High Court
Legal Reasoning
*1* wp5268o19IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.5268 OF 2019Nilkanth 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 OfficerPay 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 *2* wp5268o19…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, 2025Pronounced on : 06th May, 2025JUDGMENT ( Per Prafulla S. Khubalkar, J. ) :- 1.Heard. 2.Rule. Rule made returnable forthwith and heardfinally by consent of the parties.3.Instant petition under Article 226 of the Constitutionof India takes exception to the objection dated 29.10.2018 raisedby respondent No.2 about the petitioner’s pay fixation and theorder dated 28/29.12.2018 of refixation of pay of the petitionercoupled with the order dated 10.01.2019 directing recovery ofoverpayment from pensionary benefits of the petitioner.4.Factual matrix leading to the filing of the instant *3* wp5268o19petition 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 theDistrict Court, Osmanabad as ‘Junior Clerk’. He was thenpromoted as ‘Senior Clerk’ on 14.03.1989. Thereafter, in the year2003, the petitioner was promoted to the post of ‘AssistantSuperintendent’ and in July, 2008, he was promoted as‘Superintendent’. The petitioner’s pay was fixed on therespective posts from time to time even by applying therecommendations of the Shetty Commission. On 15.09.2018, thepetitioner was promoted as ‘Registrar’, District Court,Osmanabad, however, subsequently vide order dated 26.09.2018he was granted deemed promotion on the post of ‘Registrar’w.e.f. 01.06.2018. On 30.09.2018, the petitioner retired onsuperannuation from the post of Registrar. (b)Post retirement, during the process of verification ofthe petitioner’s service book, respondent No.2/ AccountantGeneral raised an objection dated 29.10.2018 regarding payfixation of the petitioner. Pursuant thereto, the Verification Unit *4* wp5268o19refixed the petitioner’s pay by order dated 28/29.12.2018 andinferred that overpayment of Rs.5,41,658/- was made to thepetitioner. Resultantly, the amount of overpayment was orderedto be deducted from pensionary benefits of the petitioner, whichis challenged by way of the instant petition. 5.To controvert the petitioner’s case, respondent No.2/Accountant General, Aurangabad, filed affidavit in reply dated17.07.2019 justifying the objection and the decision of recovery.Respondent No.6/ Accountant General, Nagpur, also filedseparate affidavit dated 16.01.2024 and justified the objection.Respondent Nos.3 and 4/ Principal District Judge and theAccounts Department, District Court, Osmanabad, also filedtheir separate affidavit dated 04.02.2025 justifying the decisionof refixation and recovery.6.Arguing for the petitioner, learned advocate ShriGaurav Deshpande vehemently submits that the impugnedobjection and the order of recovery is arbitrary and illegalthereby, depriving the petitioner from the benefits of ShettyCommission’s recommendations. He vehemently submits that therecovery from pensionary benefits of the petitioner is against the
Legal Reasoning
*5* wp5268o19settled position of law laid down in the matter of State ofPunjab and others vs. Rafiq Masih (White Washer) andothers, (2015) 4 SCC 334. He submits that the objection dated29.10.2018 is itself unsustainable and without any fault on thepart of the petitioner, the impugned recovery is ordered.7.Per contra, advocate Shri C.K. Shinde learnedcounsel for respondent Nos.3 and 4 strenuously opposes thepetition and submits that the revised pay fixation is in accordancewith Government Resolution dated 20.10.2011 which hasimplemented the recommendations of the Shetty Commission.He submits that the revised pay scale for the post of ‘AssistantSuperintendent’ was Rs.6500/-, however, the District Judge-1 atOmerga, District Osmanabad, vide order dated 12.01.2012 hadincorrectly revised the pay of the petitioner as Rs.7100/- [6500 +(200x3) = 7100] as on 01.04.2003. The learned advocate wouldthen submit that respondent No.2 Accountant General being thecompetent authority has verified the pay of the petitioner at thetime of his retirement and rightly raised an objection dated29.10.2018 to the pay fixation of the petitioner at Rs.7100/-. Inview of the said objection, the District Judge, Omerga, refixed *6* wp5268o19the pay of the petitioner vide order dated 29.12.2018 andrectified it to be Rs.6500/- instead of Rs.7100/- by consideringthe provisions of Government Resolutions dated 20.10.2011 and18.10.2016. He submits that as has been rightly ordered by theimpugned order, the amount of overpayment of Rs.5,41,658/- isliable to be recovered from the retirement benefits of thepetitioner. By inviting our attention to the undertakings dated26.05.2009, 05.01.2012 and 18.02.2019 submitted by thepetitioner expressing his readiness to refund the amount ofexcess payment, he would submit that the petitioner is notentitled to derive any benefit of the judgment of the SupremeCourt in the matter of Rafiq Masih (supra). In support of hissubmissions, he relies on the judgment in the matter of HighCourt of Punjab and Haryana and others vs. Jagdev Singh,(2016) 14 SCC 267.8.Learned AGP Shri R.K. Ingole for respondentNos.1, 2, 5 and 6 adopts the submissions made by the learnedadvocate Shri Shinde and opposes the petition. In addition, herelies upon Rule 134A of the Maharashtra Civil Services(Pension) Rules, 1982. *7* wp5268o199.We have considered the rival contentions of theparties and perused the papers.10.Primary issue which falls for our consideration isabout validity of the objection raised by respondent No.2regarding wrong pay fixation of the petitioner. It has to be notedthat the petitioner was promoted as Assistant Superintendent on09.07.2003. Revised pay scale for the post of AssistantSuperintendent was Rs.6500-10500/- w.e.f. 01.04.2003. Despitethis, while revising the petitioner’s pay, the same was fixed atRs.7100/- instead of Rs.6500/- to which the petitioner wasentitled to. It is pertinent to note that respondent Nos.3 and 4have categorically cleared this position vide their reply dated04.02.2025, which is not controverted by the petitioner by anyrejoinder affidavit. Thus, the overpayment of Rs.5,41,658/- madeto the petitioner because of wrong pay fixation is not in dispute.11.As regards the decision to recover the amount ofoverpayment from pensionary benefits, it is crucial to note thatthe petitioner belonged to Group B officers and had voluntarilysubmitted the undertakings from the years 2009 to 2019 *8* wp5268o19categorically mentioning his readiness to refund the amount ofexcess payment on account of discrepancy due to incorrect payfixation and also readiness to adjust the excess amount fromfuture payments. Pertinent to note that Rule 134A of theMaharashtra Civil Services (Pension) Rules, 1982, provides forrecovery and adjustment of excess amount paid, which isreproduced below:-“134A.Recovery and adjustment of excessamount paid.If in the case of a Government servant, who hasretired or has been allowed to retire, -(i) it is found that due to any reason whatsoeveran excess amount has been paid to him duringthe period of his service including servicerendered upon re-employment after retirement,or (ii) any amount is found to be payable by thepensioner during such period and which hasnot been paid by or recovered from him, or(iii) it is found that the amount of licence fee andany other dues pertaining to Governmentaccommodation is recoverable from him for theoccupation of the Government accommodationafter the retirement,then the excess amount so paid, theamount so found payable or recoverable shallbe recovered from the amount of pensionsanctioned to him:Provided that, the Government shall givea reasonable opportunity to the pensioner toshow cause as to why the amount due shouldnot be recovered from him: *9* wp5268o19Provided further that, the amount founddue may be recovered from the pensioner ininstalments so that the amount of pension is notreduced below the minimum fixed byGovernment.”12.This rule entitles the respondents to make recoveryof excess payments from retirement benefits when it is found thatdue to any reason whatsoever an excess amount has been paid toan employee during the period of his service.13.The petitioner’s reliance on the judgment in thematter of Rafiq Masih (supra) is primarily on the ground thatrecovery is ordered after his retirement. However, the petitionerhas failed to demonstrate any circumstance about recovery beinginiquitous or arbitrary, by raising any ground, defeating thepurport of the undertakings submitted by him. It is crucial tonote, after giving due consideration to the judgment in the matterof Rafiq Masih (supra), the Honourable Supreme Court in thesubsequent judgment in Jagdev Singh (supra) has categoricallyheld that an employee is bound by the undertaking submitted byhim relating to recovery of overpayment. Relevant observationsof the Honourable Supreme Court in paragraph Nos.9 to 11 of *10* wp5268o19the judgment in Jagdev Singh (supra) are reproduced below:-“9.The submission of the Respondent, which foundfavour with the High Court, was that a paymentwhich has been made in excess cannot berecovered from an employee who has retiredfrom the service of the state. This, in our view,will have no application to a situation such asthe present where an undertaking wasspecifically furnished by the officer at the timewhen his pay was initially revised acceptingthat any payment found to have been made inexcess would be liable to be adjusted. Whileopting for the benefit of the revised pay scale,the Respondent was clearly on notice of thefact that a future re-fixation or revision maywarrant an adjustment of the excess payment, ifany, made.10. In State of Punjab and Ors. etc. v. Rafiq Masih(White Washer), (2015) 4 SCC 334, this Courtheld that while it is not possible to postulate allsituations of hardship where payments havemistakenly been made by an employer, in thefollowing situations, a recovery by theemployer would be impermissible in law:(i) Recovery from employees belonging toClass-III and Class-IV service (or Group 'C'and Group 'D' service).(ii) Recovery from retired employees, oremployees who are due to retire within oneyear, of the order of recovery.(iii) Recovery from employees, when theexcess payment has been made for a period inexcess of five years, before the order ofrecovery is issued.(iv) Recovery in cases where an employeehas wrongfully been required to dischargeduties of a higher post, and has been paidaccordingly, even though he should have *11* wp5268o19rightfully been required to work against aninferior post.(v) In any other case, where the Courtarrives at the conclusion, that recovery if madefrom the employee, would be iniquitous orharsh or arbitrary to such an extent, as wouldfar outweigh the equitable balance of theemployer's right to recover.11.The principle enunciated in Proposition (ii)above cannot apply to a situation such as in thepresent case. In the present case, the officer towhom the payment was made in the firstinstance was clearly placed on notice that anypayment found to have been made in excesswould be required to be refunded. The officerfurnished an undertaking while opting for therevised pay scale. He is bound by theundertaking.”Thus, the main thrust of arguments of the petitioneralleging recovery after retirement to be illegal, is weakened inview of the pertinent observations of the Honourable SupremeCourt elucidating the purport of the undertaking executed by thepetitioner.14.Although the counsel for the petitioner has advancedsubmissions alleging discrimination with other employees,however, nothing is demonstrated depicting any discrimination.The issue of recovery of overpayment is case specific and it is *12* wp5268o19considered in the peculiar facts of this case. The judgment of theHonourable Supreme Court in V. Markandeya vs. State ofAndhra 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 and18.02.2019 furnished by the petitioner from time to timedemonstrate that the petitioner was on notice of the fact that afuture refixation or revision may warrant an adjustment of excesspayment. It is pertinent to note that the undertakings arevoluntarily furnished during the period from 2009 to 2019 andthere is no grievance at all about absence of volition. As such,there is no reason to nullify the effect of the undertakings andthey would operate with all its vigour.16.In the peculiar facts of this case, in the wake ofundertakings submitted by the petitioner from time to time, in thelight of the legal position emanating from the judgment inJagdev Singh (supra) and considering the purport of Rule 134Aof the Maharashtra Civil Services (Pension) Rules, 1982, thedecision of the respondents to recover excess payment from the
Decision
*13* wp5268o19petitioner’s pensionary benefits, needs no interference on anycount. The petitioner’s challenge to the impugned decision ofrecovery after retirement is primarily based on the judgment inRafiq Masih (supra), however, we are of the firm view that inview of the undertakings submitted by the petitioner, thejudgment in the matter of Jagdev Singh (supra) would governthe case.17.In view of the above, the petition does not warrantany interference under Article 226 of the Constitution of Indiaand the same is liable to be dismissed. The Writ Petition isdismissed with no order as to costs.18.Rule is discharged. kps ( PRAFULLA S. KHUBALKAR, J.) ( MANGESH S. PATIL, J.)