Bombay High Court
Nilkanth Panditrao Aghor vs The State Of Maharashtra And Others on 6 May, 2025
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2025:BHC-AUG:13417-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5268 OF 2019
Nilkanth s/o Panditrao Aghor,
Age : 58 years, Occu: Retired as
Registrar (District Court, Osmanabad),
R/o At Post Chikali, Tq. & Dist. Osmanabad.
...PETITIONER
-VERSUS-
1. State of Maharashtra.
Department of Law and Judiciary,
Mantralaya, Mumbai.
2. Accountant General.
Through its Account Officer
Pay Verification Unit Department,
Aurangabad.
3. The Principal District Judge,
Osmanabad
(in Administrative Capacity),
District Court, Osmanabad,
Tq. & Dist. Osmanabad.
4. Accounts Department,
District Court, Osmanabad.
Tq. & Dist. Osmanabad.
5. The Principal Secretary,
Law and Judiciary Department,
Mantralaya, Mumbai.
6. Accountant General, Nagpur,
Accounts Department, Nagpur.
...RESPONDENTS
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...
Shri Gaurav L. Deshpande, Advocate for the Petitioner.
Shri R.K. Ingole, AGP for Respondent Nos.1, 2, 5 and 6/State.
Shri C.K. Shinde, Advocate for Respondent Nos.3 and 4.
...
CORAM : MANGESH S. PATIL
&
PRAFULLA S. KHUBALKAR, JJ.
Reserved on : 04th March, 2025
Pronounced on : 06th May, 2025
JUDGMENT (Per Prafulla S. Khubalkar, J.) :
-
1. Heard.
2. Rule. Rule made returnable forthwith and heard
finally by consent of the parties.
3. Instant petition under Article 226 of the Constitution
of India takes exception to the objection dated 29.10.2018 raised
by respondent No.2 about the petitioner's pay fixation and the
order dated 28/29.12.2018 of refixation of pay of the petitioner
coupled with the order dated 10.01.2019 directing recovery of
overpayment from pensionary benefits of the petitioner.
4. Factual matrix leading to the filing of the instant
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petition shorn of surplusage, is thus:-
(a) The petitioner joined service on 02.11.1984 as
'English Section Writer' at Civil Court, Junior Division, Paranda,
District Osmanabad. On 29.04.1985, he was transferred to the
District Court, Osmanabad as 'Junior Clerk'. He was then
promoted as 'Senior Clerk' on 14.03.1989. Thereafter, in the year
2003, the petitioner was promoted to the post of 'Assistant
Superintendent' and in July, 2008, he was promoted as
'Superintendent'. The petitioner's pay was fixed on the
respective posts from time to time even by applying the
recommendations of the Shetty Commission. On 15.09.2018, the
petitioner was promoted as 'Registrar', District Court,
Osmanabad, however, subsequently vide order dated 26.09.2018
he was granted deemed promotion on the post of 'Registrar'
w.e.f. 01.06.2018. On 30.09.2018, the petitioner retired on
superannuation from the post of Registrar.
(b) Post retirement, during the process of verification of
the petitioner's service book, respondent No.2/ Accountant
General raised an objection dated 29.10.2018 regarding pay
fixation of the petitioner. Pursuant thereto, the Verification Unit
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refixed the petitioner's pay by order dated 28/29.12.2018 and
inferred that overpayment of Rs.5,41,658/- was made to the
petitioner. Resultantly, the amount of overpayment was ordered
to be deducted from pensionary benefits of the petitioner, which
is challenged by way of the instant petition.
5. To controvert the petitioner's case, respondent No.2/
Accountant General, Aurangabad, filed affidavit in reply dated
17.07.2019 justifying the objection and the decision of recovery.
Respondent No.6/ Accountant General, Nagpur, also filed
separate affidavit dated 16.01.2024 and justified the objection.
Respondent Nos.3 and 4/ Principal District Judge and the
Accounts Department, District Court, Osmanabad, also filed
their separate affidavit dated 04.02.2025 justifying the decision
of refixation and recovery.
6. Arguing for the petitioner, learned advocate Shri
Gaurav Deshpande vehemently submits that the impugned
objection and the order of recovery is arbitrary and illegal
thereby, depriving the petitioner from the benefits of Shetty
Commission's recommendations. He vehemently submits that the
recovery from pensionary benefits of the petitioner is against the
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settled position of law laid down in the matter of State of
Punjab and others vs. Rafiq Masih (White Washer) and
others, (2015) 4 SCC 334. He submits that the objection dated
29.10.2018 is itself unsustainable and without any fault on the
part of the petitioner, the impugned recovery is ordered.
7. Per contra, advocate Shri C.K. Shinde learned
counsel for respondent Nos.3 and 4 strenuously opposes the
petition and submits that the revised pay fixation is in accordance
with Government Resolution dated 20.10.2011 which has
implemented the recommendations of the Shetty Commission.
He submits that the revised pay scale for the post of 'Assistant
Superintendent' was Rs.6500/-, however, the District Judge-1 at
Omerga, District Osmanabad, vide order dated 12.01.2012 had
incorrectly revised the pay of the petitioner as Rs.7100/- [6500 +
(200x3) = 7100] as on 01.04.2003. The learned advocate would
then submit that respondent No.2 Accountant General being the
competent authority has verified the pay of the petitioner at the
time of his retirement and rightly raised an objection dated
29.10.2018 to the pay fixation of the petitioner at Rs.7100/-. In
view of the said objection, the District Judge, Omerga, refixed
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the pay of the petitioner vide order dated 29.12.2018 and
rectified it to be Rs.6500/- instead of Rs.7100/- by considering
the provisions of Government Resolutions dated 20.10.2011 and
18.10.2016. He submits that as has been rightly ordered by the
impugned order, the amount of overpayment of Rs.5,41,658/- is
liable to be recovered from the retirement benefits of the
petitioner. By inviting our attention to the undertakings dated
26.05.2009, 05.01.2012 and 18.02.2019 submitted by the
petitioner expressing his readiness to refund the amount of
excess payment, he would submit that the petitioner is not
entitled to derive any benefit of the judgment of the Supreme
Court in the matter of Rafiq Masih (supra). In support of his
submissions, he relies on the judgment in the matter of High
Court of Punjab and Haryana and others vs. Jagdev Singh,
(2016) 14 SCC 267.
8. Learned AGP Shri R.K. Ingole for respondent
Nos.1, 2, 5 and 6 adopts the submissions made by the learned
advocate Shri Shinde and opposes the petition. In addition, he
relies upon Rule 134A of the Maharashtra Civil Services
(Pension) Rules, 1982.
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9. We have considered the rival contentions of the
parties and perused the papers.
10. Primary issue which falls for our consideration is
about validity of the objection raised by respondent No.2
regarding wrong pay fixation of the petitioner. It has to be noted
that the petitioner was promoted as Assistant Superintendent on
09.07.2003. Revised pay scale for the post of Assistant
Superintendent was Rs.6500-10500/- w.e.f. 01.04.2003. Despite
this, while revising the petitioner's pay, the same was fixed at
Rs.7100/- instead of Rs.6500/- to which the petitioner was
entitled to. It is pertinent to note that respondent Nos.3 and 4
have categorically cleared this position vide their reply dated
04.02.2025, which is not controverted by the petitioner by any
rejoinder affidavit. Thus, the overpayment of Rs.5,41,658/- made
to the petitioner because of wrong pay fixation is not in dispute.
11. As regards the decision to recover the amount of
overpayment from pensionary benefits, it is crucial to note that
the petitioner belonged to Group B officers and had voluntarily
submitted the undertakings from the years 2009 to 2019
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categorically mentioning his readiness to refund the amount of
excess payment on account of discrepancy due to incorrect pay
fixation and also readiness to adjust the excess amount from
future payments. Pertinent to note that Rule 134A of the
Maharashtra Civil Services (Pension) Rules, 1982, provides for
recovery and adjustment of excess amount paid, which is
reproduced below:-
"134A. Recovery and adjustment of excess
amount paid.
If in the case of a Government servant, who has
retired or has been allowed to retire, -
(i) it is found that due to any reason whatsoever
an excess amount has been paid to him during
the period of his service including service
rendered upon re-employment after retirement,
or
(ii) any amount is found to be payable by the
pensioner during such period and which has
not been paid by or recovered from him, or
(iii) it is found that the amount of licence fee and
any other dues pertaining to Government
accommodation is recoverable from him for the
occupation of the Government accommodation
after the retirement,
then the excess amount so paid, the
amount so found payable or recoverable shall
be recovered from the amount of pension
sanctioned to him:
Provided that, the Government shall give
a reasonable opportunity to the pensioner to
show cause as to why the amount due should
not be recovered from him:
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Provided further that, the amount found
due may be recovered from the pensioner in
instalments so that the amount of pension is not
reduced below the minimum fixed by
Government."
12. This rule entitles the respondents to make recovery
of excess payments from retirement benefits when it is found that
due to any reason whatsoever an excess amount has been paid to
an employee during the period of his service.
13. The petitioner's reliance on the judgment in the
matter of Rafiq Masih (supra) is primarily on the ground that
recovery is ordered after his retirement. However, the petitioner
has failed to demonstrate any circumstance about recovery being
iniquitous or arbitrary, by raising any ground, defeating the
purport of the undertakings submitted by him. It is crucial to
note, after giving due consideration to the judgment in the matter
of Rafiq Masih (supra), the Honourable Supreme Court in the
subsequent judgment in Jagdev Singh (supra) has categorically
held that an employee is bound by the undertaking submitted by
him relating to recovery of overpayment. Relevant observations
of the Honourable Supreme Court in paragraph Nos.9 to 11 of
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the judgment in Jagdev Singh (supra) are reproduced below:-
"9. The submission of the Respondent, which found
favour with the High Court, was that a payment
which has been made in excess cannot be
recovered from an employee who has retired
from the service of the state. This, in our view,
will have no application to a situation such as
the present where an undertaking was
specifically furnished by the officer at the time
when his pay was initially revised accepting
that any payment found to have been made in
excess would be liable to be adjusted. While
opting for the benefit of the revised pay scale,
the Respondent was clearly on notice of the
fact that a future re-fixation or revision may
warrant an adjustment of the excess payment, if
any, made.
10. In State of Punjab and Ors. etc. v. Rafiq Masih
(White Washer), (2015) 4 SCC 334, this Court
held that while it is not possible to postulate all
situations of hardship where payments have
mistakenly been made by an employer, in the
following situations, a recovery by the
employer 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
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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. The principle enunciated in Proposition (ii)
above cannot apply to a situation such as in the
present case. In the present case, the officer to
whom the payment was made in the first
instance was clearly placed on notice that any
payment found to have been made in excess
would be required to be refunded. The officer
furnished an undertaking while opting for the
revised pay scale. He is bound by the
undertaking."
Thus, the main thrust of arguments of the petitioner
alleging recovery after retirement to be illegal, is weakened in
view of the pertinent observations of the Honourable Supreme
Court elucidating the purport of the undertaking executed by the
petitioner.
14. Although the counsel for the petitioner has advanced
submissions alleging discrimination with other employees,
however, nothing is demonstrated depicting any discrimination.
The issue of recovery of overpayment is case specific and it is
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considered in the peculiar facts of this case. The judgment of the
Honourable Supreme Court in V. Markandeya vs. State of
Andhra Pradesh, (1989) 3 SCC 191, reiterating the concept of
'equal pay for equal work' is of no assistance to the petitioner.
15. The undertakings dated 26.05.2009, 05.01.2012 and
18.02.2019 furnished by the petitioner from time to time
demonstrate that the petitioner was on notice of the fact that a
future refixation or revision may warrant an adjustment of excess
payment. It is pertinent to note that the undertakings are
voluntarily furnished during the period from 2009 to 2019 and
there is no grievance at all about absence of volition. As such,
there is no reason to nullify the effect of the undertakings and
they would operate with all its vigour.
16. In the peculiar facts of this case, in the wake of
undertakings submitted by the petitioner from time to time, in the
light of the legal position emanating from the judgment in
Jagdev Singh (supra) and considering the purport of Rule 134A
of the Maharashtra Civil Services (Pension) Rules, 1982, the
decision of the respondents to recover excess payment from the
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petitioner's pensionary benefits, needs no interference on any
count. The petitioner's challenge to the impugned decision of
recovery after retirement is primarily based on the judgment in
Rafiq Masih (supra), however, we are of the firm view that in
view of the undertakings submitted by the petitioner, the
judgment in the matter of Jagdev Singh (supra) would govern
the case.
17. In view of the above, the petition does not warrant
any interference under Article 226 of the Constitution of India
and the same is liable to be dismissed. The Writ Petition is
dismissed with no order as to costs.
18. Rule is discharged.
kps ( PRAFULLA S. KHUBALKAR, J.) ( MANGESH S. PATIL, J.)
