Bombay High Court
Ku. Vaishali Dhananjay Bhimtekar vs The State Of Maharashtra, Through ... on 8 May, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:4920-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 3222 OF 2020
Ku. Vaishali Dhananjay Bhimtekar,
Aged 42 yrs, Occ. Service,
R/o. Flat no. 304, Shri Apartment,
Thakur Layout, Prasad Colony,
Butibori,
Tah. and Dist. Nagpur ......PETITIONER
...V E R S U S...
1. State of Maharashtra,
through its secretary,
Department of Social Welfare,
Mantralaya, Mumbai 32
2. Assistant Commissioner,
Social Welfare Department,
Nagpur
3. Madhav Kuti Primary Ashram
School, Butibori,
Tah and Dist. Nagpur
through its Head Master .....RESPONDENTS
---------------------------------------------------------------------------------------------
Mr. N.S. Warulkar, Advocate for the petitioner,
Mr. J.Y. Ghurde, AGP for respondent Nos. 1 and 2/State.
CORAM :- AVINASH G. GHAROTE &
ABHAY J. MANTRI, JJ.
DATED : 08.05.2025
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JUDGMENT (Per: Abhay J. Mantri, J.)
Heard finally with the consent of the learned counsel for
the parties.
2. Petitioner challenges the order dated 18.03.2020, passed
by respondent No. 2 Assistant Commissioner Social Welfare,
whereby the revised pay scale granted to the petitioner from
Rs. 4440-7440 (Grade Pay Rs. 1600/-) to Rs. 4440-7440 (Grade Pay
Rs. 1300/-) and further directed to recover excess amount paid to
her vide order dated 12.04.2016.
3. The petitioner was appointed on 21.07.2004 as Assistant
Cook from Scheduled Tribe Category in respondent No. 3 Madhav
Kuti Primary Ashram School, Butibori, Nagpur (for short- the
"Ashram School"). The petitioner's services were approved by
respondent No. 2 vide order dated 12.10.2004 w.e.f. 21.07.2004.
Then, after considering her satisfactory services, respondent No. 2
vide order dated 12.04.2016 revised her pay scale and increased
grade pay to Rs. 1600/-from Rs. 1300/- w.e.f. 01.01.2006 and
shown her designation/post as a 'Cook'. Thereafter, respondent No.
2 vide order dated 18.06.2016 released the difference of arrears
w.e.f. 01.04.2009 till 01.07.2015.
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It is further contended that the two sanctioned posts of
Cook were available with respondent No. 3, which can be reflected
in the approved staffing pattern of 2017-18 and 2018-19. Only two
cooks were available in the respondent Ashram School, including
the petitioner, so the question of reversion of pay from grade pay of
Rs. 1600/- to Rs. 1300/- did not arise. However, respondent No. 2,
without granting an opportunity of hearing, without issuing any
show cause notice and without verifying the actual position of the
sanctioned staffing pattern of the Ashram School, cancelled the
revised pay scale granted, vide order dated 18.03.2020 with
direction to recover the said excess payment made to the petitioner
which was granted w.e.f. 01.01.2006 to 31.03.2020, feeling
aggrieved by the said order, the petitioner approached this Court.
4. Mr. Warulkar, the learned Counsel for the petitioner, has
vehemently contended that without granting an opportunity of
hearing and without issuing show cause notice as well as without
verifying the actual position of the sanctioned staffing pattern of
respondent No. 3 Ashram School, respondent No. 2 has cancelled
the revised pay scale vide order dated 12.04.2016, is illegal and
contrary to the settled principle of natural justice. He further
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canvassed that no 'Assistant Cook' post is available with respondent
No. 3 Ashram School. Rather, two posts of Cook are available, and
therefore, the grant of revised pay scale vide order dated
12.04.2016 was just and proper, and no interference was required
by respondent No. 2 to revise/decrease the same. Lastly, he
submitted that the facts in the case at hand are covered by the
judgment of the Hon'ble Apex Court in the case of the State of
Punjab and Ors Vs. Rafiq Masih (White Washer) and Ors, (2015)4 SCC
334, therefore, respondent No. 2 is not entitled to recover the excess
payment made to the petitioner since she was a class D employee,
hence, urged for allowing the petition.
5. Per contra, Mr. Ghurde, the learned AGP, resisted the
petition on the ground that as per the Government Resolution dated
03.10.2017 and Corrigendum dated 22.03.2019, an alternate
remedy is available to the petitioner to challenge the impugned
order before the Deputy Commissioner by way of an appeal and,
therefore, the petitioner is not entitled to claim the relief in writ
jurisdiction. He has also canvased that the petition is premature as a
quasi-judicial forum is available to challenge the said order;
however, he has not disputed that the petitioner is a 'class D'
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employee and no post of Assistant Cook was available at the Ashram
School.
6. We have appreciated the submissions of the learned
Counsel for the parties and perused the record and the impugned
order.
7. At the outset, it appears that from 21.07.2004, the
petitioner was appointed as an 'Assistant Cook' from the ST category
with respondent No. 3, and respondent No. 2, vide order dated
12.10.2004, granted approval to the said appointment. Thereafter,
vide order dated 12.04.2016, her pay scale was revised, and grade
pay was increased from Rs. 1300/--to Rs. 1600/-. Vide order dated
18.06.2016, the difference of arrears w.e.f. 01.04.2009 till
01.07.2015 was released in her favour.
8. It further appears from the approved staffing pattern that
for the years 2017-18 and 2018-19 of respondent No. 3 Ashram
School, no post of Assistant Cook was available in the school, but
the post of "Cook" was available. The staffing pattern mentioned
the pay scale as Rs. 4440-7440 with grade pay Rs.1600/-.
Undisputedly, the petitioner's pay scale was revised in the said
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category from 18.06.2016. The staffing pattern does not show that
the post of Assistant Cook was available, and the post of 'Cook' is
shown in the "class D" category.
It also reveals that respondent No. 3 has not denied the
averments of the petitioner that no opportunity was given to her or
show cause notice was issued prior to passing of the impugned
order, which leads to drawing an adverse inference that respondent
3 has no grievance about the said averment. Likewise, it seems that
respondent No. 3 authority has not considered the fact that no post
of Assistant Cook is available with respondent No. 3 school. The
availability of the post of Cook has not been considered by
respondent 2 authority before passing the impugned order.
Thus, it appears that respondent No. 2, without granting
an opportunity of hearing and considering the approved staffing
pattern, passed the impugned order, which is not sustainable in the
eyes of the law. Therefore, the mere availability of an alternate
remedy would not be an obstacle to considering this petition by
which her rights to grant the opportunity of hearing was taken
away. Apart from the above, in view of the law laid down in Rafiq
Masih (supra), the respondents are not entitled to recover the excess
amount paid to the petitioner, a Class D employee.
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9. As a result, it is evident that passing of the impugned
order without giving the opportunity of hearing, without show
cause notice as well as verifying the actual position of approved
staffing pattern of respondent No. 3, cancellation of revised pay is
contrary to the facts on record cannot be sustained in the eyes of the
law. It is evident that by passing the impugned order, respondent
No. 2 authority has failed to follow principles of natural justice, and
therefore, the impugned order is liable to be quashed and set aside.
Similarly, in view of the mandate laid down in the case of Rafiq
Masih (supra), respondents are not entitled to recover the excess
amount from the petitioner. As a result, we pass the following
order:
ORDER
i) The impugned order dated 18.03.2020, passed by
respondent No. 2 - Assistant Commissioner,
Social Welfare, Nagpur, is quashed and set aside.
ii) As a sequel, the respondents are hereby restrained
from recovering the excess payment made to her,
if any, for the period from 01.01.2006 to
31.03.2020.
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7. The petition is allowed 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: 08/05/2025 16:08:37
