Bombay High Court
Uttamrao S/O Prabhakar Jadhav And ... vs State Of Maharashtra Thr Its Secretary ... on 23 January, 2024
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2023:BHC-NAG:17704-DB
WP 2653-10 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2653/2010
1. Uttamrao s/o Prabhakar Jadhav, Aged 50 years,
Occupation-Service (Clerk), Shri Shivaji Jr. College,
Savna, Tq. Mahagaon, District Yavatmal.
2. Kisan s/o Bhavru Dhangar, Aged 52 years, Occu.:
Service (Helper), Shri Tajmal Gandhi Jr. College,
Brahmangaon, Tq. Umarkhed, District Yavatmal.
3. Prakash s/o Maroti Thakre, Aged 46 years, Occ. :
Service (Helper), Shri Shivaji Higher Secondary
School, Savna, Tq. Mahagaon, District Yavatmal.
4. Chandrakant s/o Prabhakar Kulkarni, Aged 52 years,
Occ. Service(Assistant), Saraswati Jr. College,
Paras, Tq. Balapur, District Akola.
5. Asadkhan s/o Hamjakhan, Aged 52 years,
Occu. : Service (Clerk), Fulsing Naik College,
Pusad, District Yavatmal.
6. Vilas s/o Dadarao Bonde, Aged 53 years,
Occu. Service (Laboratory Attendant), Shri Shivaji
Bahu-uddeshiya Higher Secondary School and
Jr. College, Shivaji Nagar, Amravati-444 603.
7. Shaligram s/o Mahadevrao Parde, Aged 56 years,
Occu. Service(Laboratory Attendant), Shri Shivaji
Bahu-uddeshiya Higher Secondary School and Jr.
College, Shivaji Nagar, Amravati. PETITIONERS
.....VERSUS.....
1. State of Maharashtra, through its
a. Secretary, General Administration Department,
Mantralaya, Mumbai-32.
b. Secretary, Secondary and Higher Secondary
Education, Mantralaya, Mumbai-32.
c. Secretary, Technical Education, Mantralaya,
Mumbai-32.
2. Director of Technical Education, Maharashtra State,
3, Mahapalika Marg, Post Bag No. 1967,
Mumbai-400 001.
3. Deputy Director of Technical Education and
Training, Amravati Region, Amravati.
4. Accounts Officer, Technical Education & Training,
Amravati Region, Amravati.
5. District Technical Officer, Akola, Tah. And
District Akola.
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6. District Technical Officer, Yavatmal,
Tah. and District Yavatmal.
7. District Technical Officer, Amravati,
Tah. and District Amravati. RESPONDENTS
Shri R.L. Khapre, Senior Advocate with Shri R.G. Kavimandan, counsel for
the petitioners.
Shri H.D. Marathe, Assistant Government Pleader for the respondents.
CORAM : NITIN W. SAMBRE AND ABHAY J. MANTRI, JJ.
DATE : JANUARY 23, 2024
ORAL JUDGMENT (PER : NITIN W. SAMBRE, J.)
On December 08, 2010, this Court had granted RULE and
interim relief in terms of Prayer Clause (iii) subject to each of the
petitioners executing an undertaking to the effect that in the event the
petition is dismissed, they shall have no objection to deduct the amount
recoverable from their retiral benefits.
2. All the petitioners were working as non-teaching employees
in different grant-in-aid schools. By the instant writ petition, the
petitioners have prayed for quashing and setting aside of (a) Condition
No.1 in Government Resolution dated July 12, 2004 by declaring that the
scheme of time-bound promotion for all employees in private schools
including the employees in the vocational courses is applicable with effect
from October 01, 1994; (b) the order dated October 03, 2009 issued by
the Respondent no.3-Deputy Director of Vocational Education and
Regional Training, Amravati Region, Amravati; (c) the audit objection
dated October 31, 2009 raised by the respondent no.4-Accounts Officer,
Amravati in respect of the petitioners; and (d) the order of recovery like
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the one dated November 27, 2009 passed by the respondent nos.5, 6
and 7. The petitioners have also prayed for issuance of a direction to the
respondents to fix the pay-scale of the petitioners as per the
recommendations of the Sixth Pay Commission by treating that they are
properly given the benefit of time-bound promotion scheme in pursuance
of the Government Resolution dated April 30, 1998 and July 23, 1998
and also by treating the pay-fixation of the petitioners made as per the
recommendations of the Fifth Pay Commission as just and proper.
3. After the respondent no.1 started vocational education stream
viz. Bifocal Courses which were identified as Minimum Competency
Vocational Education as is reflected in the Government Resolution dated
February 01, 1980 and the clarificatory Government Resolution dated
February 20, 1980. Since the admissions to these courses were at +2
Level, the said vocational institutions were covered by the definition of
'School' as provided under the Secondary School Code. As such, the
service conditions of the petitioners are governed by the provisions of the
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977. So as to work on the issue of stagnation in service
in relation to all such employees who do not have any promotional
avenues inspite of having put twelve years of approved service, the
scheme for grant of Time-Bound Promotion i.e. for conferring the next
higher pay-scale was brought into effect.
WP 2653-10 4 Judgment
4. In the aforesaid background, in view of the existing policy, the
petitioners were given the Time-Bound Promotion having regard to their
date of entry in service pursuant to the scheme as on October 01, 1994.
It is claimed by the petitioners that while extending such benefit, support
was drawn by the respondent-Authorities from the Government
Resolutions dated April 30, 1998 and July 23, 1998. Accordingly, the pay-
scale of the petitioners was fixed as per the Fifth Pay Commission with
effect from January 01, 1996 having regard to the benefit to be extended
of Time-Bound Promotion. According to the petitioners, the respondent
no.3-Deputy Director of Technical Education vide order dated October
03, 2009 directed the respective Accounts Officers of the district in the
Region to effect recovery of the additional payments made to the
petitioners from June 01, 1994 to June 01, 2004 based on which the
Accounts Department raised an objection as to the pay-scale of the
petitioners. As a sequel of aforesaid objection, on November 23, 2009
recovery was ordered from the petitioners, which has prompted them to
prefer this writ petition.
5. Our attention is invited by the learned counsel for the
petitioners to the fact that all the petitioners have superannuated, but for
the petitioner no.7. In view of the order passed by this Court, the
recovery is informed to have been not effected. The learned counsel for
the petitioners would urge that the benefit of the next higher pay-scale is
WP 2653-10 5 Judgment
rightly extended in favour of the petitioners so as to overcome the issue
of stagnation. As such, he would claim that the benefit extended was as
per the policy that was existing and that being so, the respondent-
Authorities have erred in ordering recovery against the petitioners which
runs contrary to the scheme reflected in the Government Resolutions
dated April 30, 1988 and July 12, 2004. He would further claim that the
excess amount, if any, paid to the petitioners was not on account of any
misrepresentation or fraud on the part of the petitioners. According to
him, if the excess payment was made by the employer i.e. respondent-
Authorities herein by applying wrong principle for calculation, such
amount post superannuation cannot be recovered. As such, the act on
the part of the respondent-Authorities not only causes financial hardship
to the petitioners but also they would be put to financial stress having
already utilized the amount received by them.
6. For substantiating the aforesaid submission, the learned
counsel for the petitioners has drawn support from the judgments of the
Apex Court in Syed Abdul Qadir & Others Versus State of Bihar &
Others [2009 AIR SCW 1871] and State of Punjab & Others Versus Rafiq
Masih (White Washer) etc. [AIR 2015 SC 696].
7. While countering the aforesaid submissions, the learned
Assistant Government Pleader would strenuously urge that the plain
reading of the above said resolutions would reflect that the petitioners
WP 2653-10 6 Judgment
were not entitled for the benefit, for the educational institutions in which
they were serving were conducting vocational courses which were not
covered by those resolutions. According to him, the Government
Resolution dated June 08, 1995 is for granting Time-Bound Promotion
after twelve years of service by non-teaching employees which is
restricted only to the State Government and not to the educational
institutions where the petitioners were serving. He would further claim
that the benefit of the Government Resolution dated October 08, 1997
also cannot be extended to the petitioners as it is the University and
Affiliated Colleges and the Degree and Diploma Level Colleges which are
conducted under the aegis of Higher and Technical Education can draw
benefit therein. According to him, the Government Resolution dated
April 30, 1998 was specifically for the non-teaching employees of the
private schools. In this background, he would urge that the benefits
under the Government Resolutions dated June 08, 1995, October 08,
1997 and April 30, 1998 cannot be extended to the petitioners who were
non-teaching employees and discharged duties in Minimum Competency
Vocational Courses. He would add that the services of the petitioners
were controlled by the State Government through the Directorate of
Vocational Education and Training and that being so, the benefit under
the aforesaid Government Resolutions cannot be said to have been
extended to the petitioners.
WP 2653-10 7 Judgment
8. In the aforesaid background, he would urge that the
petitioners were knowing about the non-applicability of the scheme to
the vocational courses, still the petitioners have chosen to draw the
benefit and as such, the impugned decision of effecting recovery from the
petitioners is quite justified.
9. We have appreciated the aforesaid submissions.
10. It is not in dispute that all the petitioners have stood
superannuated while working in Class-III and Class-IV cadres such as
Assistant, Clerk, Laboratory Attendant, Helper, etc. The non-applicability
of the Government Resolutions and the benefit thereunder to the
petitioners is not for the reason that the petitioners have misrepresented
or practised any fraud on the State Government for drawing the benefits,
at least such is not the case of the respondent-Authorities. If we carefully
consider the law laid down by the Apex Court in Syed Abdul Qadir
(supra), it is worth to reproduce what the Apex Court has observed in
paragraphs 27 and 28:-
27. 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. The relief against recovery is granted by courts
not because of any right in the employees, but in equity,
WP 2653-10 8 Judgment
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 vs.
State of Haryana, 1995 Supp(1) SCC 18; Shyam Babu Verma
vs. Union of India, [1994] 2 SCC 521]; Union of India vs. M.
Bhaskar, [1996] 4 SCC 416; V.Ganga Ram vs. Regional Jt.,
Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] vs.
Government of India & Others (2006) 11 SCC 709;
Purshottam Lal Das & Others vs. State of Bihar, [2006] 11
SCC 492; Punjab National Bank & Others vs. Manjeet Singh
and Another, [2006] 8 SCC 647; and Bihar State Electricity
Board & Another vs. Bijay Bahadur & Another [2000] 10 SCC
99. 1995 AIR SCW 1780, 1997 AIR SCW 2754, 2006 AIR
SCW 5252, 2006 AIR SCW 5325, 2006 AIR SCW 6035.
28. 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 appellants-teachers, we are of the view that no
recovery of the amount that has been paid in excess to the
appellants-teachers should be made."
WP 2653-10 9 Judgment
11. The observations of the Apex Court in paragraphs 7, 9 and 10
of the judgment in Rafiq Masih (supra) are also worth mentioning which
read as under :-
"7. Having examined a number of judgments
rendered by this Court, we are of the view, that orders
passed by the employer seeking recovery of monetary
benefits wrongly extended to employees, can only be
interfered with, in cases where such recovery would result in
a hardship of a nature, which would far outweigh, the
equitable balance of the employer's right to recover. In other
words, interference would be called for, only in such cases
where, it would be iniquitous to recover the payment made.
In order to ascertain the parameters of the above
consideration, and the test to be applied, reference needs to
be made to situations when this Court exempted employees
from such recovery, even in exercise of its jurisdiction under
Article 142 of the Constitution of India. Repeated exercise of
such power, "for doing complete justice in any cause" would
establish that the recovery being effected was iniquitous, and
therefore, arbitrary. And accordingly, the interference at the
hands of this Court.
8. ..........
9. The doctrine of equality is a dynamic and
evolving concept having many dimensions. The
embodiment of the doctrine of equality, can be found in
Articles 14 to 18, contained in Part III of the Constitution of
India, dealing with "Fundamental Rights". These Articles of
the Constitution, besides assuring equality before the law and
equal protection of the laws; also disallow, discrimination
with the object of achieving equality, in matters of
employment; abolish untouchability, to upgrade the social
status of an ostracized section of the society; and extinguish
titles, to scale down the status of a section of the society,
with such appellations. The embodiment of the doctrine of
equality, can also be found in Articles 38, 39, 39A, 43
and 46 contained in Part IV of the Constitution of India,
dealing with the "Directive Principles of State Policy". These
WP 2653-10 10 Judgment
Articles of the Constitution of India contain a mandate to the
State requiring it to assure a social order providing justice -
social, economic and political, by inter alia minimizing
monetary inequalities, and by securing the right to adequate
means of livelihood, and by providing for adequate wages so
as to ensure, an appropriate standard of life, and by
promoting economic interests of the weaker sections.
10. In view of the aforestated constitutional
mandate, equity and good conscience, in the matter of
livelihood of the people of this country, has to be the basis of
all governmental actions. An action of the State, ordering a
recovery from an employee, would be in order, so long as it
is not rendered iniquitous to the extent that the action of
recovery would be more unfair, more wrongful, more
improper, and more unwarranted, than the corresponding
right of the employer, to recover the amount. Or in other
words, till such time as the recovery would have a harsh and
arbitrary effect on the employee, it would be permissible in
law. Orders passed in given situations repeatedly, even in
exercise of the power vested in this Court under Article 142
of the Constitution of India, will disclose the parameters of
the realm of an action of recovery (of an excess amount paid
to an employee) which would breach the obligations of the
State, to citizens of this country, and render the action
arbitrary, and therefore, violative of the mandate contained
in Article 14 of the Constitution of India."
12. As such, if we appreciate the case of the petitioners in the
backdrop of the law laid down by the Apex Court as referred
hereinabove, it cannot be inferred that at any time during the services
rendered by the petitioners they have misrepresented or practised fraud
in the capacity of employees for drawing excess payment. We have
reason to believe from the record that it is the employer who applied
wrong principle for calculating pay and allowances.
WP 2653-10 11 Judgment
13. The petitioners having already superannuated would be
facing great hardship in case if we permit the respondents to cause
recovery from their pension amount as not only the petitioners would be
financially stressed but also the petitioners would be suffering financial
hardship. As such, it would be iniquitous (unfair) to recover the amount
which is voluntarily released by the respondent-Authorities in favour of
the petitioners.
14. That being so, we deem it appropriate to pass the following
order :-
I. The order dated October 03, 2009 passed by the respondent
no.3-Deputy Director of Technical Education and Training,
Amravati Region, Amravati and the Audit Objection dated
October 31, 2009 raised by the Accounts Officer, Vocational
Education and Training, Regional Office, Amravati are
quashed and set aside.
II. The respondents are hereby restrained from causing any
recovery against the petitioners as has been mentioned in the
orders impugned.
III. We further direct that the recovery, if any, effected from the
petitioners, particularly the petitioner no.7 be undone by
repaying the said amount.
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15. The writ petition is allowed in aforesaid terms. Rule
accordingly. No costs.
(ABHAY J. MANTRI, J.) (NITIN W. SAMBRE, J.)
APTE
Signed by: Apte
Designation: PS To Honourable Judge
Date: 05/02/2024 17:22:53
