RAVINDRA v. GHUGE AND R. M. JOSHI, JJ.DATE
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 1190 OF 2024Smt. Ranjana Pundlikrao MakaneAge : 58, Occu.: RetiredR/o: Pathri, Tq. Phulambri, District Chhatrapati Sambhajinagar… PETITIONERVERSUS1.The State of Maharashtra,Through its Secretary, General Administration Department,Mantralaya, Mumbai – 322.The Chief Executive Officer,Zilla Parishad, Chhatrapati Sambhajinagar,District Chhatrapati Sambhajinagar.3.The Chief Accountant and Finance Officer,Zilla Parishad, Chhatrapati Sambhajinagar,District Chhatrapati Sambhajinagar.4.The Medical Officer,Primary Health Center, Panwadod, Tq. Sillod,District Chhatrapati Sambhajinagar. … RESPONDENTSMr. Y. B. Bolkar, Advocate h/f Mr. K. B. Jadhav, Advocate for the Petitioner Mr. S. K. Tambe, AGP for the Respondent/StateMr. S. R. Dheple, Advocate for Respondent Nos. 2 to 4.CORAM : RAVINDRA V. GHUGE AND R. M. JOSHI, JJ.DATE : 18th MARCH, 2024ORAL JUDGMENT (PER - RAVINDRA V. GHUGE) :-1.Rule. Rule made returnable forthwith and heard finally byconsent of the parties.4.wp1190.24.odt1 of 9 2.The Petitioner has put forth prayer clauses ‘B’, ‘C’, ‘D’ and ‘E’as under:“ B)By way of appropriate writ order or direction in thelike nature, this Hon’ble High Court may kindly quashand set aside the impugned order dated 21/10/2023passed by the respondent No.4, thereby recommendingthe recovery of amount from the monetary benefitspayable to the petitioner on account of wrong payfixation, as the same is wholly unjustified and contraryto the law laid down by the Hon’ble Apex Court in thecase of State of Punjab and others V/s. Rafiq Masih(White Washer) and others reported in 2015(4) SCC334.C)By way of appropriate writ order or direction in thelike nature, this Hon’ble High Court may kindly direct therespondent Nos. 2 to 4 to pay the retirement benefitsand the pension in favour of the petitioner, on account ofattaining the age of superannuation on 31/10/2023,without effecting any recovery as recommended in theorder dated 21/10/2023 passed by the respondent No.4.D)Pending hearing and final disposal fo the WritPetition, this Hon’ble High Court may kindly stay andsuspend the effect, implementation and operation of theimpugned order dated 21/10/2023 passed by therespondent No.4, thereby recommending the recovery ofamount from the monetary benefits payable to thepetitioner.E)Pending hearing and final disposal of the WritPetition, this Hon’ble High Court may kindly direct therespondent Nos. 2 to 4 to pay the retirement benefitsand the pension in favour of the petitioner, on account ofattaining the age of superannuation on 31/10/2023,without effecting any recovery as recommended in theorder dated 21/10/2023 passed by the respondentNo.4.”3.The Petitioner was appointed as a Health Worker on 31stMarch, 1986 in the Zilla Parishad, Aurangabad. The pay fixation of thePetitioner was revised and sanctioned at the senior post pay scale on 30th4.wp1190.24.odt2 of 9
Legal Reasoning
September, 2013. On 26th February, 2019, the State Government issueda GR and directed not to effect any recovery from retired Class-3 andClass-4 employees in cases where excess payments have been made onaccount of wrong pay fixation. It is also provided that there shall not beany recovery from employees who have been paid excess payments formore than five years. Clause 1 (aa) of the said Government Resolutionfurther provides that recovery should not be made from the candidateswho are about to attain the age of superannuation.4.The Petitioner contends that Respondent No.2 promoted herto the post of Health Assistant and posted her at the Primary HealthCenter, Panwadod, Tq. Sillod, District Aurangabad vide the order dated29th July, 2021. The Petitioner has superannuated on 31st October, 2023.10 days prior to her retirement, Respondent No. 4 passed an order on21st October, 2023 revising the pay fixation and recorded that, as theStep Ladder Course was completed by the Petitioner in 2009, thebenefits would not be payable to her from the year 1998. Recovery wasordered. Hence, this Writ Petition.5.We have considered the submissions of the learnedAdvocates for the respective sides. The learned Advocate Mr. Dheple hasdrawn our attention to the affidavit-in-reply dated 5th March, 2024 andthe accompanying documents. He relies upon the judgment delivered bythis Court in Ananda s/o Vikram Baviskar Vs. State of Maharashtra and4.wp1190.24.odt3 of 9 others, 2022(2) Mh.L.J., 698 and the order of this Court dated 7thFebruary, 2024 passed in Writ Petition No. 6422 of 2019 (Meera NarayanUnawane and others Vs. The State of Maharashtra and others), atAurangabad.6.At page Nos. 50 and 51 of the Petition paper book, the ZillaParishad has produced the undertakings issued by the Petitioner. At pageNo. 50, the undertaking does not have any date. The learned Advocatefor the Petitioner fairly submits that the said undertaking was extractedfrom the Petitioner some time in 2013. The Petitioner superannuated on31st October, 2023. The learned Advocate for the Petitioner submits, oninstructions, that the Petitioner is agreeable for recovery of excessamounts from 2013 on wards till her superannuation. However, she has astrong objection for recovery of the amounts from March, 1998 as perthe impugned order dated 21st October, 2023.7.The learned Advocate for the Zilla Parishad opposes the saidrequest and submits that the recovery has to be made from 1998.8.We have perused the impugned order dated 21st October,2023. In the said order, the Zilla Parishad has referred to the “StampLender Course”. The learned Advocate for the Zilla Parishad submits thatthis is a mistake and it should actually read as “Step Ladder Course”. Itis conceded that the Zilla Parishad did not issue any notice of hearing to4.wp1190.24.odt4 of 9 the Petitioner to show cause as to why the pay fixation should not berevised/corrected and recovery should be initiated. 9.The learned Advocate for the Zilla Parishad submits that thePetitioner can prefer an Appeal to the CEO of Zilla Parishad forchallenging the impugned order passed by the Medical Officer, PrimaryHealth Center, Panwadod. We are not impressed by the said submissionfor the reason that in thousand of cases, this Court has entertained suchPetitions considering the grave urgency in the light of employers wakingup after 10 or 20 years, for initiating recoveries after superannuation ofthe employees. With such laches on the part of the employers, thePetitioner can’t be relegated to a statutory remedy available, in the lightof the judgment delivered by the Hon’ble Supreme Court in Ram AndShyam Company vs State Of Haryana And Ors (1985) 3 SCC 267.Paragraph No. 9 in Ram And Shyam Company (supra) reads thus:“9.Before we deal with the larger issue, let me putout of the way the contention that found favour with theHigh Court in rejecting the writ petition. The learnedSingle Judge as well as the Division Bench recalling theobservations of this Court in Assistant Collector ofCentral Excise v. Jainson Hosiery Industries rejected thewrit petition observing that 'the petitioner who invokesthe extraordinary jurisdiction of the court under Article226 of the Constitution must have exhausted thenormal statutory remedies available to him'. We remainunimpressed. Ordinarily it is true that the court hasimposed a restraint in its own wisdom on its exercise ofjurisdiction under Article 226 where the party invokingthe jurisdiction has an effective, adequate alternativeremedy. More often, it has been expressly stated thatthe rule which requires the exhaustion of alternative4.wp1190.24.odt5 of 9 remedies is a rule of convenience and discretion ratherthan rule of law. At any rate it does not oust thejurisdiction of the Court. In fact in the very decisionrelied upon by the High Court in The State of U.P. v.Mohammad Nooh it is observed “that there is no rule,with regard to certiorari as there is with mandamus,that it will lie only where there is no other equallyeffective remedy”. It should be made specifically clearthat where the order complained against is alleged tobe illegal or invalid as being contrary to law, a petitionat the instance of person adversely affected by it, wouldlie to the High Court under Article 226 and such apetition cannot be rejected on the ground that anappeal lies to the higher officer or the StateGovernment. An appeal in all cases cannot be said toprovide in all situations an alternative effective remedykeeping aside the nice distinction between jurisdictionand merits. Look at the fact situation in this case. Powerwas exercised formally by the authority set up underthe Rules to grant contract but effectively and for allpractical purposes by the Chief Minister of the State. Towhom do you appeal in a State administration againstthe decision of the Chief Minister? The clutch of appealfrom Ceasar to Ceasar’s wife can only be bettered byappeal from one's own order to oneself. Therefore thisis a case in which the High Court was not at all justifiedin throwing out the petition on the untenable groundthat the appellant had an effective alternative remedy.The High Court did not pose to itself the question, whowould grant relief when the impugned order is passedat the instance of the Chief Minister of the State. Towhom did the High Court want the appeal to be filedover the decision of the Chief Minister. There was noanswer and that by itself without anything more wouldbe sufficient to set aside the judgment of the HighCourt.”.Hence, we are not entertaining this objection of theemployer.10.In Syed Abdul Quadir Vs. State of Bihar and others,4.wp1190.24.odt6 of 9 2009(3) SCC 475 and State of Punjab and others V/s. Rafiq Masih(White Washer) and others reported in 2015(4) SCC 334, theHon’ble Supreme Court has culled out principles as to whendeductions or recoveries can be ordered against employees. It is wellsettled that recoveries at the fag end of the career from Class-3 andClass-4 employees should not be initiated. Even the State GR prohibitsrecoveries. For the sake of brevity, paragraph 18 of the judgment inRafiq Masih (supra), is reproduced here under :- “18.It is not possible to postulate all situations ofhardship, which would govern employees on the issueof recovery, where payments have mistakenly beenmade by the employer, in excess of their entitlement.Be that as it may, based on the decisions referred toherein above, we may, as a ready reference,summarise the following few situations, whereinrecoveries by the employers, would be impermissible inlaw:(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group'D' service).(ii) Recovery from retired employees, oremployees who are due to retire within one year,of the order of recovery.(iii) Recovery from employees, when the excesspayment has been made for a period in excess offive years, before the order of recovery is issued.(iv) Recovery in cases where an employee haswrongfully been required to discharge duties of ahigher post, and has been paid accordingly, eventhough he should have rightfully been required towork against an inferior post.(v) In any other case, where the Court arrives atthe conclusion, that recovery if made from the4.wp1190.24.odt7 of 9 employee, would be iniquitous or harsh orarbitrary to such an extent, as would far outweighthe equitable balance of the employer's right torecover.”11.In the judgment delivered by the Hon’ble Supreme Court inthe High Court of Punjab and Haryana and Others Vs. Jagdev Singh,2016 AIR (SCW) 3523, it has been held in paragraph 11 of the saidjudgment, as under:-“11.The principle enunciated in proposition (ii)above cannot apply to a situation such as in thepresent case. In the present case, the officer to whomthe payment was made in the first instance wasclearly placed on notice that any payment found tohave been made in excess would be required to berefunded. The officer furnished an undertaking whileopting for the revised pay scale. He is bound by theundertaking.”12. On the point of recovery, the Petitioner makes a fairstatement that as the undertaking was executed in 2013, she is willing tosuffer recovery from 2013 till 31st October, 2023 when shesuperannuated. Admittedly, the Petitioner has not been issued any noticeof hearing before revising the pay fixation. On this account, thePetitioner succeeds.13.In view of the above, this Writ Petition is partly allowed. Theimpugned order dated 21st October, 2023 is quashed and set aside to theextent of, a) the revision in the pay scale (without issuance of notice)and, b) recovery from 1998 up to 30/09/2013. The recovery from 1st4.wp1190.24.odt8 of 9 October, 2013 till 31st October, 2023 shall be effected. Needless to state,after deducting the recoverable amount for the period 1st October, 2013till 31st October, 2023, all retiral monetary benefits including pensionarybenefits, shall be paid to the Petitioner within a period of 90 days. 14.On the issue of revision in the pay fixation post retirement ofthe Petitioner, we permit the employer to issue a notice to the Petitionerand after granting her a reasonable opportunity of hearing, in the form oftendering a written submission, an appropriate order be passed. If thePetitioner is aggrieved by the said order, she would be at liberty to availof a remedy as may be permissible in law taking recourse to Rule 14 ofthe Maharashtra Zilla Parishad District Services (Discipline and Appeal),Rules 1964.15.Rule is made partly absolute in the above terms.( R. M. JOSHI, J. )( RAVINDRA V. GHUGE, J. )ssp4.wp1190.24.odt9 of 9