Bombay High Court
Omprakash Baburaoji Gaidhane vs State Of Maha., Thr. Secretary, Dept. Of ... on 14 October, 2025
Author: M.S. Jawalkar
Bench: M.S. Jawalkar
2025:BHC-NAG:10882-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 5193 OF 2024
PETITIONER : Omprakash Baburaoji Gaidhane, Aged
54 Years, Occu. Service, R/o. Om Sai
Shri Ram Nagar, Tah. Tumsar, District
Bhandara.
//VERSUS//
RESPONDENTS : 1. State of Maharashtra, through its
Secretary, Department of Rural
Development and Water Conservation,
Mantralaya, Mumbai.
2. The Zilla Parishad Bhandara, through
Chief Executive Officer, Bhandara.
3. Education Officer (Primary), Zilla
Parishad, District - Bhandara.
4. The Head Master, Zilla Parishad High
School Mohadi, Tah. Mohadi, District
Bhandara.
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Mrs. S.S. Wandile, Advocate for the Petitioner.
Mr. A.V. Palshikar, AGP for Respondent No.1.
None for Respondent Nos.2 to 4.
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CORAM : SMT. M.S. JAWALKAR AND
RAJ D. WAKODE, JJ.
RESERVED ON : 25th SEPTEMBER, 2025.
PRONOUNCED ON : 14th OCTOBER, 2025.
JUDGMENT :
- (PER : RAJ D. WAKODE, J.)
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Heard Mrs. S.S. Wandile, learned counsel for the petitioner,
Mr. A.V. Palshikar, learned Assistant Government Pleader for
respondent No.1.
2. RULE. Rule made returnable forthwith. Heard finally with
the consent of the learned counsel for the parties.
3. The petitioner has approached this Court seeking challenge
to the impugned order dated 01/07/2024, passed by respondent
No.2 - Chief Executive Officer, Zilla Parishad, Bhandara, thereby
directing the recovery of excess payment made towards the Grade Pay
difference from GP-4300 to GP-4500, in respect of teachers who were
promoted from Assistant Lower Division Graduate Teacher to
Assistant Secondary School Teacher (Higher Grade), similar to the
petitioner.
4. The petitioner was appointed on 11/03/1991 as an
Assistant Primary Teacher. At the time of appointment, the petitioner
held the qualification of S.S.C. and D.Ed. He subsequently completed
his B.A. and B.Ed. The petitioner was promoted from the post of
Assistant Lower Division Graduate Teacher to Assistant Secondary
School Teacher (Higher Grade) by Respondent No.2, vide promotion
order dated 06/05/2013, which is placed on record at page No.15
(Annexure-1).
5. Upon promotion, as the petitioner's responsibility
increased, he became eligible for a promotional increment, and was
accordingly given a promotional increment of Rs.610/- w.e.f.
01/07/2013 vide Government Resolution dated 05/05/2010.
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Furthermore, as per the Government Resolution dated 27/02/2009, in
cases where there is no change in salary scale upon promotion, an
increase in Grade Pay is to be given. Consequently, the Finance
Department approved an additional Grade Pay of Rs.200/- w.e.f.
01/07/2013, resulting in a pay fixation of Rs.9300-34800 with
GP-4500.
6. It is pertinent to note that the said pay fixation was
accepted by the Competent Authorities of the Government and the
Zilla Parishad, and the same was extended not only to the petitioner
but also to other similarly situated teachers.
7. Respondent No.2, vide order dated 24/09/2018, issued a
clarification stating that a person who is promoted and posted to a
position with the same salary scale is not entitled for a promotional
increment. Accordingly, vide order dated 02/08/2019, it was directed
that excess payments made on account of such increments will be
recovered from those persons who had received the increase, on the
ground that if a person is promoted and posted to another post with
the same salary scale, there is no requirement for pay fixation in
respect of the concerned teacher.
8. The aforesaid order dated 02/08/2019 was challenged by
various teachers working under the Zilla Parishad, Bhandara, by filing
Writ Petition Nos.6771/2019, 6772/2019, 6780/2019 and 6827/2019
before this Court. This Court, vide its common judgment dated
24/08/2021, held that such recovery was not permissible, and
accordingly, quashed the order dated 02/08/2019, passed by the
Chief Executive Officer, Zilla Parishad, Bhandara, to the extent that it
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directed recovery of the excess payments made to each petitioner. The
copy of the said judgment is placed on record at page No.28
(Annexure-7).
9. Despite having suffered the aforesaid judgment dated
24/08/2021, respondent No.2 has issued another communication
dated 01/07/2024, thereby directing the recovery of excess payment
made towards the Grade Pay difference from GP-4300 to GP-4500, in
respect of teachers who were promoted from Assistant Lower Division
Graduate Teacher to Assistant Secondary School Teacher (Higher
Grade). The petitioner is one such Assistant Teacher who is now
subjected to recovery of the alleged excess payment, and has
therefore approached this Court seeking quashing and setting aside of
the impugned order dated 01/07/2024, passed by respondent No.2 -
Chief Executive Officer, Zilla Parishad, Bhandara.
10. Mrs. Wandile, learned counsel for the petitioner, contends
that the petitioner was serving as an Assistant Lower Division
Graduate Teacher and was duly promoted to the post of Assistant
Secondary School Teacher (Higher Grade) vide order dated
06/05/2013. Therefore, the petitioner was entitled for the enhanced
increment in grade pay. She submits that the aforesaid grade pay was
granted on account of the promotion, as the petitioner was legally
entitled for the same, and not due to any misrepresentation or fraud
on the part of the petitioner.
11. She further submits that the petitioner is a Class-III
employee and the recovery pertains to payments made over a period
exceeding five years. Hence, such recovery is not permissible in view
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of the law laid down by the Hon'ble Apex Court in the case of State of
Punjab and Ors. Etc. Vs. Rafiq Masih (White Washer) Etc. (AIR 2015
SC 696). Therefore, she submits that the impugned order dated
01/07/2024, issued by respondent No.2, is clearly unsustainable in
the eyes of law and deserves to be quashed and set aside.
12. This Court, on 05/09/2024, issued notice for final disposal
to the respondents. The notice was duly served upon respondent
Nos.2 to 4. Respondent Nos.2 to 4 engaged Ms. Veena S. Mool,
learned counsel, to appear on their behalf in the present petition.
However, it appears that, till date, respondent Nos.2 to 4 have not
filed their reply opposing the claim of the petitioner. It is also
pertinent to note that, when the matter was called for final hearing
today, none appeared on behalf of respondent Nos.2 to 4.
13. Since the petitioner is an employee of respondent No. 2 -
Zilla Parishad, Bhandara, and is working in respondent No. 4 - School
run by Zilla Parishad, Bhandara, and is challenging the impugned
communication dated 01/07/2024 issued by the Chief Executive
Officer, Zilla Parishad, Bhandara, and in view of the fact that similar
issues were raised in Writ Petition Nos.5256/2024 and 5257/2024,
which were decided by this Court vide judgment dated 14/10/2025,
we proceed to decide the present writ petition in accordance with the
view taken by this Court in the said writ petitions.
14. We have heard the learned counsel for the petitioner and
perused the material on record. At the outset, it may be stated that
respondent No.2 has not contended that the order of promotion was
passed on account of any misrepresentation or fraud committed by
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the petitioner. Neither it is the case of respondent No.2 that the
petitioner was granted the benefit of pay fixation on the post of
Assistant Secondary School Teacher (Higher Grade) based on any
misrepresentation or fraud.
15. It is pertinent to mention that the order of promotion was
issued on 06/05/2013, whereas the impugned communication
directing recovery on the basis of the said promotion was issued on
01/07/2024 i.e. after a lapse of more than 11 years.
16. The petitioner was granted the benefit of revised Grade Pay
from 01/07/2013, which continued until 01/03/2023, when the
Grade Pay was revised and since then, the petitioner has been
drawing a reduced salary. However, it is undisputed that the petitioner
received payments based on the higher Grade Pay from 01/07/2013
to 01/03/2023 i.e. for a period of more than ten years. In our
considered view, the observations in the case of Rafiq Masih (White
Washer) Etc. (supra) in paragraph 12(i) to 12(iii), which are
reproduced hereinbelow, are squarely applicable to the facts of the
present case.
"12. 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,
summarise 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.
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(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."
17. In that view of the matter, the impugned order dated
01/07/2024, passed by respondent No.2 - Chief Executive Officer,
Zilla Parishad, Bhandara, insofar as it directs recovery of excess
payment made to the petitioner, is unsustainable in the eyes of law
and deserves to be quashed and set aside.
18. In our view, the aforesaid judgment clearly covers the
present case, and therefore, for the reasons stated above, we propose
to allow the present writ petition. Accordingly, we proceed to pass the
following order:
ORDER
(a) The writ petition is allowed.
(b) The impugned order dated 01/07/2024, passed by
respondent No.2 - Chief Executive Officer, Zilla Parishad, Bhandara to
the extent it directs the recovery of excess payment made to the
petitioner, is hereby quashed and set aside.
(c) Rule is made absolute in aforesaid terms. The parties to
bear their own costs.
(RAJ D. WAKODE, J.) (SMT. M.S. JAWALKAR, J.)
Vijaykumar
Signed by: Mr. Vijay Kumar
Designation: PA To Honourable Judge
Date: 14/10/2025 19:26:59
