Bombay High Court
Ajay Dhirsingh Chauhan vs The State Of Maharashtra, Thr. ... on 9 November, 2022
Bench: A.S. Chandurkar, M. W. Chandwani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 3231 OF 2021
Ajay Dhirsingh Chauhan,
Aged about 58 years, Occ.: Retd. Employee,
R/o. 203, Satyam Apartment, Road No. 5,
Vishwakarma Nagar, Nagpur-440027. . . . PETITIONER
...V E R S U S..
1. The State of Maharashtra through its
Secretary, Higher & Technical Education,
Mantralaya, Mumbai-400032.
2. The Joint Director of Higher Education,
Nagpur Region, Nagpur,
Old Morris Collage Building,
Sitabardi, Nagpur.
3. The Registrar,
Rashtasant Tukdoji Maharaj Nagpur
University, Jamnalal Bajaj Administrative
Building, Mahatma Jyotiba Fule Campus,
Ambajari T-Point Road, Nagpur. . . . RESPONDENTS
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Shri J. R. Kidilay, Advocate for petitioner.
Shri A. S. Fulzele, Additional Government Pleader for respondent no.
1 and 2/State.
Shri N. D. Khamborkar, Advocate for respondent no. 3.
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CORAM :- A. S. CHANDURKAR & M. W. CHANDWANI, JJ.
DATED :- 09.11.2022
ORAL JUDGMENT (PER : A. S. CHANDURKAR, J.) :-
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Heard.
2. Rule. Rule made returnable forthwith and heard learned
counsel for the parties.
3. The challenge in this Writ Petition is to the order dated
03.11.2020 directing recovery of the excess payment made to the
petitioner for a period from 01.10.2003 to 01.07.2012.
4. It is the case of the petitioner that he was appointed on
the post of Laboratory Attendant in the Open category on daily wages
on 08.10.1996 and thereafter on 27.01.1998 he came to be promoted
on the post of Clerk-cum-Typist initially for a period of one year. On
21.09.2000, he was further promoted to the post of Senior Grade
Clerk. His service were subsequently regularized by order dated
21.10.2002. The petitioner attained the age of superannuation on
31.12.2020. It appears that prior thereto, on 28.10.2013 his services
were reverted on the post of Clerk-cum-Typist on account of failure to
submit Validity Certificate belonging to "Rajput Bhamta" (Vimukti Jati-
A). The said order of reversion was challenged by the petitioner in
Writ Petition No. 6011/2013 (Ajay Dhirsing Chauhan Vs. The State of
Maharashtra, decided on 28.01.2015) and therein directions were
issued to continue him in the employment subject to completion of
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verification of his caste claim. However, on 07.08.2018 he was again
promoted from Open category to the post of Senior Grade Clerk. An
objection was raised by the Office of the respondent no. 2 that since
the excess payment was made to the petitioner from 01.10.2003 and
as he had failed to submit Validity Certificate, that amount was liable
to be recovered from the petitioner. Acting on this communication, the
respondent no. 3 on 03.11.2020 has issued the impugned
communication seeking to recover the alleged excess payment from
the petitioner.
5. The learned counsel for the petitioner submits that during
the petitioner's entire service, he did not seek any benefits whatsoever
of his caste. He was appointed and promoted in the Open category
and the Roster came to be prepared for the first time in 2014. Placing
reliance on the decision in the case of State of Punjab Vs. Rafiq Masih
(White Washer) [2015(1) ALL MR 957 (S.C.)] and especially
paragraph No. 12 thereof, it is submitted that since the petitioner
belongs to Class-III service and the excess payment was made during
the period that was more than 5 years prior to the order of recovery, it
would be inequitable to direct such recovery from the petitioner.
According to him, there was no mis-representation by the petitioner
and even after the order of reversion dated 28.10.2013, the petitioner
was again promoted on the post of Senior Grade Clerk on 07.08.2018.
4 30-wp-3231-21j.odt
It was thus submitted that the impugned direction to recover the
alleged excess payment be set aside.
6. The learned counsel for the respondent no. 3-University
supported the direction to recover the excess payment from the
petitioner. It was submitted that relying upon the communication
dated 23.09.2020 issued by the Office of the Joint Director, Higher
Education, Nagpur, the excess payment from 01.10.2003 was sought to
be recovered from the petitioner. As per the Roster position, the
petitioner had been promoted from Vimikuti Jati-A category. Hence,
there was no reason to interfere with the impugned communication.
The learned Additional Government Pleader appearing for the
respondent nos. 1 and 2 also supported the said statement.
7. On hearing learned counsel for the parties and after
perusing the documents on record, it is clear that initial order of
appointment dated 27.01.1998, order of promotion dated 21.09.2000
as well as subsequent order of regularization dated 21.10.2002 do not
indicate that such benefits were granted as a result of the petitioner
belonging to Vimukta Jati-A category. Though the services of the
petitioner were reverted on 28.10.2013, he was again promoted on he
post of Senior Grade Clerk on 07.08.2018. The recovery as directed is
therefore from 01.10.2003 to 01.07.2012. It is seen that ratio of the
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decision in the case of Rafiq Mashi (supra) is squarely attracted to the
present case, especially the observations in paragraph No. 12 thereof
and the same reads as under:-
"12. 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 herein above, we may, as a ready
reference, summarise the following few situations, wherein
recoveries by the employers, would be impermissible in law:
(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 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."
8. Admittedly, the petitioner belongs to Class-III service. The
recovery has been directed by order dated 03.11.2020 and the
petitioner superannuated from service on 31.12.2020. The excess
payment has been made for a period exceeding 5 years before the
order of recovery was issued. The excess payment was made from
01.10.2003 to 01.07.2012 while the order of recovery is dated
03.11.2020. The petitioner has also discharged duty on the higher
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post. For all these reasons, we are satisfied that it would be
inequitable as well harsh to direct such recovery from the petitioner.
9. In that view of the matter, the impugned order dated
03.11.2020 issued by respondent no. 3-University is quashed and set
aside. It is held that no amount is liable to be recovered from the
pensionary benefits of the petitioner. If any amount is withheld
pursuant to the said order, the same shall be released within a period
of eight weeks from the receipt of this order.
10. Rule is made absolute in the aforesaid terms with no order
as to costs.
(M. W. CHANDWANI, J.) (A. S. CHANDURKAR, J.)
Digitally
signed by
JAISWAL
JAISWAL RAJNESH
RAJNESH RAMESH
Date:
RAMESH 2022.11.11
14:59:30
+0530
RR Jaiswal
