Rajaram Tukaram Malghe And Ors vs The State Of Maharashtra Thru ...
2023 Latest Caselaw 3696 Bom

2023:BHC-AS:11377-DB

             k                                       1/3                  21 wp 1890.20 as.doc




                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION

                                          WRIT PETITION NO.1890 OF 2020

             Rajaram Tukaram Malghe & Ors.                                           ....Petitioners
                   V/S
             The State of Maharashtra & Ors.                                         ....Respondents
                                                     ...
             Mr. Vinod P. Sangvikar for the Petitioner.
             Mrs. R.A. Salunkhe, AGP for Respondent No.1-State.
             Mr. Rajesh Datar for Respondent Nos.2 and 3.
                                                     ...
                                              CORAM: S.V. GANGAPURWALA, ACJ &
                                                        SANDEEP V. MARNE, J.

DATE : 13 APRIL 2023.

P.C.:

1 The Petitioners are challenging the recovery claim.

2 The recovery is on account of an alleged error in fixing pay of Petitioners

in pay bands of Sixth Pay Commission in the year 2009.

3 The learned Counsel for the Petitioners submits that the Petitioners

would not challenge the repay fixation done but are restricting the challenge to

only recovery.

4 The learned Counsel for the Petitioners relies upon the judgment of the

Apex Court in case of State of Punjab vs. Rafiq Masih reported in (2015) 4 SCC

334.

             katkam                                        1/3


 k                                       2/3                     21 wp 1890.20 as.doc




5         According to the learned Advocate for Respondent Nos.2 and 3 the

Petitioners had given undertaking that in case subsequently it is found that

because of erroneous pay fixation excess amount was paid they would refund

it.

6 The learned Counsel for the Respondents relies upon the judgment of

the Apex Court in case of High Court of Punjab and Haryana vs. Jagdev Singh

reported in (2016) 14 SCC 267.

7         We have considered the submissions.



8         Some of the Petitioners are at the fag end of their service career. It is not

disputed that all these Petitioners are class IV employees.

9 The recovery claim pertaining to the year 2009 is for a period in excess

of five years. It is not the case of Respondents that the erroneous pay fixation

was done on account of misrepresentation or fraud by the Petitioners. Now it

would be iniquitous to recover the amount from the Petitioners. The

parameters laid down by the Apex Court in case of Rafiq Masih (supra) are

applicable in the present case.

katkam                                        2/3


 k                                     3/3                       21 wp 1890.20 as.doc




10       In case of Jagdev Singh (supra) the person therein was a class I judicial

officer.



11       We have perused the undertakings relied by the Respondents. In some

of the cases even dates are not mentioned on the said undertakings and in case

of 2 to 3 Petitioners the undertakings are not available. The undertakings are

cyclostyle one. It appears that the said undertakings are taken in usual course

while undertaking fixation on account of Sixth Pay Commission. The amount

sought to be recovered is also not substantial.

12 In light of above, the impugned order, to the extent of recovery, is

quashed and set aside. It is made clear that as far as repay fixation is

concerned, the same has not been disturbed.

13 The Writ Petition is disposed of. No costs.

     (SANDEEP V. MARNE, J.)                       (ACTING CHIEF JUSTICE)




katkam                                      3/3