vinu Shrikushna Lawar,
Age 59 years, Occ. Service.
3. Dr. Jayashri Shivaji Pachpute,
S/o Kashinath Krishnaji Kumkar,
Age 52 years, Occ. Service.
4. Dr. Fernandes Angelo Padru,
Age 61 years, Occ. Service.
5. Dr. Gajanan Nathu Deore,
Age 59 years, Occ. Service.
6. Dr. Krishna Bhagwan Pawar,
Age 59 years, Occ. Service.
7. Dr. Arun Bhagwan Bhosale,
Age 45 years, Occ. Service.
8. Dr. Anilkumar Madhav Tirmali,
Age 49 years, Occ. Service.
9. Dr. Babasaheb Kashiram Mali,
Age 60 years, Occ. Service.
10. Dr. Somnath s/o Ramnath Dhonde,
Age 55 years, Occ. Service.
11. Dr. Namdeo Deorao Sarode,
Age 57 years, Occ. Service.
12. Dr. Raosaheb Baburao Pawar,
Age 58 years, Occ. Service.
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13. Dr. Nandkumar Surendra Kute,
Age 55 years, Occ. Service.
14. Dr. Laxman Nivrutti Tagad,
Age 52 years, Occ. Service.
15. Dr. Anil Bajirao Rajguru,
Age 48 years, Occ. Service.
16. Dr. Bhagwan Sahebrao Kadam,
Age 59 years, Occ. Service.
17. Dr. Babasaheb Ramchandra Bhite,
Age 53 years, Occ. Service.
18. Shri. Kadam Shrikant Appasaheb,
Age 56 years, Occ. Service.
19. Dr. Shinde Hanumant Ramchandra,
Age 57 years, Occ. Service.
20. Dr. Joshi Govind Ganesh,
Age 56 years, Occ. Service.
All R/o Mahatma Phule Krishi
Vidyapeeth, Rahuri, Tq. Rahuri,
Dist. Ahmednagar.
21. Arvind Tukaram Deokar,
Age 58 years, Occ. Service,
239/C, Plot NO.8/A, Radhanagari Road,
Kolhapur-416012.
22. Dr. Uddhav s/o Yashvantrao Bhoite,
Age 62 years, Occ. Retired,
R/o. D32, Gulmohor Colony,
Rahuri.
23. Dr. Dhanaji Malhari Gaikwad,
Age 58 years, Occ. Service,
R/o. Sunchiti, Wing-B-2, Flat No.707,
Damani Nagar, Solapur-413001.
24. Dr. Chandrashekhar s/o Raghunath,
Age 61 years, Occ. Retired,
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Kshirsagar, R/o. Plot No.40, Sgar Society,
Lane No.4, Pashan, Pune 411021.
25. Kumar Ramling Waykar,
Age 62 years, Occ. Retired,
R/o. At post Pimpari (Sakat),
Tal Barshi. Dist. Solapur 413403.
26. Dr. Baban Bhau Khutal,
Age 63 years, Occ. Retired,
At Post - Manglur (Pargaon),
Tq. Junnar, Dist. Pune 412410.
27. Dr. Ravindra Haridas Kolse,
Age 56 years, Occ. Service,
R/o In front of Jain Tempal,
Tq. Shrirampur, Belapur Bk.,
District Ahmednagar.
28. Dr. Vasant Shamrao Patil,
Age: 60 years, Occupation: Service,
R/o: Yashwantrao Chavan Housing Society,
Kadamwadi, Building No.4,
Flat No.23, Near Municipal School No.12,
Kolhapur- 416 003.
29. Prof. Sharad Jingonda Patil,
Age: 61 years, Occupation: Service,
R/o: In front of Jain Mandir,
Halondi, Tq. Hatkanagle,
District. Kolhapur. ...Petitioners
Versus
1. The State of Maharashtra,
Through the Secretary for
Agricultural Department
Mantralaya, Mumbai.
2. Mahatma Phule Krishi Vidyapeeth,
Rahuri, Tq. Rahuri,
Dist. Ahmednagar,
through its Registrar. ..Respondents
...
Mr. V. D. Hon, Senior Advocate i/by Mr. A. V. Hon,
Advocate for the Petitioners.
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Mr. S. B. Yawalkar, AGP for Respondent No.1.
Mr. A. S. Shelke, Advocate for Respondent No.2.
...
AND
WRIT PETITION NO.7248 OF 2020
1. Dr. Badgujar Chintamnarao Doghu,
Age: 60 years, Occupation: Service,
R/o: Plot No.17, Gat No.94/1,
Subhadra, Khote Nagar, Nimkhedi,
Shivar, Jalgaon,
Jalgaon 425 001.
2. Shri. Bibhishan Balkrishna Patil,
Age: 60 years, Occupation: Service,
R/o: Survey No.68 2A/2B,
Plot No.13, Sangamwadi,
Pune- 411 003.
3. Shri. Ashok Chandrabhan Jadhav,
Age: 53 years, Occupation: Service,
R/o: A-5, Harshada Enclave, Samata Nagar,
New Sangavi, Pune 411 061.
4. Dr. Ulhas Madhukar Borle,
Age: 59 years, Occupation: Service,
R/o 6/1 Shubham Karoti Apartment,
Near Vivekanand College,
Nagala Park Kolhapur,
Karvir, Kolhapur 416 003.
5. Dr. Murlidhar Shirpati Kamble,
Age: 48 years, Occupation: Service,
R/o: Flat No.102, HR-II,
Paranjape Schemes,
Near Ruikar Colony,
Mahadik Mal, Kolhapur 416 005.
6. Dr. Hasure Rajendra Ramgonda,
Age: 57 years, Occupation: Service,
R/o: Teachers Hostel R. No.4,
M.P.K.V. Rahuri, Digrao,
Ahmednagar 413 722.
7. Dr. Bapurao Govinda Gaikawad,
Age: 57 years, Occupation: Service,
R/o: Guruvihar Apartment, Flat No.4,
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Nagar Manmad Road, Rahuri Bk.
Taluka Rahuri, Near New Court,
Rahuri, Ahmednagar 413 705.
8. Shri. Sadashiv Bhaskar Deshmukh,
Age: 60 years, Occupation: Service,
R/o: Survey No.32/2/2/12, Sonai Park,
Near Said Sundaram, Kharadi Road,
Chandannagar, Pune 411 014.
9. Dr. Uday Shankarrao Shinde,
Age: 54 years, Occupation: Service,
R/o: 80/2, Near Agni Mandir,
Mahasve Road, Karanje,
Satara City 415 002.
10. Dr. Pushpalata Chandrakant Bhosale,
Age: 48 years, Occupation: Service,
R/o: B-307, Rajarampuri, 13th Lane,
Rajarampuri, Karvir, Kolhapur 416 008.
11. Dr. Hrishikesh Panditrao Sonawane,
Age: 47 years, Occupation: Service,
R/o: Flat No.B-202, Belleza, Hadapsar,
Malwadi, Pune City, Pune 411 028.
12. Shri. Baliram Bandu Meher,
Age: 62 years, Occupation: Retired,
R/o: Sr. No.161/162, Plot No.5,
Pooja Sankur, Flat No.101,
DP Road, Aundh,
Pune 411 007.
13. Dr. Subhash Bhanudas Shinde,
Age: 62 years, Occupation: Retired,
R/o: B-9, Swapnapurti Building,
Lane No.1, Shrinagar Colony,
Opposite to 10 Ellite Project,
Pimple Gurav, Pune 411 001.
14. Shri. Hemand Tukaram Patil,
Age: 60 years, Occupation: Retired,
R/o: At and Post Chinawal,
Taluka Raver, Dist. Jalgaon.
15. Dr. Bharat Dattatray Tamboli,
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Age: 62 years, Occupation: Retired,
R/o: S. No.71/1,2,
Krishnanagar Lane No.2,
New Sangavi Pune, Maharashtra 411 061.
16. Nanasaheb Karbhari Kale,
Age: 59 years, Occupation: Service,
R/o: C-0401, Sai Laurel Park,
47/1, Vidyanagar, Pimple Gurav,
Pune 411 061. ...Petitioners
Versus
1. The State of Maharashtra,
Through the Secretary for
Agricultural Department
Mantralaya, Mumbai.
2. Mahatma Phule Krishi Vidyapeeth,
Rahuri, Tq. Rahuri,
Dist. Ahmednagar,
through its Registrar. ..Respondents
...
Mr. V. D. Hon, Senior Advocate i/by Mr. A. V. Hon,
Advocate for the Petitioners.
Mr. S. B. Yawalkar, AGP for Respondent No.1.
Mrs. J. P. Reddy, Advocate for Respondent No.2.
...
AND
WRIT PETITION NO.5947 OF 2020
1. Balwant S/o Gopalrao Pawar,
Age 64 years, Occ. Retired,
R/o. 5, Swami Niwas, Bhakti Apartment,
Vishal Nagar, Near Saibaba Mandir,
New D.P. Road, Pune 411 027. ...Petitioner
Versus
1. The State of Maharashtra,
Through the Secretary for
Agricultural Department
Mantralaya, Mumbai.
2. Mahatma Phule Krishi Vidyapeeth,
Rahuri, Tq. Rahuri,
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Dist. Ahmednagar,
through its Registrar. ..Respondents
...
Mr. V. D. Hon, Senior Advocate i/by Mr. A. V. Hon,
Advocate for the Petitioner.
Mr. S. B. Yawalkar, AGP for Respondent No.1.
Mr. M. P. Gude, Advocate for Respondent No.2.
...
AND
WRIT PETITION NO.7247 OF 2020
1. Dr. Baban Yuvraj Suryawanshi,
Age: 62 years, Occupation: Service,
R/o: Shiv Krupa, Plot No.61,
Behind Savedi Bus Stop,
Savedi, Ahmendnagar 414 003.
2. Shri Vitthal Ramdas Pati,
Age: 55 years, Occupation: Service,
R/o: C/o Kantabai Fandhade,
Rajeshwar Colony,
Rahuri (Kh.), Taluka Rahuri,
District: Ahmednagar.
3. Dr. Sumersingh Dhondusing Rajput,
Age: 53 years, Occupation: Service,
R/o: Plot No.39, Gat No.27,
Nivruttinagar, Near Kerali Mandi, Jalgaon.
4. Dr. Ramesh Shankar Bhadane,
Age: 46 years, Occupation: Service,
R/o: Plot No.45, Gat No.105,
Shriram Samarth Colony,
Opp. Manav Seva School, Jalgaon 425 001.
5. Dr. Chatur Sayaji Thakare,
Age: 54 years, Occupation: Service,
R/o: Mangal Murti Colony,
Plot No.50,
Near Panchavati Gas, Deopur, Dhule.
6. Shri. Pankaj Bhatu Deore,
Age: 44 years, Occupation: Service,
R/o: Plot No.154, Flat No.6,
Shrinivas Park Apartment,
Shivparvati Colony, Datta mandir,
Deopur, Dhule 424 005.
7. Dr. Ramesh Digambar Chaudhari,
Age: 58 years, Occupation: Service,
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R/o: Plot No.91, Vidyanagar,
Opposite Mundade High School,
Vidyanagar, Pimprala,
Jalgaon.
8. Dr. Rakesh Balvantrao Sonawane,
Age: 49 years, Occupation: Service,
R/o: Flat No.11, Ganesh Pooja Apartment,
Swami Samarth Nagar,
Behind Jatra Hotel,
Nashik-3.
9. Shri. Munjabapu Haribhau Gawade,
Age: 52 years, Occupation: Service,
R/o. Digras, Mahatma Phule Krishi Vidyapeeth,
Rahuri, Taluka Rahuri, Dist. Ahmednagar.
10. Shri. Dagadu s/o. Dashrath Pardhe,
Age: 43 years, Occupation: Service,
R/o. Chandrapur, Taluka Rahata,
Dist. Ahmednagar.
11. Shri. Shashikant s/o Vikram Patil,
Age: 53 years, Occupation: Service,
R/o> Talai, Taluka Erandol,
Dist. Jalgaon.
12. Dr. Maruti s/o. Harhari Waghmare,
Age: 57 years, Occupation: Service,
R/o. B-3, 10 Bunglow,
Agriculture College Campus,
Shivajinagar, Pune.
13. Kailas Bhaurao Nawale,
Age: 59 years, Occupation: Service,
R/o. E-32, Ravindra Colony,
Mahatma Phule Krushi Vidyapeeth,
Rahuri, Ahmednagar. ...Petitioners
Versus
1. The State of Maharashtra,
Through the Secretary for
Agricultural Department
Mantralaya, Mumbai.
2. Mahatma Phule Krishi Vidyapeeth,
Rahuri, Tq. Rahuri,
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Dist. Ahmednagar,
through its Registrar. ..Respondents
...
Mr. V. D. Hon, Senior Advocate i/by Mr. A. V. Hon,
Advocate for the Petitioners.
Mr. S. B. Yawalkar, AGP for Respondent No.1.
Mrs. J. P. Reddy, Advocate for Respondent No.2.
...
CORAM : R. D. DHANUKA &
S. G. MEHARE, JJ.
RESERVED ON : 11th April, 2022.
PRONOUNCED ON : 06th May, 2022.
JUDGMENT (Per R. D. Dhanuka, J.):-
1. Rule. Rule is made returnable forthwith.
2. Mr. Yawalkar, learned Addl. G.P. for
respondent no.1 in all Writ Petitions waives
notice. Mr. Shelke, learned counsel for respondent
no.2 in WP/1743/2020 waives notice. Mr. Gude,
learned counsel for respondent no.2 in WP/5947/2020
waives notice. Mrs. Reddy, learned counsel for
respondent no.2 in WP/7247/2020 and WP/7248/2020
waives notice
3. Writ Petition No.1743/2020 is filed by the
petitioners under Article 226 of Constitution of
India inter alia praying for Writ of Certiorari for
quashing and setting aside orders/communications
dated 30.06.2010, 30.03.2011, 31.05.2013 and
30.06.2014 annexed at Exhibits-F, H, I and J
respectively of the Under Secretary, Government of
Maharashtra, Agriculture, animal Husbandry, Dairy
Development Department and Fisheries Department and
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Circular dated 17.08.2010 issued by respondent no.2
Mahatma Phule Agriculture University, Rahuri.
4. The petitioners have also prayed for Writ
of Mandamus against respondents not to make any
recovery from the salary or otherwise the
retirement benefits received by the petitioners
while working on the posts of Senior Research
Assistants with the respondent no.2-University.
5. Civil Application No.1278/2022 is filed by
the applicants inter alia praying for impleadment
of the applicant no.28 as petitioner no.28. Civil
Application No.5671/2022 is filed by the applicants
inter alia praying for impleadment of applicant
no.29 as petitioner no.29.
6. Writ Petition No.7248/2020 is filed by the
petitioners under Article 226 of Constitution of
India inter alia praying for Writ of Certiorari for
quashing and setting aside orders/communications
dated 30.06.2010, 30.03.2011, 31.05.2013 and
30.06.2014 annexed at Exhibits-F, H, I and J
respectively of the Under Secretary, Government of
Maharashtra, Agriculture, animal Husbandry, Dairy
Development Department and Fisheries Department and
Circular dated 17.08.2010 issued by respondent no.2
Mahatma Phule Agriculture University, Rahuri.
7. The petitioners have also prayed for Writ
of Mandamus against respondents not to make any
recovery from the salary or otherwise the
(11) wp-1743-2020 & ors.
retirement benefits received by the petitioners
while working on the posts of Senior Research
Assistants with the respondent no.2-University.
8. Writ Petition No.5947/2020 is filed by the
petitioner under Article 226 of Constitution of
India inter alia praying for Writ of Certiorari for
quashing and setting aside orders/communications
dated 30.06.2010, 07.09.2019, 30.03.2011,
31.05.2013 and 30.06.2014 annexed at Exhibits-F, H,
I, J and K respectively of the Under Secretary,
Government of Maharashtra, Agriculture, animal
Husbandry, Dairy Development Department and
Fisheries Department and Circular dated 17.08.2010
issued by respondent no.2 Mahatma Phule Agriculture
University, Rahuri.
9. The petitioner has also prayed for Writ of
Mandamus against respondents not to make any
recovery from the salary or otherwise the
retirement benefits received by the petitioner
while working on the post of Senior Research
Assistant with the respondent no.2-University and
further seeks order and direction against
respondent no.2-University to forthwith release the
amount of Rs.7,35,702/- withheld from the
retirement benefits of the petitioner.
10. Writ Petition No.7247/2020 is filed by the
petitioners under Article 226 of Constitution of
India inter alia praying for Writ of Certiorari for
quashing and setting aside orders/communications
(12) wp-1743-2020 & ors.
dated 30.06.2010, 30.03.2011, 31.05.2013 and
30.06.2014 annexed at Exhibits-F, I, J and K
respectively of the Under Secretary, Government of
Maharashtra, Agriculture, animal Husbandry, Dairy
Development Department and Fisheries Department and
Circular dated 17.08.2010 issued by respondent no.2
Mahatma Phule Agriculture University, Rahuri.
11. The petitioners have also prayed for Writ
of Mandamus against respondents not to release the
amount recovered from the salary of the petitioner
nos.5 to 8 while working on the post of Senior
Research Assistants with the respondent no.2-
University and also all the consequential benefits.
12. By consent of parties, all these petitions
and two civil applications were heard together and
being disposed of by a common order.
13. The learned counsel appearing for parties
jointly state that, facts and issues involved in
all these petitions are identical and have argued
before this Court in Writ Petition No.7248/2020 as
a lead matter. The learned counsel states that,
the reasons that would be recorded by the Court in
the said judgment would also apply to the companion
matters. The statement is accepted.
14. In so far as Civil Application
Nos.1278/2022 and 5671/2022 in Writ Petition
No.1743/2020 are concerned, the same are for
impleadment of the applicant nos.28 and 29 as
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petitioner nos.28 and 29 respectively. For the
reasons recorded in the Civil Applications, Civil
Applications are allowed in terms of prayer Clause
'A'. Amendment to be carried out within two weeks
from the date of this order. Amendment shall also
be carried out in the copies supplied to the
respondents' simultaneously.
15. Some of the relevant facts and arguments
in Writ Petition No.7248/2020 are as under:
The details of the petitioners are as
under:
Petitioner Date of Date of Date of Date of
No. appointment promotion promotion Retirement
on the post on the on the
of Junior post of post of
Research Senior Assistant
Assistant Research Professor
Assistant
1. 11.06.1984 25.02.1988 30.07.2004 NA
2. 05.01.1985 18.04.1990 10.08.2004 NA
3. 21.06.1993 17.08.2004 19.11.2009 NA
4. 24.05.1985 15.02.1988 20.12.2007 NA
5. 30.07.1996 14.08.2003 19.12.2007 NA
6. 01.05.1990 18.08.1998 18.08.2005 NA
7. 15.02.1988 11.05.1993 22.04.2001 NA
8. 30.05.1985 21.08.1998 25.07.2005 NA
9. 30.12.1998 01.09.2004 08.11.2009 NA
10. 18.10.1996 24.01.2008 31.07.2012 NA
11. 23.07.1996 18.08.2004 07.08.2008 NA(R)
12. 14.06.1982 12.02.1988 22.03.2001 31.05.2020
13. 27.04.1981 17.08.1982 26.09.1997 31.05.2020
14. 04.05.1984 05.03.1988 20.07.1996 31.05.2020
15. 07.11.1983 29.05.1985 25.06.2004 30.04.2020
16. 11.02.1988 20.07.1996 23.07.2004 NA
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16. The petitioner nos.2, 3, 6, 8, 12, 14 and
16 have completed their post graduation in M.Sc.
(Agri) and the petitioner nos.1, 4, 5, 6, 7, 9, 10,
11, 13 and 15 have completed their Ph.D. The
petitioner nos.12 to 15 have retired from service
and are apprehending recovery from their pensionary
benefits.
17. On 14.01.1999, the Government of
Maharashtra, Department of Agriculture issued a
Government Resolution fixing the revised pay scale
of the Senior Research Assistants. The revised pay
scale fixed was Rs.2200-3700, which was earlier
2000-3500 with qualification of M.Sc. and having
five years' service experience. It is the case of
the petitioners that, the petitioners were
receiving the pay scale as fixed by the Government
at the relevant time to the posts of Senior
Research Assistants. The State Government also
revised from time to time, the pay scale making
applicable as per the 4 th, 5th and 6th Pay
Commissions. Since, the petitioners were eligible
on the day when the scale was made applicable as
they had Master's degree and also requisite five
years' experience, they were paid the salary as per
the revised pay scale.
18. On 15.04.1999, the State Government,
Agriculture Department issued a resolution thereby
re-fixing the scale making effective from
01.01.1996. The scale fixed for the post of Senior
(15) wp-1743-2020 & ors.
Research Assistant was 7450-1150, Master's Degree
with Second Class in relevant subject with five
years' experience. The petitioners were eligible
for the payment as per the said revised pay scale.
The respondents had paid the pay scale as per
Government policy decision without raising any
objection. No grievance of any nature whatsoever
was made regarding the pay scale which had been
made applicable to the petitioners and salary were
drawn by these petitioners while working on the
posts of Senior Research Assistants at the relevant
time.
19. Sometime in the year 1990, Virendra
Shankarrao Gonge and others filed a Writ Petition
bearing No.2750/1990 before the Nagpur Bench of
this Court. The petitioners in the said Writ
Petition were the employees of the Punjabrao
Deshmukh Krishi Vidyapeeth working as Senior
Research Assistants and had prayed for deletion of
condition of five years' service experience imposed
for getting salary of pay scale of Rs.680-1250 in
the same cadre. This High Court at Nagpur Bench
delivered the judgment in the said Writ Petition on
21.06.2006 holding that, the condition of five
years total experience of University service for
claiming pay scale of Rs.680-1250 in the cadre of
Senior Research Assistant was unsustainable. The
five years' service had to be after the candidate
is appointed or promoted as the Senior Research
Assistant. This Court directed the respondents to
(16) wp-1743-2020 & ors.
step up the pay of the petitioners as mentioned in
the said judgment and to release to them all
consequential arrears within a period of four
months from the date of the said order.
20. Sometime in the year 2016, respondent
no.2-University filed Special Leave to Appeal (C)
No.14166 of 2016 in the Hon'ble Supreme Court
impugning the said judgment and order dated
17.07.2015 passed by this High Court at Nagpur
Bench. The Hon'ble Supreme Court passed an order
on 04.01.2018 dismissing the said Special Leave
Petition filed by respondent no.2-University. The
petitioners having apprehended that, the
respondents will recover the salary already paid to
the petitioners earlier on the basis of the
Government Resolution have filed this petition.
21. On 30.06.2010, the Government of
Maharashtra, Agriculture Department issued
communication to all the Registrar of Agriculture
Universities to take action in accordance with the
judgment and order of this Court in the said Writ
Petition and to step up all those working on the
posts of Senior Research Assistants and re-fix the
salary of the concerned employees.
22. The respondent no.2-University thereafter
issued Circular dated 17.08.2010 thereby issuing a
direction to all those, who had worked on the posts
of Senior Research Assistants and sanctioned the
pay scale of Rs.7450-225-11500 working in Class I,
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II and III employees, who were serving and/or
retired, the service books were to be verified
within a period of one month. The respondent no.2-
University issued an order on 26.08.2020 thereby
deciding not to withhold and/or recover the amount
from the Professors, who had already approached
this Court by way of Writ Petition No.7905/2014.
23. Mr. Hon, learned senior advocate for the
petitioners in these batch of petitions invited our
attention to the various documents annexed to the
writ petitions including the chart referred to
aforesaid. He invited our attention to the
judgment delivered by this High Court at Nagpur
Bench on 21.06.2006 in Writ Petition No.2750/1990
filed by Virendra Shankarrao Gonge and others
(supra) and also judgment delivered by the Division
Bench of this Court Bench at Aurangabad on
17.07.2015 in Writ Petition No.7905/2014 in case of
Popat Pandurang Kadu and Others Vs. State of
Maharashtra and Others and would submit that, five
years' service has to be completed after the
candidate is appointed or promoted as the Senior
Research Assistant.
24. It is submitted that, Circular issued by
the State Government was in pursuance of the
judgment of this High Court at Nagpur Bench in Writ
Petition No.2750/1990. He submits that, the
Aurangabad Bench in the said judgment in case of
Popat Pandurang Kadu and Others (supra) held that,
the Division Bench of the Nagpur bench did not
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direct the respondents to reduce the pay scale and
had directed to step up the pay scale of the
petitioners therein to bring at par with such of
the Senior Research Assistants like that of the
petitioners. If the pay scale was given to the
petitioners for more than 10 to 15 years back, the
recovery at such belated stage will not be
permitted in view of the judgment in the case of
State of Punjab Vs. Rafiq Masih (White Washer)
delivered on 18.12.2014. He submits that,
Aurangabad Bench has accordingly directed
respondents not to revise/re-fix the pay scale of
the petitioners pursuant to the impugned circular
dated 17.08.2010. He invited our attention to the
order dated 04.01.2018 passed by the Hon'ble
Supreme Court in the Special Leave Petition
No.14166/2016 filed by respondent no.2-University
before the Hon'ble Supreme Court impugning the
judgment of the Nagpur Bench thereby dismissing the
said Special Leave Petition.
25. The learned senior advocate for the
petitioners placed reliance on the judgment of this
Court in case of Vaijinath Jadhav Vs. State of
directing respondents not to make any recovery from
the salary of the petitioners for which he was not
eligible to hold the post of Assistant Accountant.
He submits that, principles laid down by this Court
in above referred case would apply to the facts of
this case. He also placed reliance in case of
(19) wp-1743-2020 & ors.
Koyala Udyog Kamgar Sanghtana Vs. The Central
Mining reported in 2007 (4) Mh.L.J. 766 holding
that, the recovery of amount of H.R.A. allegedly
paid in excess to the employees for no fault of the
employees cannot be permitted and thereby quashing
and setting aside the order of recovery.
26. The learned senior advocate for the
petitioners invited our attention to the circular
and order dated 26.08.2020 passed by respondent
no.2-University whereby decided not to withhold
and/or recover the amount from the Professors who
had already approached this Court by way of Writ
Petition No.7905/2014. He submits that, the
respondent no.2 cannot treat the petitioners
differently than the petitioners who had approached
this Court for impugning an action of recovery on
the part of respondents from their salary on the
ground of alleged excess payment. He submits that,
University cannot be allowed to treat the employees
similarly situated differently. The pay scale for
the post of Senior Research Assistant was fixed in
the year 1981. This High Court at Nagpur Bench in
Writ Petition No.2750/1990 had specifically
observed that, the question raised in that petition
was not called for and therefore, this Court had
not answered the said issue.
27. The learned senior advocate for the
petitioners submits that, case of Popat Pandurang
Kadu and Others (supra) was filed by the similarly
situated persons in this Court. This Court had
(20) wp-1743-2020 & ors.
allowed the said Writ Petition and had directed the
respondents not to revise/re-fix the pay scale of
the petitioners therein pursuant to the impugned
circular. The Special Leave Petition filed by the
State Government against the said judgment of this
Court delivered on 17.07.2015 came to be dismissed.
28. The learned senior advocate for the
petitioners placed reliance on the judgment
delivered at Aurangabad Bench comprising of one of
us (R.D. Dhanuka, J.) in case of Ramkrishna s/o
Narayan Ghuge Vs. State of Maharashtra and Others
reported in 2018 (2) Mh.L.J. 750 and in particular
paragraph nos.39 to 47 in support of the
submissions that, respondents cannot be allowed to
recover any amount from the salary of the
petitioners on account of alleged excess payment
made due to any mistake or any other ground or from
the retiral benefits of some of the petitioners.
29. Mr. Gude, learned advocate for respondent
no.2 in Writ Petition No.5947/2020, Mrs. Reddy,
learned advocate for respondent no.2 in Writ
Petition Nos.7247/2020 and 7248/2020 on the other
hand invited our attention to paragraph no.4 of the
judgment delivered by this High Court at Aurangabad
Bench in case of Popat Pandurang Kadu and Others
(supra). In the said judgment after considering
the judgment delivered at Nagpur Bench of this
Court had directed respondents not to revise/re-fix
the pay scale of the petitioners pursuant to the
impugned circular. It is submitted that, the
(21) wp-1743-2020 & ors.
present Writ Petition is time barred and suffered
from latches on the part of the petitioners.
30. It is submitted by the learned counsel
that, five years' service had to be after the
candidate is appointed or promoted as the Senior
Research Assistant and thus State Government had
directed all the Agriculture Universities including
his client to verify the cases of such employees
who had been granted higher pay scale of Senior
Research Assistant considering their past services
on the post of Junior Research Assistant. It was
further directed that, the University should count
five years' service only after appointment as
Senior Research Assistant for higher scale and
revised and re-fixed the salary of concerned
employees. He submits that, the said circular
dated 17.08.2010 was thus rightly issued by the
University.
31. It is submitted by the learned counsel for
the University that, the pay scale of the
petitioners was verified and it was discovered that
the higher pay scale of Rs.680-1250 was granted to
the petitioners considering their past services on
the posts of Junior Research Assistants. The
respondent no.2-University therefore, had passed an
order on 30.03.2011, 31.05.2013 and 30.06.2014
revising pay of the petitioners and hold them
eligible for grant of higher pay scale with effect
from the date of completion of five years of
service as Senior Research Assistants. He submits
(22) wp-1743-2020 & ors.
that, the Nagpur Bench of this Court has already
interpreted the condition of five years' service
experience in the said judgment for claiming pay
scale of Rs.680-1250 in the cadre of Senior
Research Assistants.
32. Mr. Yawalkar, learned Addl. G.P. for the
State submits that, as per Government Resolution
dated 01.08.1981, person to be held eligible for
the higher pay scale for the post of Senior
Research Assistant is required to pass post
graduation degree in the relevant subject and
should possess five years of experience. He also
placed reliance on the judgment delivered at Nagpur
Bench in Writ Petition No.2750/1990. He submits
that, the petitioners have given undertaking which
are binding upon them. He invited our attention to
the undertaking given by one of the petitioner and
would submit that, in view of such undertaking
given, this Writ Petition is not maintainable.
33. It is submitted that, period of five years
has to be counted after the candidate is appointed
or promoted as Senior Research Assistant. The
Government Resolution was issued after judgment of
Nagpur Bench came to be delivered and was
applicable to all existing employees and in future
in case of revision of pay scale. He placed
reliance on the judgment delivered by the Division
Bench of this Court at Aurangabad Bench on
07.10.2021 in Writ Petition No.950/2020 in case of
Hai Mujahid Ekbal Abdul Siddiqui Vs. The State of
(23) wp-1743-2020 & ors.
Maharashtra and Ors. in support of his submission
that, the petitioners having given undertaking not
to oppose the recovery, if any, by the employer in
case of excess payment cannot be allowed to
challenge such action of recovery.
34. The learned Addl. G.P. placed reliance on
the following judgments:
1. Chandi Prasad & Ors. Vs. State of Uttarakhand
& Ors. reported in (2012) 8 SCC 417.
2. High Court of Punjab & Haryana & Ors. Vs.
Jagdev Singh reported in 2016 (14) SCC 267.
3. Walmik Sitaram Sirsath Vs. State of
Maharashtra & Ors. reported in 2018 (4)
Mh.L.J. 490.
4. Mandeep Singh Kohli & Ors. Vs. Union of India
& Ors. reported in 2021 (1) Mh.L.J. 370
35. Mr. Hon, learned senior advocate for the
petitioners submits that, the pay fixation was done
by the University. 51 identically situated
employees were granted reliefs. The reliefs were
not granted to the petitioners herein on the ground
that, they were not parties to the earlier Writ
Petition. He submits that, the recovery cannot be
permitted beyond the period of limitation. The
revised pay scale was fixed by the State Government
after delivery of Nagpur Bench judgment. He
submits that, the Nagpur Bench had rendered a
decision in the year 2006. The action of recovery,
if any, could be taken in the year 2006. The
Government Resolution was issued in the year 2010.
The circular was issued by the University in the
year 2011. The recovery proposed is in the year
2020.
(24) wp-1743-2020 & ors.
REASONS AND CONCLUSIONS
36. A perusal of the chart annexed in Writ
Petition No.7248/2020 indicates that, all these
petitioners were appointed on the posts of Junior
Research Assistants during the period between 1984
and 1996. They were promoted on the post of Senior
Research Assistants during the period between 1988
and 2008. They were promoted on the posts of
Assistant Professors during the period between 1996
and 2012. 12 of the petitioners have not retired
till date. 3 of the petitioners have retired on
31.05.2020 and one petitioner has retired on
30.04.2020.
37. Virendra Shankarrao Gonge and others had
filed a Writ Petition bearing No.2750/1990 before
the Nagpur Bench, who were working as Senior
Research Assistants and had prayed for deletion of
condition of five years experience imposed for
getting pay scale of Rs.680-1250 in the same cadre.
There was no dispute that all the petitioners
therein were duly qualified and had been selected
as Senior Research Assistants on the basis of Post
Graduate Degree of M.Sc. (Agri.) held by them. The
pay scale of those Senior Research Assistants was
revised. It was provided that, the higher scale
would be paid to those Senior Research Assistants
who had educational qualification of Master's
Degree with atleast Second Class in relevant
subject with five years' experience in research
(25) wp-1743-2020 & ors.
with identifiable research contribution. The said
pay scale was prescribed from 01.08.1981.
38. The said condition of five years'
experience in research was impugned in the said
petition. This Court in the said judgment held
that, the higher pay scale of Rs.2200-3700 had been
sanctioned to Senior Research Assistants for their
earlier pay-scale of Rs.2000-3500, if they were
having Post Graduate qualification in second class
with experience of five years with University. The
experience of five years with University had been
treated as factor to distinguish and classify the
Senior Research Assistants into two pay-scale. It
was apparent that, the Junior Research Assistants
with total five years experience had been given
higher pay scale by University after they became
Senior Research Assistants. A senior Senior
Research Assistant already in said cadre on that
day continued to draw wages in lower pay scale
because he had not completed five years' service.
39. This Court accordingly held that, a person
with B.Sc. Degree in first division with
distinction has been treated as equivalent to a
person holding B.Sc. Degree in Second class with
three years experience and similarly, a person with
M.Sc. (Agri.) degree has also been treated as
equivalent to person with B.Sc. (Agri.) second
class with three years experience. This Court
held that, the grievance of the petitioners could
(26) wp-1743-2020 & ors.
be ventilated by directing the respondents to step
up their pay to the existing pay of the Senior
Research Assistants who got the fixation in scale
of 680-1250 accordingly prior to them because of
completion of total five years of service in
University, but is junior to them in cadre of
Senior Research Assistants. This Court accordingly
held that, if pay of petitioners is stepped up, no
injustice would be caused to such junior in cadre
of Senior Research Assistants who were already
placed in time scale of Rs.680-1250 at the relevant
time and whose salary had been revised accordingly
from time to time.
40. This Court accordingly held that,
condition of having five years total experience of
University service for claiming pay scale of
Rs.680-1250 in the cadre of Senior Research
Assistant was unsustainable. The five years
service has to be after the candidate is appointed
or promoted as the Senior Research Assistant. The
Nagpur Bench did not think it necessary to quash
and set aside the said condition and directed the
respondents to step up the pay of the petitioners
therein and to release to them all consequential
arrears within a period of four months from the
date of the said judgment.
41. A perusal of the said judgment of the
Nagpur Bench clearly indicates that, the Nagpur
Bench directed the respondents to step up the pay
(27) wp-1743-2020 & ors.
of these petitioners to the existing pay of the
Senior Research Assistants, who got the fixation in
scale of 680-1250 accordingly prior to them because
of completion of total five years of service in
University, but was junior to them in cadre of
Senior Research Assistant with a view to do justice
to the petitioners and not to do injustice to such
juniors in cadre of Senior Research Assistant who
were already placed in time scale of Rs.680-1250 at
the relevant time and whose salary had been revised
accordingly from time to time.
42. A perusal of the Government Resolution and
Circular issued by the University clearly indicates
that, the said judgment of the Nagpur Bench has
been misinterpreted by the respondents for
suggesting recovery of the alleged over paid amount
due to said re-fixation of pay.
43. The Aurangabad Bench of this Court in case
of Popat Pandurang Kadu and Others (supra) had
considered the petition filed by the petitioners
who had joined services with the University as
Junior Research Assistants and had completed their
Post Graduation in M.Sc. (Agri.). They were also
promoted to Senior Research Assistants. The
revision of pay scale had been done applying the
scale as per 5th and 6th Pay Commissions. The State
Government had issued Resolution on 15.04.1999
thereby re-fixing the scale with effect from
01.01.1996. This Court considered the submissions
(28) wp-1743-2020 & ors.
made by the learned senior advocate for the
petitioners that, the Division Bench of Nagpur
Bench in the judgment delivered on 21.06.2006 did
not direct to reduce the pay scale of the Senior
Research Assistants in the scale of Rs.680-1250,
but had directed to step up the pay scale of the
petitioners therein so as to bring them at par with
the pay scale which had been received by the
present petitioners in the scale of Rs.680-1250.
44. The Aurangabad Bench of this Court
accepted the submissions made by the learned senior
advocate in the said judgment in case of Popat
Pandurang Kadu and Others (supra) that, the Nagpur
Bench had not directed to reduce the pay scale, but
had directed to step up the pay scale of the
petitioners therein so as to bring them at par with
such of the Senior Research Assistants like that of
the petitioners in the said petition. This Court
accordingly held that, if the pay scale was given
to the petitioners more than 10 to 15 years back,
the recovery at such belated stage will not be
permitted in view of the judgment in the case of
State of Punjab vs. Rafiq Masih (White Washer)
(supra). The Aurangabad Bench accordingly in the
said judgment directed the respondents not to
revise/re-fix the pay scale of the petitioners
pursuant to the impugned circular nor any recovery
shall be claimed against the petitioners pursuant
to the impugned communication.
45. In our view, the said judgment of
(29) wp-1743-2020 & ors.
Aurangabad Bench of this Court in case of Popat
Pandurang Kadu and Others (supra) would apply to
the facts of this case. The Hon'ble Supreme Court
by order dated 04.01.2018 has already dismissed the
Special Leave Petition filed by the University
arising out of the said judgment delivered by this
Court on 17.07.2015. The impugned communication
and the Government Resolutions/Circulars issued by
the State Government or the respondent no.2-
University as the case may be are contrary to the
judgment delivered by the Aurangabad Bench of this
Court in case of Popat Pandurang Kadu and Others
(supra).
46. The Division Bench of this Court at
Aurangabad in case of Ramkrishna s/o Narayan Ghuge
(supra) has considered the judgment of the Hon'ble
Supreme Court in case of State of Punjab and Others
Vs. Rafiq Masih (White Washer) and Others reported
in (2015) 4 SCC 334 and other various judgments
would not assist the case of the petitioners.
47. In our view, the undertaking pressed in
service by the learned counsel for the University
and the State is contrary to the principles laid
down by the Hon'ble Supreme Court in case of State
of Punjab and Others Vs. Rafiq Masih (White Washer)
and Others (supra).
48. In so far as the judgments relied upon by
the learned Addl. G.P. are concerned, there is no
dispute about the proposition of law that, any
(30) wp-1743-2020 & ors.
amount paid or received without authority of law
can always be recovered. The facts before this
Court in this judgment were totally different. The
Circulars/Resolutions issued by the State
Government or the University are issued by
misinterpreting the judgment of the Nagpur Bench.
49. The Aurangabad Bench of this Court has
interpreted the judgment of the Nagpur Bench and
has thereafter stopped the action of recovery from
the payment of salary or retirement benefits. The
said judgment would apply to the facts of this
case. In our view, the petitioners have made out a
case for grant of reliefs as prayed. We
accordingly pass the following order:
(a) Writ Petition No.7248/2020 is allowed in terms
of prayer Clause (B) to (D). If any amount is
recovered from the salary of the petitioners or
from the retirement benefits of the petitioners,
the same shall be refunded to the petitioners
within a period of four weeks from today.
(b) Writ Petition No.1743/2020 is allowed in terms
of prayer Clause (B) to (D). If any amount is
recovered from the salary of the petitioners or
from the retirement benefits of the petitioners,
the same shall be refunded to the petitioners
within a period of four weeks from today.
(c) Writ Petition No.5947/2020 is allowed in terms
of prayer Clause (B) to (D). If any amount is
(31) wp-1743-2020 & ors.
recovered from the salary of the petitioner or from
the retirement benefits of the petitioner, the same
shall be refunded to the petitioner within a period
of four weeks from today.
(d) Writ Petition No.7247/2020 is allowed in terms
of prayer Clause (B) to (E). If any amount is
recovered from the salary of the petitioners or
from the retirement benefits of the petitioners,
the same shall be refunded to the petitioners
within a period of four weeks from today.
(e) Rule is made absolute in aforesaid terms.
(f) Parties to act on the authenticated copy of
this order.
(S. G. MEHARE) (R. D. DHANUKA)
JUDGE JUDGE
Devendra/May-2022
