Bombay High Court
Kalpana Hanumant Pawar vs The State Of Maharashtra Thr The ... on 23 February, 2023
Bench: Sandeep V. Marne
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BASAVRAJ Pdp
GURAPPA IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PATIL CIVIL APPELLATE JURISDICTION
Digitally signed by
BASAVRAJ WRIT PETITION NO. 2068 OF 2023
GURAPPA PATIL
Date: 2023.02.24
20:26:21 +0530 Pushpa Shyam Patil ..... Petitioner
Vs.
The State of Maharashtra and Ors. ..... Respondents
WITH
WRIT PETITION NO. 2069 OF 2023
Kalpana Hanumant Pawar ..... Petitioner
Vs.
The State of Maharashtra and Ors. ..... Respondents
WITH
WRIT PETITION NO. 2070 OF 2023
Suresh Hira Chavan and Anr. ..... Petitioners
Vs.
The State of Maharashtra and Ors. ..... Respondents
Mr. Balaji Shinde for petitioners.
Mr. P. P. Kakade, Govt. Pleader a/w Mr. R. P. Kadam, AGP for State.
CORAM: S. V. GANGAPURWALA, ACJ &
SANDEEP V. MARNE, J.
DATED : FEBRUARY 23, 2023
P.C.
1. Rule. Rule made returnable forthwith. With the consent of
parties, taken up for final hearing at admission stage.
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2. The petitioners have retired as Special Instructors from the
institutions run by respondent nos.3 and 4.
3. The recovery is claimed on the ground that erroneous pay
fixation. The learned counsel for the petitioners submits that the
benefit of one step promotional pay-scale for working in tribal area
was extended to the petitioners in the year 2006. However, because
of the subsequent notification of the year 2008, it was clarified that
the persons who are working in a non-tribal post would not be
entitled to said benefit. The petitioners were granted the benefit
earlier to the said notification. The learned counsel further submits
that after retirement the recovery is being claimed by the
respondents. The same would not be permitted. The petitioners are
retired as Class III employees.
4. Reliance is placed on the decision of the Apex Court in the case
of State of Punjab & Ors. vs. Rafiq Masih (White Washer) & Ors.,
reported in (2015) 4 SCC 334. The petitioners also rely upon the
order passed by this Court in the case of similarly situated
employees.
5. We have heard the learned AGP for the respondents.
6. The learned AGP submits that as the benefits were granted to
the petitioners on the erroneous pay fixation, the recovery is rightly
claimed by the respondents.
7. It is not disputed that in all these matters some of the
petitioners have retired and some of the petitioners are on the verge
of retirement. It is also not disputed that recovery claimed is beyond
five years. The Apex Court, in a case of Rafiq Masih (supra) in
paragraph no.12, has observed 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
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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. The case of the present petitioners would be squarely covered
by the judgment in the case of Rafiq Masih (Supra). Some of the
petitioners have retired and some are on the verge of retirement.
The recovery also is for a period beyond 5 years, as such the present
case is covered by eventualities as laid down in paragraph nos.
12(ii) and (iii) of the judgment of Apex Court in the case of Rafiq
Masih (Supra).
9. In the light of the above, the writ petitions are allowed. The
impugned orders claiming recovery against the petitioners are
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quashed and set aside. In case the respondents, pursuant to the said
orders of recovery, have recovered some amount from the
petitioners, then the respondents shall refund the said amount to
the petitioners expeditiously and preferably within a period of six
(06) months.
10. It is made clear that we have set aside the recovery and
directed refund of recovered amount. However, the order of the
respondents that the petitioners shall not be entitled to one step pay
scales is upheld and the pension proposals of the petitioners, those
who have retired, shall be processed considering that the petitioners
are not entitled to one step pay scales.
11. Rule is accordingly made absolute accordingly. No costs.
(SANDEEP V. MARNE, J) (ACTING CHIEF JUSTICE)
