Bombay High Court
Satish Vishwasrao Patil And Others vs The State Of Mahrashtra And Others on 8 May, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:9949-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11706 OF 2019
1. Satish s/o Vishwasrao Patil,
age 45 years, Occ. Service.
2. Samadhan s/o Bhilla Vyavahare,
age 37 years, Occ. Service.
3. Kamalabai d/o Ramdas Ahire,
age 48 years, Occ. Service.
4. Manukumar s/o Ashok Patil,
age 31 years, Occ. Service.
5. Wahid Ali s/o Hamid Ali Sayyed,
age 43 years, Occ. Service.
6. Shaikh Gulabnabi s/o Shaikh Gaffar Mansuri,
age 48 years, Occ. Service.
7. Gopal s/o Vasant Patil,
age 43 years, Occ. Service.
8. Sarika d/o Devidas Borse,
age 33 years, Occ. Service.
All R/o Late Anubai Magu Sonawane
Aided Tribal Primary Ashram School,
Navagaon Kukdel-Shahada, Tq. Shahada,
Dist. Nandurbar. Petitioner.
Versus
1. The State of Maharashtra,
(Through it's Secretary)
Tribal Development Department
Mantralaya, Mumbai - 32.
2. The Commissioner,
Tribal Development, Nashik.
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3. The Additional Commissioner,
Tribal Development, Nashik.
4. The Project Officer,
Integrated Tribal Development Project,
Nandurbar, District Nandurbar. Respondents.
...
Mr. V.A. Dhakne, Advocate for petitioner.
Mr. A.M. Phule, AGP for respondent nos.1 to 4.
...
CORAM : SMT. VIBHA KANKANWADI &
S. G. CHAPALGAONKAR, JJ.
Reserved on : 15th April, 2024
Decided on : 08th May, 2024
...
FINAL ORDER :- (Per S.G. Chapalgaonkar, J.)
1. The Petitioners are impugning the order dated
31.7.2017 passed by Respondent No.4- Project Officer,
Integrated Tribal Development Project, Nandurbar thereby
directing recovery of excess payment made towards one level
promotional pay scale from the petitioners by deducting the
amount from their monthly salaries in twelve equal
installments.
2. Mr. V.A. Dhakane, learned advocate appearing for
the petitioners submit that petitioners are the employees of
Late Anubai Magu Sonawane Aided Tribal Primary Ashram
School, Navagaon Kukdel-Shahada, District Nandurbar. The
school is run by Adivasi Pardhi Saanskrutik and Shaikshanik
Mandal, Shahada. The School receives grant-in-aid as Private
Tribal Ashram School. The petitioners have been appointed on
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their respective posts as Shikshan Sevak, Cook, Helper in group
"C" and "D" posts since 15.6.2007. Services of the petitioners
have been duly approved by the competent authorities of Tribal
Development Department.
3. The petitioners contend that the School is situated
at village Navagaon, within tribal area recognized under the
Government Resolution dated 9.3.1990. The Additional
concessional benefits were made available to its employees in
terms of the Government Resolution dated 6.8.2002.
Accordingly, one level promotional pay scale was extended to
petitioners no.1 and 2 from 15.6.2010 and petitioner nos.3 to
8 from 15.6.2007. However, due to insufficient number of the
students at village Navagaon, the school came to be transferred
at village Kukdel vide order dated 29.11.2012. Although, the
school was transferred to village Kukdel, petitioners were
continued with one level promotional pay scale benefit,
however, vide impugned order dated 28.2.2017 respondent
nos.1 to 4 stopped the additional benefits and directed
recovery of excess payment made to the petitioners on the
ground that place of transfer of the school does not fall within
the tribal area. Respondent No.4 further directed such
recovery in 12 equal installments from current salary of the
petitioners.
4. Mr. Dhakane, learned advocate for the petitioners
submits that it is not a case of fraud or misrepresentation on
the part of the petitioners. They continued their services in the
same school, which was initially run in the tribal area at village
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Navagaon. Lateron, under the Government orders that is
transferred to village Kukdel. Petitioners, who were extended
benefit of one month promotional pay scale as per their
eligibility for working in tribal area continued to receive the
same even after transfer. No fault can be found with the
petitioners. He would submit that excess payment made to
class-3 or class-4 employees cannot be subjected to recovery
after the period of 7 to 8 years; that causes great
inconvenience to them. Relying upon the law laid down by the
Supreme Court of India in case of State of Punjab and others
Vs. Rafiq Masih (White Washer) and others reported in (2015)
4 Supreme Court Cases 334 he would submit that action under
impugned order is unsustainable and liable to be quashed and
set aside.
5. Mr. A.M. Phule, learned AGP appearing for the
respondent nos. 1 to 4 supports the impugned order. He would
submit that the petitioners have received the promotional pay
scales applicable to the employees working in the tribal area.
However, on transfer of the school to non-tribal area, such
benefit was not admissible to them. Salary bills of the
petitioners were submitted by the school as per pay scale for
the tribal area although school ceased to exist in the tribal
area. Petitioners have knowingly received such benefit and
made unjust enrichment. The respondent no.4 has rightly
stopped benefit and directed recovery of excess payment made.
The petitioners cannot object the same.
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6. We have considered the submissions advanced by
the learned advocates appearing for the respective parties. We
have gone through the record tendered into service. It is not in
dispute that the petitioners are class-3 and Class-4 employees
working on Ashram School receiving 100% grant-in-aid. The
State Government has framed policy under Government
Resolution dated 6.8.2002 to grant promotional pay scales to
the employees serving in the tribal area. Village Navagaon is
recognized as Tribal Area as per the Government Resolution
dated 9.3.1990. Petitioners were appointed while the School
was operational at village Navagaon i.e. Tribal area. In
pursuance of the Government Policy under Resolution of 2002,
petitioners were bestowed with benefit of promotional pay
scale. Admittedly, the school was transferred to non-tribal area
under Governments order since 29.11.2012. However,
petitioners were paid salary at the same scale that they were
drawing while working in the tribal area till the impugned
order came to be passed on 28.2.2017. Respondent no.4 not
only stopped the promotional pay scale, but also directed
recovery of excess payment made from 2012 onwards from the
petitioners salary.
7. The Supreme Court of India in case of State of
Punjab and others Vs. Rafiq Masih (White Washer) (supra)
considered the similar situation and laid down broader
principles as regards to recovery of excess payment made to
the employees. Paragraph no.18 of the said judgment states as
under :-
18. It is not possible to postulate all situations of
hardship, which would govern employees on the
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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, summarize 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. Mr. Phule, learned AGP submits that the Supreme
Court has further elaborated the scope of application of
aforesaid principles in case of High Court of Punjab and
Haryana and others Vs. Jagdev Singh reported in 2016 (14)
SCC 267 and observed that the principles enunciated in case of
State of Punjab and others Vs. Rafiq Masih (White Washer)
would not be applicable when the officer has given an
undertaking while opting for revised pay scale. He would
submit that the petitioners themselves have given undertaking
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in the month of December 2021 and admitted that their
entitlement to promotional pay scale was only during the
service at tribal area. Therefore, he urged to follow the course
as laid down in case of High Court of Punjab and Haryana and
others Vs. Jagdev Singh (supra). We are afraid to accept the
aforesaid contentions. It appears that the petitioners are made
to submit undertaking in the year 2021 during pendency of
this writ petition, whereas, under the impugned order, recovery
is sought to be made for the period from 2012 to 2017. In
view of this factual backdrop, when petitioners had no
occasion to submit any undertaking while receiving salary, the
law espoused in case of High Court of Punjab and Haryana and
others Vs. Jagdev Singh would have no application in the facts
of the present case. The case of the petitioners would be
governed by clause (i) of paragraph no.18 in case of Rafiq
Masih (White Washer) (supra). Resultantly, we proceed to
pass the following order.
ORDER
i. Writ Petition is partly allowed.
ii. The impugned order dated 31.7.2017 issued
by the Project Officer, Integrated Tribal
Development Project, Nandurbar is hereby
quashed and set aside to the extent of
directions for recovery of the excess payment
made towards one level promotional pay scale
from petitioners monthly salaries.
iii. We declare and hold that excess amount made
towards one level promotional pay scale till
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the impugned order dated 31.7.2017 shall not
be recoverable from the petitioners and, if any
recovery is made in pursuance of the
impugned order, the same shall be revered to
the petitioners.
iv. Writ Petition stands disposed off in aforesaid
terms. No costs.
( S. G. CHAPALGAONKAR, J. ) ( SMT. VIBHA KANKANWADI, J. )
...
AAA/- (f)
