Bombay High Court
Arif Ahmed Khaliluddin Shaikh vs The State Of Maharashtra (Thr The Sec. ... on 13 June, 2025
Author: M. S. Karnik
Bench: M. S. Karnik, N. R. Borkar
2025:BHC-AS:23865-DB
901.wp.6451-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6451 OF 2025
Arif Ahmed Khaliluddin Shaikh ..Petitioner
vs.
The State of Maharashtra and ors. ..Respondents
------------
Mr. Laxman Shivajirao Deshmukh, for the Petitioner.
Ms. Rupali Shinde, AGP, for Respondent Nos.1 to 4-State.
------------
CORAM : M. S. KARNIK &
N. R. BORKAR, JJ.
DATE : 13th JUNE, 2025
ORAL JUDGMENT (Per M. S. Karnik, J.) :
1. Heard learned counsel for the Petitioner and
learned AGP for the Respondents.
2. The challenge in this Petition is to the judgment and
order dated 19th March 2025 passed by the Maharashtra
Administrative Tribunal ("the Tribunal" for short) in Original
Application No.953 of 2022.
3. The Petitioner approached the Tribunal seeking
direction to the State Government to withdraw the order
dated 26th August 2022 and permanently restrain them
901.wp.6451-2025.doc
from making any recovery from the Petitioner. The Tribunal
by the impugned judgment and order dismissed the original
application.
4. The facts of the case in brief are as under :-
The Petitioner was appointed as a Constable on 19 th
March 2000. Rule 3 of the Maharashtra Government
Servants (Other Than Judicial Department Servants)
Marathi Language Examination Rules, 1987 ("the said Rules
of 1987" for short) stipulates that the Government servant
shall pass Lower Standard and Higher Standard
examination before expiry of two years after his
appointment. However, the Petitioner did not pass within
the stipulated period.
5. The Petitioner passed the Lower Standard Language
Examination on 16th July 2017 and the Higher Standard
Examination on 8th January 2018. Rule 5 of the said Rules of
1987 provides the consequence of failure to pass such
examination within stipulated period i.e. withholding of
increments until the concerned Government servant passes
the said examinations. The Petitioner was however granted
901.wp.6451-2025.doc
the increments which the State Government should have
withheld as a result of the Petitioner's not having passed
the examinations.
6. The Respondent No.4 vide a communication dated
26th August 2022 initiated the recovery of Rs.9,29,789/-
against the Petitioner on the ground that the excess amount
has been paid to the Petitioner to which he was not entitled.
7. The Petitioner approached the Tribunal. The
Tribunal dismissed the original application holding that the
principles enunciated in State of Punjab and others vs.
Rafiq Masih (White Washer) and others 1 do not apply
to the Petitioner's case.
8. Assailing the order passed by the Tribunal learned
counsel for the Petitioner submitted that though the
Petitioner did not pass the said examinations within the
stipulated period of two years, no action was taken by the
authority as contemplated under Rule 5 of the said Rules of
1987 till 2022. The Respondent authority granted yearly
increments to the Petitioner and the salary was accordingly
1 (2015) 4 SCC 334
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paid. It is submitted that the Petitioner had not made any
misrepresentation or committed any fraud. In such
circumstances it is submitted that the Tribunal was not
justified in dismissing the original application.
9. Learned AGP on the other hand vehemently
opposed the Petition. Learned AGP placed heavy reliance on
the affidavit-in-reply filed before the Tribunal and invited
our attention to the findings of the Tribunal in support of her
submissions. Supporting the findings recorded by the
Tribunal it is submitted that the Tribunal has correctly
distinguished the decision in State of Punjab and others vs.
Rafiq Masih (White Washer) and others (supra) and by
relying upon the decision of this Court in Kiran Kirit
Solanki vs. State of Maharashtra and others2 held that
the Petitioner is not entitled to any relief. It is submitted
that the Respondent authority is justified in recovering the
excess amount paid.
10. In State of Punjab and others vs. Rafiq Masih
(White Washer) and others (supra) the circumstances under
which the State Government would not be justified in
2 Writ Petition No.7929 of 2019 dated 19.07.2019
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recovering the amount have been spelt out. The same reads
thus :-
"(i) Recovery from the employees belonging to
Class III and Class IV service (or Group C and Group D
service).
(ii) Recovery from retired employees, or the
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."
11. Admittedly, the Petitioner failed to pass the Marathi
Language Examination within the time stipulated by Rule 3
of the said Rules of 1987. As a consequence thereof the
Petitioner's increments were liable to be withheld however,
the same were released. It is not the case of the
Respondents that the Petitioner had made a representation
that he should be granted the yearly increments. It is
further not a case that there was any material suppression
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on the part of the Petitioner. This is a case where the
increments were inadvertently released by the Respondents
to the Petitioner though he did not pass the Marathi
Language Examination. The fact however remains that at a
later stage the Petitioner did pass the examination. The
Petitioner passed the Higher Standard Examination in 2018.
The Petitioner is a Class III employee working with the
State Government. There is absolutely no fault on the part
of the Petitioner while accepting the said excess amount.
There is nothing to indicate that the Petitioner was aware
that he was paid the excess amount to which he is not
entitled. Further, this is not a case that the Petitioner had
filed any undertaking while receiving the salary that he
would have to refund any amount if it is found to be paid in
excess. In our opinion, it would be unjust, arbitrary and
harsh if the excess amount of Rs.9,29,789/- is recovered
from the Petitioner in the manner that is sought to be done
at this stage at such a late juncture.
12. We have perused the order of the Tribunal. The
Tribunal has while relying on the decision in Kiran Kirit
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Solanki (supra) concluded that the benefits of ratio laid
down in the case of State of Punjab and others vs. Rafiq
Masih (White Washer) and others (supra) could not be
extended to the Petitioner. The Tribunal also noted in
paragraph 12 that there were divergent views of two
Coordinate Benches of the Bombay High Court and
preferred to follow the decision in Kiran Kirit Solanki
(supra).
13. In our opinion, the action on the part of the
Respondents to recover the excess amount would be harsh
and iniquitous to such an extent, that it would far outweigh
the equitable balance of employees right to recover. The
recovery is highly belated. The case of the Petitioner is
squarely covered by Clause (i) and (iii) of the parameters
laid down in State of Punjab and others vs. Rafiq Masih
(White Washer) and others (supra). The Tribunal fell in error
in distinguishing the decision in State of Punjab and others
vs. Rafiq Masih (White Washer) and others (supra), as in
our opinion, the present case is squarely covered by the
said decision.
901.wp.6451-2025.doc
14. The Writ Petition is accordingly allowed. The
impugned judgment and order dated 19 th March 2025 is
quashed and set aside. Consequently, the Original
Application No.953 of 2022 is allowed and the order of
recovery is quashed and set aside.
(N. R. BORKAR, J.) (M. S. KARNIK, J.)
Signed by: Pradnya Bhogale
Designation: PA To Honourable Judge
Date: 17/06/2025 19:29:29
