Dada Ananda Nalge vs Zilla Parishad Ahmednagar Through ...
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Bombay High Court

Dada Ananda Nalge vs Zilla Parishad Ahmednagar Through ... on 4 February, 2025

2025:BHC-AUG:3073-DB


                                                                          922-wp-11739-2008



                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD

                             WRIT PETITION NO. 11739 OF 2018

                   Shri Dada Ananda Nalge
                   Age : 68 years, Occu. : Retired,
                   R/o Deulgaon, Taluka Shrigonda,
                   District Ahmednagar                              ...Petitioner

                              Versus
                   Zilla Parishad, Ahmednagar
                   Ahmednagar
                   Through its Chief Executive Officer              ...Respondent

            Shri Parag V. Barde, Advocate for the Petitioner
            Shri S. T. Shelke, Advocate for the Respondent/State



                               CORAM            :      S. G. MEHARE AND
                                                       SHAILESH P. BRAHME, JJ.

                            RESERVED ON         :      31st JANUARY, 2025

                           PRONOUNCED ON        :        4th FEBRUARY, 2025


            J U D G M E N T [Per Shailesh P. Brahme, J.] :-

1. Rule. Rule is made returnable forthwith. Heard both sides

finally.

2. By way of this petition filed under Article 226 and 227 of the

Constitution of India, petitioner is seeking quashment of order dated

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16.07.2018 issued by respondent/Zilla Parishad reducing his pension

and order dated 07.09.2018 directing recovery of excess payment

made to the petitioner. By earlier interim order the recovery of excess

payment was stayed. The stay is still in operation.

3. Petitioner was appointed as Mistri Grade-II with the

respondent/Zilla Parishad and he become permanent from 01.04.1987.

He was promoted to the post of Civil Engineering Assistant. There was

amalgamation of various cadres merging in Civil Engineering Assistant.

He was superannuated on 30.09.2008. His pension was fixed on or

about 03.12.2008. Thereafter, it was revised vide order dated

21.02.2011 to the tune of Rs. 7225/- per month. His claim was that it

should have been fixed at Rs. 9015/- per month.

4. Being aggrieved, petitioner had approached High Court by filing

Writ Petition No. 7776 of 2012. Division Bench partly allowed the

petition vide order dated 11.12.2014, directing the respondent to

reconsider claim of the petitioner and to revise the pension. As there

was non-compliance, Contempt Petition No. 376 of 2015 was filed by

the petitioner. By placing on record order dated 17.04.2018, Contempt

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Petition was disposed of. To utter surprise of the petitioner, revised

pension order was issued on 16.07.2018, fixing the pension to the

tune of Rs. 5990/- per month. By further communication dated

07.09.2018, a recovery of excess payment was also directed.

5. Learned counsel for the petitioner submits that petitioner is

entitled to revised pension for Rs. 9015/- per month, considering his

last drawn salary. He would submit that it is perverse to reduce the

pension to Rs. 5990/- per month. This action is against law laid down

in the matter of Smt. Savitribai Narsayya Gudappa Vs. State of

Maharashtra reported in 2014(6) ALL MR 175. It is submitted that

circular dated 28.07.2014 should not have been applied to the

petitioner, as he superannuated on 30.09.2008. The cut-off date

27.02.2009, prescribed by Government Resolution dated 30.10.2009,

was not made applicable to those who retired between January 2006

to 26th February, 2009. The decision of Savitribai Narsayya Gudappa

(supra) was upheld by Supreme Court.

6. Learned counsel for the petitioner relied on the following

judgments :

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1. Vasant Arjun Patil and Others Vs. The State of Maharashtra reported in Writ Petition No. 10156/2012.

2. Prakash Ratan Mali Vs. The State of Maharashtra and Others reported in Writ Petition No.9144/2016.

3. Pandurang Kisan Wadnere and Others Vs. The State of Maharashtra and Others reported in Writ Petition No. 2017 DGLS (Bom.) 992.

4. Nandkumar s/o. Bhagwanappa Mandge and Others Vs. The State of Maharashtra and Others reported in Writ Petition No. 9279/2016.

7. Learned counsel Mr. Shivaji T. Shelke for the respondent

opposes the submissions of the petitioner. He is relying on affidavit-in-

reply filed on two different occasions. It is contended that petitioner

was awarded benefit of time bound promotion/Assure Career

Progressive Scheme vide order dated 24.03.2003 granting payscale of

Rs. 4000-100-6000. The second benefit was to accrue after twelve

years from 01.04.1999. But, the petitioner was superannuated on

30.09.2008 and second benefit was not admissible. When he retired,

he was in pay scale of 5200-20200. At that time his basic pay was Rs.

11980/- per month. Hence, he was eligible for pension of Rs. 5990/-.

It is further submitted that his pension was wrongly fixed at Rs.

7225/- per month vide order dated 21.02.2011. The mistake has been

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rectified and the impugned orders are passed. It is submitted that

revision of the pension is in accordance with law and the petitioner is

being excess paid Rs. 3,62,901/-. Our attention is adverted to the

undertaking given by the petitioner on 01.09.2009 that he would

refund the amount found excess due to wrong pay fixation.

8. Reliance is placed on judgment of Chandi Prasad reported in

State of Uttarakhand reported in 2012(6) Mh.L.J.

9. The petitioner was in the cadre of Mistri Grade-II. Few such a

cadres were amalgamated into cadre of Civil Engineering Assistant

vide Government Resolution dated 20.05.1999. The petitioner was

placed in pay scale of 4000-100-6000 which was the next higher pay

scale. Order dated 24.03.2002 issued by the respondent placing the

petitioner in the said pay scale shows that after completion of twelve

years from his initial date of service i.e. 01.04.1987, higher pay scale

was conferred. It is not possible to accept the submission of the

petitioner that besides placing the petitioner under the higher scale

independently he was entitled to receive first benefit of Assure Career

Progressive Scheme from initial date of appointment.

5 of 8 922-wp-11739-2008

10. As per the judgment in the matter of Savitribai Narsaiyya

Gudappa (supra), the benefit of revision of pension was given to the

petitioner. It is not that due to Government Resolution dated

30.10.2009 he was deprived of the benefits due to the retirement

between 01.01.2006 to 26.02.2009. The revision done by order dated

21.02.2011, was not correct. The said mistake is rectified by the

respondent by passing impugned orders. We do not find that there is

any arbitrariness or illegality in the revision done by the respondent.

Petitioner had given undertaking on 01.09.2009, assuring refund of

excess amount. By the impugned orders, petitioner is shown to have

been paid excess amount of Rs. 03,62,901/-. In view of the

undertaking, the respondent is entitled to recover the amount.

11. Petitioner has placed reliance on judgment of Vasant Arjun Patil

(supra). It was a case of recovery of excess amount. It is

distinguishable on facts. It is not applicable to the present case.

Further, reliance is placed on the judgment of Prakash Ratan Mali

(supra). By the impugned notice, pay scale was revised as per circular

dated 28.07.2014. The recovery was sought against the then petitioner.

6 of 8 922-wp-11739-2008

We do not find any similarity in the circumstances. Hence, the

judgment is of no avail to the petitioner.

12. Petitioner is also relying on the judgment of Pandurang Kisan

Wadnere (supra). In that case, the petitioner's service as a Mistri

Grade-II was not considered while granting time-bound promotion

scale. Such is not the case in the present matter. The petitioner was

actually given the benefit of his earlier services rendered from 1987.

Hence, this judgment is also not applicable to the case.

13. Respondent places reliance on the judgment of Chandi Prasad

(supra). In view of the ratio laid down in paragraph Nos. 16 to 18, if

the excess payment is made to the petitioner due to wrong fixation of

pension, it is liable to be recovered. It is not a case of extreme

hardship in the present matter. Beside that the petitioner had

furnished undertaking for refund of the excess payment. Similar is the

situation in the judgment in the matter of High Court of Panjab and

Haryana Vs. Jagdev Singh reported in AIR 2016 SC 3523. Due to the

undertaking the officer in that case was held liable for refund.

7 of 8 922-wp-11739-2008

14. We find no substance in the petition. The same is dismissed.

Rule is discharged. There shall be no order as to costs.

[ SHAILESH P. BRAHME ]                       [ S. G. MEHARE ]
         JUDGE                                     JUDGE

15. After pronouncement of the judgment, the learned counsel for

the petitioner prays that the stay which was operating to the recovery

of excess amount shall be continued for a period of four (04) weeks

from today so as to enable the petitioner to approach the higher

Court. Learned counsel Mr. Wagh, holding for Mr. S. T. Shelke,

learned counsel for the respondent opposes the prayer.

16. Considering the fact that stay is operating to the recovery of

excess payment since 07.09.2018, we deem it appropriate to extend

the stay for further period of four (04) weeks from today. It is made

clear that after expiry of period of four (04) weeks, interim stay shall

stand vacated automatically.

[ SHAILESH P. BRAHME ]                       [ S. G. MEHARE ]
         JUDGE                                     JUDGE

Komal Kamble/


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