Bombay High Court
Dr. Mrs. Shyla W/O T.O. Abraham ... vs The State Of Maha. Through ... on 28 April, 2023
Bench: A.S. Chandurkar, Vrushali V. Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3011 OF 2013
Dr.Mrs. Shyla w/o T.O.Abraham,(Dead through her LR)
Amendment carried 1.
out as per Court's
Abraham s/o Thundiparambil Oonnunny,
order dated
04.02.2015
Aged about 64 years, Occ. Free Lancer Reporter
(22.12.2015)
Sd/- Counsel for
R/o.31, Pushpakunj Society, Arni Road,
Petitioner Yavatmal. ..... PETITIONER
...V E R S U S...
1. The State of Maharashtra,
through its Secretary, Higher and
Technical Education Department,
Mantralaya, Mumbai-400 032.
2. The Joint Director,
Higher Education Department,
Amravati Region, Amravati.
3. The Regional Performance Assessment
Committee, through its Chairman,
Office at the Sant Gadge Baba Amravati
University,
Campus, Amravati.
4. The Principal,
Lok Nayak Bapuji Aney Mahila
Mahavidyalaya,
Yavatmal-445 001. ....... RESPONDENTS
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Ms Gauri Venkatraman, Advocate for petitioner.
Ms S.S.Jachak, Assistant Government Pleader for respondent nos. 1 and 2.
Shri R.L.Khapre, Senior Advocate with Shri Vidit Lohiya, Advocate for
respondent no. 4.
---------------------------------------------------------------------------------------------------------
CORAM :- A.S.CHANDURKAR AND MRS. VRUSHALI V. JOSHI, JJ.
ARGUMENTS WERE HEARD ON : 03.02.2023
JUDGMENT IS PRONOUNCED ON : 28.04.2023
::: Uploaded on - 02/05/2023 ::: Downloaded on - 02/05/2023 23:42:11 :::
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JUDGMENT (Per A.S.CHANDURKAR, J.)
Challenge raised in this writ petition is to the communication
dated 31.05.2013 issued by the respondent no.4-Principal of the College
where the wife of the present petitioner was serving as Lecturer in the
subject of English. During pendency of the writ petition the original
petitioner expired and her husband has been brought on record as her legal
heir. By amending the writ petition, a challenge is also raised to the recovery
of amount of Rs.5,56,477/- which according to the respondent no.2-Joint
Director, Higher Education Department, Amravati was as a result of excess
payment made to the original petitioner by incorrectly determining the date
for entitlement to benefit of senior grade and selection grade pay-scale.
2. The facts relevant for considering the challenge as raised are that
the original petitioner was appointed as Lecturer in English on 22.11.1993
and her appointment was approved on 20.03.1997. The original petitioner
acquired Ph.D. qualification on 16.10.2003. She was granted benefit of
selection grade from 01.08.2007 and her pay fixation was approved on
01.07.2009. The original petitioner was to superannuate at the age of 60
years on 30.06.2011. However, in view of the Government Resolution dated
01.09.2012 she became entitled to continue in service till the age of 62
years. Accordingly, the original petitioner was again permitted to join in
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service on 12.09.2012 and was to superannuate on 30.06.2013 when she
would have attained the age of 62 years. A notice to that effect was issued
by the fourth respondent on 31.05.2013. Unfortunately, the original
petitioner expired on 20.06.2013 before attaining the age of 62 years.
Thereafter on 24.07.2013 the Joint Director of Higher Education issued a
communication to the College stating therein that since the original
petitioner obtained Ph.D. qualification on 16.10.2003, she would be entitled
for senior grade pay-scale of 15600-39100 with Grade Pay of Rs.7000/- on
16.10.2007. It was further stated that the original petitioner would be
entitled for selection grade pay-scale of 15600-39100 with Grade Pay of
Rs.8000/- from 16.10.2012. Since such benefit was granted from an earlier
date, it was directed that the College should determine the amount of over
payment as made and submit the calculations in that regard. For that
purpose, the original service book was returned to the Principal. Acting on
the aforesaid basis, amount of Rs.5,56,477/- was found to be the amount of
over payment and the same was recovered from the retiral benefits of the
original petitioner. It is in this factual backdrop that the writ petition is
required to be adjudicated.
3. Ms Gauri Venkatraman, learned counsel for the petitioner
submitted that the action of recovery of Rs.5,56,477/- from the service
benefits of the original petitioner was highly unjustified. These benefits were
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given to the original petitioner in accordance with law after considering the
relevant executive instructions by a duly constituted Committee in that
regard. The original petitioner received the said benefits for the entire
service career during her life time. The recovery made was after her death
and such recovery was not permissible in the light of the law laid down by
the Hon'ble Supreme Court in Syed Abdul Qadir and others vs. State of Bihar
and others (2009) 3 SCC 475. The original petitioner could not be blamed
for receiving such amounts and there was no allegation that there was any
misrepresentation made or fraud practised by the original petitioner. It was
further submitted that the respondents were not justified in relying upon the
Government Resolution dated 18.10.2001 when in fact, the earlier
Government Resolution dated 11.12.1999 was applicable to the facts of the
present case. After considering the relevant Government Resolution the
service book had been corrected and therefore there was no justification on
the part of the respondents in initiating the impugned action. On the
contrary, despite being held entitled to continue in service till the age of 62
years, the original petitioner had not been paid her arrears of salary for the
period from July 2011 to November 2012 which was an amount of
Rs.6,24,139/-. The learned counsel also placed reliance on the decisions in
Mahesh Bapurao Swami, Dist. Hingoli vs. State of Maharashtra (2013) SCC
Online Bom 1148 as well as the judgment of the Division Bench in Writ
Petition No.11477 of 2010 (Asha Ramdas Bidkar and others vs. State of
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Maharashtra and others) decided on 01.08.2013 at the Aurangabad Bench.
It was thus submitted that the prayers made in the writ petition ought to be
granted.
4. Ms S.S.Jachak, learned Assistant Government Pleader for the
respondent nos. 1 and 2 opposed the aforesaid submissions and relied upon
the affidavit in reply as well as return filed by the said respondents. At the
outset, it was submitted that though the age of superannuation was extended
till the age of 62 years, it had been wrongly stated that the original petitioner
was entitled to continue in service till 30.06.2014. The correct the date of
superannuation was 30.06.2013. It was submitted that since the petitioner
had superannuated on 30.06.2011 after attaining the age of 60 years, she
started receiving pension. Having received the amount of pension from
01.07.2011 to 11.09.2012 which was the date she was again taken back in
service, the original petitioner was not entitled for salary for the aforesaid
period since she had not surrendered the amount of pension that was
received by her. The original petitioner worked for the period from
12.09.2012 to 17.06.2013 and she had received her salary for the aforesaid
period. In terms of the Government Resolution dated 18.10.2001 the
original petitioner was entitled to senior grade pay-scale after period of four
years of completing her Ph.D. which was 16.10.2007 and selection grade
pay-scale after a period of five years thereafter. However, these higher pay-
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scales were granted to the original petitioner from 16.10.2003 and on
01.08.2007 which resulted in over payment to her. These amounts were
thus being recovered from the service benefits of the original petitioner.
Since the original petitioner had expired prior to attaining the age of
superannuation of 62 years, it could not be said that the recovery proposed
was not permissible. It was thus submitted that there was no case made out
to interfere in writ petition.
5. Shri R.L.Khapre, learned Senior Advocate for the respondent no.4
supported the stand taken by the respondent nos. 1 and 2. According to
him, the recovery of the amount of Rs.5,56,477/- was justified since the
original petitioner had been granted benefit of senior grade and selection
grade pay-scale from an earlier date when in fact, she was not entitled to the
same. In view of the directions issued by the Joint Director of Higher
Education, the respondent no.4 had taken necessary steps. Since the
aforesaid amount had been rightly recovered by the respondent no.2, there
was no reason to interfere in writ jurisdiction.
6. We have heard the learned counsel for the parties and we have
perused the documents on record. It is not in dispute that on 16.10.2003 the
original petitioner acquired Ph. D. qualification after which two additional
increments were granted to her from 01.10.2003 and selection grade scale
was granted from 01.08.2007. The pay fixation was also duly approved.
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The original petitioner received the aforesaid benefits and retired on
superannuation on 30.06.2011. Subsequently, by virtue of increase in the
age of retirement to 62 years, she re-joined duty on 12.09.2012 and she was
to retire on 30.06.2013. However, prior thereto the original petitioner
expired on 20.06.2013. It is only thereafter that on 24.07.2013 the Joint
Director of Higher Education issued a communication to the Principal of the
College stating therein that the original petitioner would be entitled to senior
grade scale from 16.10.2007 and selection grade scale from 16.10.2012.
The Principal was directed to determine the over payment made and to
recover the same.
7. In this context, two aspects would have to be considered. Firstly,
whether there has been over payment to the original petitioner on account of
incorrectly granting her benefit of senior grade scale and selection grade
scale by virtue of acquiring the Ph.D. qualification. Secondly, if such over
payment has been found to be made, whether the excess amount is liable to
be recovered after the death of the original petitioner. Insofar as entitlement
to the benefit of senior grade scale and selection grade scale to the original
petitioner is concerned, it is clear that the entitlement to such benefit is
governed by the provisions of the Government Resolution dated 11.12.1999.
The minimum length of service for being eligible to receive senior grade
scale is four years after acquiring Ph. D. qualification and for being eligible to
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receive selection grade scale the minimum service as Lecturer (Senior Scale)
would be five years. On this basis, the original petitioner having acquired
Ph.D qualification on 16.10.2003 she would be entitled to senior grade scale
after four years which would be 16.10.2007. After serving on the post of
Lecturer (Senior Scale) for five years, she would be entitled to be placed in
selection grade on 16.10.2012. The aforesaid determination of entitlement
is as per the Government Resolution dated 11.12.1999. The Circular dated
18.10.2001 pertains to regularisation of services of those Lecturers who have
not acquired NET/SET qualifications having been appointed prior to
11.12.1999. We therefore find that though the original petitioner was
entitled to such benefit after period of four years and five years respectively
after acquiring the Ph. D. qualification, the same was granted to her
immediately after acquiring Ph. D. It is thus clear that there has, in fact,
been over payment to the original petitioner to the tune of Rs.5,56,477/-
since she was not entitled to receive higher pay scale prior to 16.10.2007
and 16.10.2012 respectively. No fault therefore can be found with the stand
taken by the respondent nos. 1 and 2 that there had in fact been over
payment to the original petitioner.
8. Having found that there had in fact been over payment of
Rs.5,56,477/- which amount has already been recovered, the question to be
considered is whether such recovery was justified in the facts of the case.
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It is not the case of the respondents that on account of any
misrepresentation or fraud practiced by the original petitioner, such over
payment on account of wrong fixation came to be made. It is further to be
noted that such over payment came to be made from 16.10.2003 and
continued till the time the original petitioner was in service till 20.06.2013
when she expired. In this regard, the Hon'ble Supreme Court in Syed Abdul
Qadir and others (supra) has observed in paragraphs 57, 58 and 59 as
under:
"57. This Court, in a catena of decisions, has granted
relief against recovery of excess payment of
emoluments/allowances if (a) the excess amount was
not paid on account of any misrepresentation or fraud
on the part of the employee and (b) if such excess
payment was made by the employer by applying a wrong
principle for calculating the pay/allowance or on the
basis of a particular interpretation of rule/order, which is
subsequently found to be erroneous.
58. The relief against recovery is granted by Courts
not because of any right in the employees, but in equity,
exercising judicial discretion to relieve the employees
from the hardship that will be caused if recovery is
ordered. But, if in a given case, it is proved that the
employee had knowledge that the payment received was
in excess of what was due or wrongly paid, or in cases
where the error is detected or corrected within a short
time of wrong payment, the matter being in the realm of
judicial discretion, Courts may, on the facts and
circumstances of any particular case, order for recovery
of the amount paid in excess. See Sahib Ram v. State of
Haryana, Shyam Babu Verma v. Union of India, Union of
India v. M. Bhaskar, V. Gangaram v. Director, Col. B. J.
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Akkara (Retd.) v. Govt. of India, Purshottam Lal Das v.
State of Bihar, Punjab National Bank v. Manjeet Singh
and Bihar SEB v. Bijay Bhadur.
59. Undoubtedly, the excess amount that has been paid
to the appellants teachers was not because of any
misrepresentation or fraud on their part and the
appellants also had no knowledge that the amount that
was being paid to them was more than what they were
entitled to. It would not be out of place to mention here
that the Finance Department had, in its counter-
affidavit, admitted that it was a bona fide mistake on
their part. The excess payment made was the result of
wrong interpretation of the Rule that was applicable to
them, for which the appellants cannot be held
responsible. Rather, the whole confusion was because of
inaction, negligence and carelessness of the officials
concerned of the Government of Bihar. Learned counsel
appearing on behalf of the appellants teachers submitted
that majority of the beneficiaries have either retired or
are on the verge of it. Keeping in view the peculiar facts
and circumstances of the case at hand and to avoid any
hardship to the appellant teachers, we are of the view
that no recovery of the amount that has been paid in
excess to the appellant teachers should be made."
The aforesaid decision has been subsequently followed in Thomas
Daniel vs. State of Kerala and others [AIR 2022 SC 2153]. In the said case,
recovery sought to be made after retirement and passage of ten years
therefrom was held to be unjustified.
9. We find in the facts of the present case that the law as laid down in
Syed Abdul Qadir and others (supra) would be attracted for the reason that
over payment was made on account of erroneous interpretation of the
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relevant Government Resolutions by the respondent nos. 1 and 2. At no
point of time was the original petitioner responsible for being granted such
benefit. This benefit was granted for a period of almost ten years till the
original petitioner was in service. After her death, by the communication
dated 24.07.2013 the over payment was sought to be recovered for the first
time. In these facts since the original petitioner expired on 20.06.2013 and
the recovery was made more than four years after her death in absence of
she being responsible for such over payment, we find that judicial discretion
deserves to be exercised in favour of the petitioner by holding that the
recovery undertaken was unjustified as the same results in hardship to the
legal heir of the original petitioner. We are therefore inclined to direct
refund of the excess amount that has been recovered by the respondent nos.
1 and 2.
10. Insofar as the prayer made for grant of arrears of salary from
01.07.2011 to 11.09.2012 is concerned, we are not inclined to grant that
relief for the reason that the original petitioner received pension for the
aforesaid period pursuant to her superannuation at the age of 60 years. The
original petitioner did not surrender the aforesaid amount of pension
received from 01.07.2011 to 11.09.2012. For that reason coupled with
principle of no work no pay, it is held that the original petitioner would not
be entitled to claim arrears of salary for the aforesaid period.
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11. Hence for the aforesaid reasons, it is directed that within a period
of eight weeks from today, the respondent nos. 1 and 2 shall refund the
amount of Rs.5,56,477/- to the present petitioner. If the said amount is not
refunded within the aforesaid period, the same shall carry interest @4% per
annum that would be payable from the expiry of eight weeks till releasation.
12. Rule is made partly allowed in aforesaid terms with no order as to
costs.
(MRS. VRUSHALI V. JOSHI, J.) (A.S.CHANDURKAR, J.)
Andurkar..
