Bombay High Court
Sunanda Dajiba Gajbhiye vs State Of Maha., Thr. Principal ... on 5 May, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:4731-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 6294 OF 2022
Sunanda dajiba Gajbhiye,
aged 60 yrs,
Occ. Retired, Z.P. Servant,
R/o. Veternary College,
Quarter No. L-4, Seminary Hills,
Nagpur ......PETITIONER
...V E R S U S...
1. The State of Maharashtra
through the Principal Secretary of Urban
Development Mantralaya,
Mumbai 32
2. The Director of Health Services
Raja Bahadur Mill Road, Sangamvadi,
Pune, 411 001
3. The Chief Executive Officer,
Zilla Parishad, Civil Lines,
Nagpur Nagpur
3. The District health Officer
Zilla Parishad, Civil Lines
Nagpur Nagpur
4. The Block Development Officer
Panchayat Samiti Mouda
District Nagpur .....RESPONDENTS
---------------------------------------------------------------------------------------------
Mr. S.D. Malke, Advocate for the petitioner.
Mr. A.V. Palshikar, AGP for respondent Nos. 1&2/State.
Mr. Shaikh Majid, Advocate for respondent Nos. 3 to 5.
CORAM:- AVINASH G. GHAROTE, &
ABHAY J. MANTRI, JJ.
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DATE : 05.05.2025
JUDGMENT (Per: Abhay J. Mantri, J.)
Heard. Rule. Heard finally by consent of learned counsel
for the respective parties.
2. This petition questions order/communication dated
28.02.2019 passed/issued by Administrative Officer, Zilla Parishad
to Medical Officer, Sirsi and letter dated 17.12.2019 issued by Block
Development Officer, Mouda to District Health Officer, Zilla
Parishad, Nagpur and seeks direction to respondents to refund
amount of Rs. 97,193/- with interest to her and award/give benefits
from 2008-09 towards ACP scheme of 24 years' service.
3. The petitioner was appointed as an ' Auxiliary Nurse
Midwife' by an appointment order dated 22.03.1984. She has
completed two years' probation successfully. However, surprisingly,
in the month of May 1986, on the basis of an anonymous complaint,
a show cause notice was issued to her on 15.05.1986. She replied
the same, contending that false allegations were made against her.
Without conducting an enquiry and following the principles of
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natural justice, respondent No. 3 punished her vide order dated
04.06.1986 and stopped her two increments permanently. On
08.09.1986, she received communication informing her that they do
not require her services. Subsequently, vide notice dated
13.09.1986, stated that her services were terminated. Aggrieved by
the communication, she had preferred Writ Petition No. 2027/1986.
By order dated 31.03.2000, the termination order was quashed and
set aside, and she was directed to be reinstated in service, and the
petition was disposed of.
4. Pursuant to the order, she was granted benefits of time-
bound promotion in terms of provisions of Rule 11(1) of the
Maharashtra Civil Services (Leave) Rules, 1981. (for short- 'Leave
Rules 1981'). Then vide communication dated 28.02.2019, issued by
Administrative Officer Zilla Parishad to Medical Officer and
informed that pay fixation was not done as per the time bound
promotion in terms of Rule 11(1) as the pay and allowances during
the period of termination were not payable to her and therefore,
directed to recover excess payment made to her from 31.03.2001 till
28.02.2019.
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5. Pursuant to the said communication, the petitioner's
service book was returned to respondent No. 5, Block Development
Officer, to remove deficiencies in the service book. Respondent No.
5 informed the authority that payment from 13.07.2000 to
31.05.2019 was made to the petitioner, and after the amendment of
pay fixation, recovery would be done. Then, deficiencies were
removed, and in terms of the 6th and 7th Pay Commission, pay
fixation of the petitioner was prepared and sent for approval.
Accordingly, vide communication dated 17.12.2019, the District
Health Officer has granted approval to said pay fixation. On
30.06.2020, the petitioner attained the age of superannuation.
6. It is contended that the petitioner has completed 24
years of service in the year 2008. However, she was granted the ACP
scheme of 24 years' benefit w.e.f. 2010. She did not grant benefits
for the year 2008-2009. Therefore, it is asserted that deduction of
Rs. 97,193/- from her salary, treating it as an excess amount, is
totally illegal and improper since the amount has been paid to a
class III employee and the same cannot be recovered from such an
employee; hence, she has preferred this petition.
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7. Mr. Malke, the learned counsel for the petitioner,
vehemently contended that the petitioner is a Class III employee
and therefore, in view of the mandate laid down in State of Punjab
and Ors Vs. Rafiq Masih (White Washer) and others (2015)4 SCC 334
("Rafiq Masih") it would not be proper to deduct the amount, if paid
in excess to her, from her salary within one year before her
retirement or after her retirement and therefore, the impugned
order of deduction of amount is not sustainable in the eyes of law.
Hence, he urged that those communications be set aside and that
the excess payment of Rs. 97,193/-, which was deducted, be
refunded to the petitioner.
8. He further argued that vide order dated 18.04.2002, this
Court has quashed and set aside the termination order dated
08.09.1986. Then, the respondent No. 2, directed the reinstatement
of the petitioner in service, observing that the petitioner will not be
entitled to salary for the period from 31.03.2000 till her
reinstatement, as she did not work during the said period. However,
respondent No. 2 has not considered said order in its proper
perspective and erred in directing the re-fixation of the pay of the
petitioner and recovery of the excess amount. Hence, he urged that
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said order is not sustainable in the eyes of the law. He also
canvased that she had completed 24-year service in 2008, however,
respondent No. 2 did not grant benefits to her from 2008 but the
same were given from 2010 on the ground that she was not in
service for two years and therefore, submitted that said direction by
respondent authority is contrary to the settled principles of law and
hence, same is liable to be set aside.
9. Per contra, Mr. Majid, learned Counsel for respondent
Nos. 3 to 5 strenuously opposes the petition on the ground that the
petitioner was not entitled to salary for the period from 31.03.2000
till she was reinstated in service. The Administrative Officer
(Health), Zilla Parishad vide letter dated 28.02.2019 addressed to
the Medical Officer directing recovery of excess payment of
increments made to her for 31.03.2000 to 12.07.2002. Accordingly,
Medical Officer, PHC, Umrer recovered the excess payment made to
the petitioner on 01.04.2019 i.e. before one year of her
superannuation on 30.06.2020, therefore, the dictum laid down in
Rafiq Masih (supra) is not helpful to the petitioner in support of her
grievance, hence, prayed for dismissal of the petition.
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10. We have appreciated the rival contentions of the learned
counsel for the parties and gone through the record and the
judgment in Rafiq Masih (supra).
The short question that arises for determination is
"Whether, in view of the law laid down in the case of
Rafiq Masih (supra), the direction of recovery of arrears from the
petitioner's retiral dues is required to be stopped, and impugned
communications dated 28.02.2019 and 17.12.2019 are also
required to be quashed and set aside."
11. While considering the above question, we would like to
reproduce the material facts of the case as follows:
By an appointment order dated 22.03.1984, the
petitioner was appointed as an ' Auxiliary Nurse Midwife'. Based on
an anonymous complaint, she received an order dated 08.09.1986
from respondent 3 informing her that her services would be
terminated one month after receiving the order. The said order was
challenged before this Court in Writ Petition No. 2027/1986. The
writ petition was admitted on 13.10.1986. On 14.10.1986, the
status quo was ordered to be maintained, and by order 21.10.1986,
this Court directed the continuation of the petitioner's services until
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the said petition was disposed of. On 18.01.2000, the said petition
was dismissed in default. On 25.01.2000, the petitioner moved an
application to restore the writ petition. In view of the dismissal of
the petition on 18.01.2000, the respondent No.3 authority, by
issuing an order dated 31.03.2000, implemented the order of
termination dated 08.09.1986. On 18.04.2002, this Court allowed
the petition and quashed and set aside the termination order dated
08.09.1986 and consequently quashed and set aside the order dated
21/31.03.2000 and directed respondent No. 2 to reinstate the
petitioner in service, forthwith.
The said order clarified that " the petitioner will not be
entitled to salary for the period from 31.03.2000 till she was
reinstated, as she had not worked during the said period, i.e. from
31.03.2000 till she assumes her services." Similarly, ordered that "it
will be open to respondent No. 2 to pass such appropriate orders as
they deem fit and proper on the question of counting of her services
for the said period for the purpose of the service and other benefits
in accordance with the rules and regulations applicable."
Pursuant to the said order, the petitioner joined her
services on 13.07.2002. Thereafter vide letter/communication dated
22.04.2003 (02.05.2003), the respondent No.3 chief executive
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officer as per Rule 48(4) of the Maharashtra Civil Services (Pension)
Rules 1982 (for short- 'Pension Rules 1982'), the period of
interruption in service of the petitioner from 31.03.2000 to
12.07.2002, was condoned and the same was treated as continuous
service for the grant of pensionary and other benefits. However, it
was made clear that payment of the salary and allowances for the
said period was not permissible to the petitioner.
After completion of 12 years of her services, the benefit
of the first-time bound scheme was granted to her w.e.f. 01.04.1997.
The administrative officer of the health department, vide
communication dated 28.02.2019, informed the medical officer,
PHC, Sirsi, that no pay fixation was determined as per time-bound
promotion in terms of Rule 11(1)(a) of the Pay Rules 1981. It was
further informed that though the period from 31.03.2000 to
12.07.2002 was condoned, the salary and allowances for said period
were not permissible to pay to the petitioner; therefore, it was
directed to refix said pay scale and recover the excess amount of
payment made to her and submit the report.
12. Pursuant to the said communication, Medical Officer,
PHC, Sirsi vide office order dated 01.04.2019 re-fixed the pay scale
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of the petitioner as per Rule 11(1)(a) of the Pay Rules 1981 and
directed to recover the excess payment made to the petitioner.
Accordingly, an amount of Rs. 97,193/- was recovered from the GPF
fund.
13. While determining this issue, it is necessary to
consider the mandate laid down in the case of ' Rafiq Masih'
(supra), wherein the Hon'ble Apex Court, after considering the
various decisions, has summarised how the recoveries by the
employer would be impermissible in law in paragraph 18, which
reads thus:
"18. 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 excess of their entitlement. Be that as it may,
based on the decisions referred to herein above, we may, as
a ready reference, summaries 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
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would far outweigh the equitable balance of the employer's
right to recover."
In light of the above mandate, we have to scrutinise the
petitioner's claim to determine whether she is entitled to claim the
relief as prayed. In view of clause II of paragraph 18 in Rafiq Masih
(supra), "Recovery from retired employee or employees who are
due to retire within one year of the order of recovery", then recovery
from the pay of a class III employee is impermissible. As per clause
V of paragraph 18 in Rafiq Masih (supra), "if the Court arrives at the
conclusion that the recovery made from the employee is found to be
iniquitous, harsh, or arbitrary, in that case, it would be impermissible
for the employer to recover the same."
14. It is undisputed that the petitioner was superannuated on
30.06.2020, and an order to recover the excess payment was made
vide office order dated 01.04.2019, i.e. before one year of the
petitioner's retirement. Therefore, as per clause II of paragraph 18, it
cannot be said that such recovery of excess payment was
impermissible. On the contrary, it seems that said recovery was
conducted one year before the superannuation of the petitioner.
Secondly, it is evident from the record that the
respondent authority, prior to one year of the petitioner's retirement
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pursuant to a communication dated 28.02.2019 by order dated
01.04.2019, has revised the petitioner's pay and recovered an excess
amount of Rs. 97,193/-. The order of re-fixation of pay scale was
neither challenged nor did any objection arise about the said order
with the respondent authority. Therefore, there is no reason to
disbelieve the said office order. It is also undisputed that said order
was passed and implemented one year before the superannuation of
the petitioner. Therefore, as per clauses II and V of paragraph 18 of
Rafiq Masih (supra), the respondent authority's action cannot be said
to be iniquitous, harsh, or arbitrary. Moreover, it cannot be said that
the recovery of excess payment before one year of her
superannuation would cause undue hardship to her, as the order for
recovery of the said amount was passed before one year of
superannuation of the petitioner. Thus, in our opinion, recovery of
the part of overpayment by the authority cannot be said to be
iniquitous or harsh or arbitrary, so that the petitioner is entitled to
claim the reimbursement, but as per the mandate in Rafiq Masih
(supra), further recovery of overpayment could be stopped.
Consequently, we answer the question partly in the affirmative
accordingly.
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15. In the aforesaid background, the petition is partly
allowed. Respondent authorities are hereby restrained from
recovering the remaining over-payment made to the petitioner from
further retirement benefits, as per the impugned communication
dated 28.2.2019 and the impugned office order dated 17.12.2019 to
that extent, is quashed and set aside. Rule is made partly absolute in
the above terms. No costs.
(ABHAY J. MANTRI, J.) (AVINASH G. GHAROTE, J.)
R. Belkhede,
Personal Assistant
Signed by: Mr. R. S. Belkhede
Designation: PA To Honourable Judge
Date: 06/05/2025 11:01:36
