RAVINDRA v. GHUGE ANDY. G. KHOBRAGADE, JJ.RESERVED ON
Legal Reasoning
WP-6422-2019.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 6422 OF 201901.Meera Narayan UnawaneAge: 50 years, Occu: Service,R/o. Zilla Parishad Health Department, Aurangabad02.Asha w/o Punaji PimpaleAge: 55 years, Occu: Service,R/o: Andhari, Tq: Sillod,Dist: Aurangabad 03.Sarita w/o Shravan SangoleAge: 54 years, Occu: Service,R/o: Amthana, Tq: Sillod,Dist: Aurangabad04.Kusum w/o Bhunajgrao KundaleAge: 50 years, Occu: Service,R/o: Lasur Station, Tq: Gangapur,Dist: Aurangabad05.Keval Arjunrao KambleAge: 50 years, Occu: Service,R/o: Warud Kazi, Tq & Dist: Aurangabad06.Shobha Laxman MolkeAge: 54 years, Occu: Service,R/o: Dhakephal, Tq. Paithan,Dist: Aurangabad07.Nirmal Dashrath KhandareAge: 53 years, Occu: Service,R/o: Warud Kazi, Tq & Dist: Aurangabad08.Meena w/o Sakhram GajbhareAge: 50 years, Occu: Service,R/o: Andhari, Tq: Sillod, Dist: Aurangabad 1 of 15
Legal Reasoning
(( 2 ))WP-6422-201909.Satyabhama w/o Ravindra Shinde Age: 52 years, Occu: Service,R/o: Daulatabad, Tq & Dist: Aurangabad 10.Ranjana w/o Jagdish Rathod Age: 52 years, Occu: Service,R/o: Amthana, Tq: Sillod, Dist: Aurangabad11.Usha w/o Laxman ThakreAge: 53 years, Occu: Service,R/o: Banoti, Tq: Soyegaon,Dist: Aurangabad12.Yamuna Kunal GavitAge: 50 years, Occu: Service,R/o: Bhendala, Tq: Gangapur,Dist: Aurangabad… PETITIONERS VERSUS01.The State of MaharashtraThrough its Secretary,Health Department, Mantralaya, Mumbai 02.The Secretary,Rural Development Department,Mantralaya, Mumbai03.The Zilla Parishad, Aurangabad Through its Chief Executive Officer 04.The District Health Officer,Zilla Parishad, Aurangabad… RESPONDENTS .…Mr. V. C. Patil (Ashtekar), Advocate for Petitioners Mr. S. B. Narwade, AGP for Respondent Nos. 1 and 2 Mr. S. R. Dheple, Advocate for Respondent Nos. 3 and 4 .… (( 3 ))WP-6422-2019CORAM: RAVINDRA V. GHUGE ANDY. G. KHOBRAGADE, JJ.RESERVED ON :24.01.2024PRONOUNCED ON :07.02.2024JUDGMENT (Per : Y. G. Khobragade, J.) :- 1.Rule. Rule made returnable forthwith. Heard finally withthe consent of the parties.2.By the present Petition under Article 226 of the Constitutionof India, the Petitioners have put forth prayer clauses “B” and “C” asunder:-“(B)By issuing appropriate writ, order or directions in the likenature, the impugned letters dated 27.09.2013, 09.01.2014,09.04.2014 as well as letter dated 03.10.2015 issued by theRespondents no.3 and 4 may kindly be quashed and set aside.(C) By issuing appropriate writ, order or directions, theRespondents no.3 and 4 may pleased be prohibited from recoveryof excess salary amounts in view of the law declared by theHon’ble Apex Court in case State of Punjab and others – Vs –Rafiq.”3.By an order dated 06.06.2019, this Court issued notice tothe Respondents and granted interim relief thereby restraining theRespondents from effecting recovery pursuant to the impugnedcommunications dated 27.09.2013, 09.01.2014, 09.04.2014 and03.10.2015, issued by Respondent Nos. 3 and 4. (( 4 ))WP-6422-20194.We have considered the strenuous submissions of thelearned Counsel for the respective sides. We have also gone through thePetition paper-book with the assistance of the learned Counsel.5.The Petitioners are/were working as Auxiliary NurseMidwife (ANM) and Lady Health Visitor (LHV) with Respondent Nos. 3and 4 at the various Primary Health Centers established in AurangabadDistrict. Petitioner Nos. 1, 2, 3, 6 and 9 are superannuated and otherPetitioner Nos. 4, 5 7, 8, 10 to 12 are still in service. They are/werepermanent Class-III employees. They contended that, the similarlysituated employees i.e. Auxiliary Nurse Midwife (ANM) and Lady HealthVisitors (LHV) were entitled to receive higher pay scale as per theGovernment Resolution dated 21.09.1993. Accordingly, the Petitionerswere placed in the pay scale of Rs. 5000 - 8000 as per 5th paycommission and Rs.9300 - 34800 plus grade pay of Rs.4200 under the6th pay commission. However, Respondent No. 3 Zilla Parishadcontended that, the Petitioners were entitled for Rs.4500 - 7000 as per5th pay commission and Rs.5200 – 20200 with grade pay of Rs.2800 asper 6th pay commission. Accordingly, the Petitioners have received theirsalaries. However, without making any inquiry and without providingany opportunity of hearing, the Respondent No. 4 issued communicationdated 27.09.2013 and thereby directed the Taluka Health Officer for (( 5 ))WP-6422-2019re-fixation of pay scale of the Petitioners as well as effecting recoveryagainst them for excess payment made to them. 6.Further it was canvassed on behalf of the Petitioners, thatthe Petitioner Nos. 1, 2, 3, 6 and 9 are superannuated on different datesand other Petitioner Nos. 4, 5 7, 8, 10 to 12 are still in service. On26.02.2019, the State Government issued a Government notification andresolved as under:-“3- ;klanHkkZr Li"V dj.;kr ;srs dh] izLrqr izdj.kkr ek- U;k;ky;kus olqyhckcrizfrca/kkRed vkns’k fnys vlys rjh] ‘kklu ifji=d fn- 28 tqyS 2014 uqlkj] pqdhP;kosru fuf’prheqGs ts vfrfjDr jDdesps iznku >kysys vkgs] rh pwdhph osrufuf’prhnq:Lr dj.;kckcr ek- U;k;ky;kus izfrca/k dsysyk ukgh gh ckc fopkjkr ?ksrk ;kizdj.kkr [kkyhyizek.ks vkns’k ns.;kr ;sr vkgsr-¼1½ v½ lsokfuo`Rr oxZ 3 o 4 P;k deZpkÚ;kauk dj.;kr vkysY;k vfriznkukph olwyh dj.;kr ;sow u;s-vk½fuo`RrhP;k macjB~;koj vl.kkÚ;k oxZ&3 o oxZ&4 P;k deZpkÚ;kadMwu vfriznkukph olwyh dj.;kr ;sow u;s- b½ikp o”kkZis{kk vf/kd dkyko/khlkBh vfriznku dj.;kr vkys vlY;kl olwyh dj.;kr ;sow u;s-bZ½pwdhps ykHk ns.;kr vkys vlY;kl R;k pwdhph nq:Lrh dj.;kr ;koh- m½fn- 28 twyS 2014 ps ifji=d gs R;k ifji=dkr lanHkZ uewn dsysY;k o ifji=dkaiwohZ fuxZfer dsysY;k ‘kklu fu.kZ;@ ifji=d@i=s ;k lanHkkZr usedh dk; dk;Zokgh djko;kph vkgs ;kckcr ekxZn’kZu vkgs- ¼2½ rlsp lsokfuo`Rr deZpkÚ;kaP;k lanHkkZr pwdhP;k i/nrhus osru fuf’prh dsyh vlY;kl rkRdkG fofgr i/nrhus R;k osru fuf’prhe/;s foghr dk;Zi/nrhuqlkj lq/kkj.kk d:u uO;kus osru fuf’prh dj.;kr ;koh- 4-rlsp mijksDr ^v rs b* e/;s u cl.kkÚ;k deZpkÚ;kauk vfrfjDr osru iznku>kys vlY;kl R;kph olqyh iq<hy 1 o”kkZr leizek.kkr dj.;kr ;koh- rlsp T;kvf/kdkjh@deZpkÚ;kP;k pwdhP;k dk;ZokgheqGs lacaf/krkauk vfriznku >kys vkgs R;kvf/kdkjh@deZpkÚ;kaoj f’kLrHkaxkph dkjokbZ dj.;kr ;koh-Þ (( 6 ))WP-6422-20197.However, the Respondents have directed recovery of excesspayment on account of wrong fixation of pay scale against the Class-IIIemployees after their retirement and though, other petitioners who arein service, are not responsible for wrong fixation of their pay scale.Therefore, recovery of excess payment is not permissible against theClass-III employees. 8.To buttress these submissions, the learned Counselappearing for the Petitioners places reliance on the following :- i.State of Punjab and others Vs. Rafiq Masih (White Washer) and others – (2015) 4 SCC 334;ii. Judgment Dt. 22.12.2017 passed in WP No.4616 of 2016 - Smt. Jayshree Trimbak Takalkar Vs. The Chief Executive Officer, Zilla Parishad, Aurangabad and another;iii. Judgment Dt. 15.11.2021 passed in WP No.7379 of 2020 - Smt. Pramila Manohar Pawar Vs. The State of Maharashtra and others and iv. Ananda Vikram Baviskar Vs. State of Maharashtra andothers – 2022(2) Mh.L.J. 698.9.Dr. Gopal Madhavrao Kudlikar, the Assistant District HealthOfficer, Zilla Parishad, Aurangabad, has filed an affidavit-in-reply onbehalf of Respondent Nos. 3 and 4 and admitted that, the Petitionersare/were their employees. According to the Respondents, while in (( 7 ))WP-6422-2019service, the Petitioners have furnished written undertaking whilefixation of their salary that, “in future, any excess payment is made tothem and may be found to have been made, as a result of incorrectfixation of their pay scale or any excess payment detected in the light ofdiscrepancies, notice subsequently would be refunded by them to theGovernment either by adjustment against future payment due to themor otherwise”. Since, the Petitioners promised for repayment of anyexcess payment due to wrong pay fixation, therefore, the petitioner arenot entitled for any relief. 10.The learned counsel for Respondent nos. 3 & 4 canvassedthat, as per Rule 134 of the Maharashtra Civil Services (Pension) Rules,1982, the employer has a right to recover and adjust excess amount paidto it’s employees while in service. Since, some of the Petitioners aregovernment servants who have retired and those who are in service arefound to have been paid excess amount due to wrong pay fixation andthe petitioners agreed for refund of excess payment, therefore, directingsaid recovery is legal.11.To buttress the submissions, the learned Counsel for theRespondents relied on the case of High Court of Punjab and Haryanaand others Vs. Jagdev Singh – 2016 A.I.R. (SCW) 3523, (( 8 ))WP-6422-201912.Needless to state, the grievance of the Petitioners are that,they were receiving higher pay scale on the post of “Arogya Sevika”, inpursuance to Government Resolution dated 21.09.1993 issued by thePublic Health Department, Government of Maharashtra. Under the 5thpay commission, the petitioner were placed in the pay scale of Rs.5000 –8000. Under the 6th pay commission, they were being paid the pay scaleof Rs. 9300 – 34800 plus grade pay of Rs.4200.13.According to the Respondents, while in service, each of thePetitioners have executed undertakings at the time of their fixation ofpay scale. The undertaking reads as under:-“Hereby undertaking that any excess payment that may befound to have been made as a result of incorrect fixation of pay orany excess payment detected in the light of discrepancies noticedsubsequently will be refunded by me to the Government either byadjustment against future payment due to me or otherwise.”14.The Petitioners have not denied that, they have notfurnished undertakings agreeing to refund the excess amount, if foundto have been paid to them. It is not the case of petitioners that, theRespondents 3 & 4 obtained their undertaking forcibly or underinfluence or coercion. 15.Since, the Petitioners while furnishing undertakings, agreedthat any excess payments that may be found to have been made due to (( 9 ))WP-6422-2019incorrect fixation of their pay or excess payments have been detected inthe light of discrepancies, they would return the said amounts to theGovernment either by adjustment against the future payments due tothem, or otherwise. Therefore, considering the principle of law ofestoppel, the petitioners having no voice to resist the recovery of excesspayments, which they have received due to wrong fixation of pay. 16.On perusal of the documents produced by the Respondentsalong with affidavit-in-reply, it appears that the Petitioners havefurnished their undertaking as under:-Sr.No.Name of the PetitionerDate of Undertaking1.Meera Narayan Unawane11.02.19992.Asha w/o Punaji Pimpale15.05.19993.Sarita w/o Shravan Sangole10.02.19994.Kusum w/o Bhunajgrao Kundale02.05.19995.Keval Arjunrao Kamble15.04.20096.Shobha Laxman Molke08.03.20197.Nirmal Dashrath Khandare30.11.20138.Meena w/o Sakhram Gajbhare30.05.20099.Satyabhama w/o Ravindra Shinde 03.02.201910.Ranjana w/o Jagdish Rathod 200911.Usha w/o Laxman Thakre 02.05.199912.Yamuna w/o Kunal Gavit05.02.199917.The undertakings tendered by the Petitioners areundisputedly at the time of the pay scale fixation and commencement of (( 10 ))WP-6422-2019the payments under the fifth pay commission. Therefore, it cannot betermed that the Petitioners’ undertakings were obtained at the verge ofthe retirement of Petitioner Nos. 1, 2, 3, 6 and 9, who retired on31.05.2023, 30.06.2022, 31.07.2023, 28.02.2022 and 30.09.2020,respectively.18.Needless to say that, in case of Rafiq Masih (supra), theHon’ble Apex Court held that, the benefit of non-recovery cannot beextended to employees merely because they was not responsible for themistake committed by employer, or were not guilty of furnishing anyfactually incorrect information, or fraud or misrepresentation. However,the recoveries are held to be impermissible in the followingcircumstances:-“(i) Recovery from employees belonging to Class-III and Class-IVservice (or Group 'C' and Group 'D' service).(ii) Recovery from retired employees, or employees who are dueto retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment hasbeen made for a period in excess of five years, before theorder of recovery is issued. (iv) Recovery in cases where an employee has wrongfully beenrequired to discharge duties of a higher post, and has beenpaid accordingly, even though he should have rightfully beenrequired 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 (( 11 ))WP-6422-2019iniquitous or harsh or arbitrary to such an extent, as wouldfar outweigh the equitable balance of the employer's right torecover.” 19.In High Court of Punjab and Haryana and others vs JagdevSingh, (supra), the Hon’ble Supreme Court observed in Para Nos. 8 and9, as under:"8. The order of the High Court has been challenged in theseproceedings. From the record of the proceedings, it is evident thatwhen the Respondent opted for the revised pay scale, he furnishedan undertaking to the effect that he would be liable to refund anyexcess payment made to him. In the counter affidavit which has beenfiled by the Respondent in these proceedings, this position has beenspecifically admitted. Subsequently, when the rules were revised andnotified on 7 May 2003 it was found that a payment in excess had beenmade to the Respondent. On 18 February, 2004, the excess paymentwas sought to be recovered in terms of the undertaking.9.The submission of the Respondent, which found favour with theHigh Court, was that a payment which has been made in excess cannotbe recovered from an employee who has retired from the service of thestate. This, in our view, will have no application to a situation such asthe present where an undertaking was specifically furnished by theofficer at the time when his pay was initially revised accepting that anypayment found to have been made in excess would be liable to beadjusted. While opting for the benefit of the revised pay scale, theRespondent was clearly on notice of the fact that a future re-fixation orrevision may warrant an adjustment of the excess payment, if any,made. 20.In the case of Ananda Vikram Baviskar, (supra), this Courtconcluded in Para Nos. 7 to 10 as under:-“7.Our Courts are dealing with hundreds of such cases.On each day, we have at least one such case before us.Considering the law laid down in Rafiq Masih (Supra), our Courts (( 12 ))WP-6422-2019have been quashing notices for recovery on the ground that suchnotices have been issued long after the retirement of an employeeand especially in the cases of Class-IV employees, who would findit difficult to shell out large sums of money towardsrecovery/payment. Consequentially, we have pardoned severalClass-IV employees and protected them as against recovery. 8.We are conscious of the fact that the Hon’ble ApexCourt has delivered a judgment in Jagdev Singh (Supra) afternoticing that an undertaking was issued by an officer vide which,he had agreed to refund/repay the excess amount.9.This Court at the Nagpur Bench has dealt with WritPetition No.4919 of 2018 filed by the State of Maharashtra andOthers Vs. Sureshchandra S/o. Dharamchand Jain and Others forchallenging the judgment of the learned MaharashtraAdministrative Tribunal, Nagpur Bench dated 18.04.2017. In thesaid matter, the learned Tribunal had relied on Rafiq Masih(Supra) and had granted the relief to the appellant who was aClass-III employee. The learned Division Bench has observed inparagraph nos.4 to 7 as under:4. The argument submitted in defence is fallacious. Anundertaking has the effect of solemnity in law and ifargument is to be accepted which has been submitted onbehalf of the respondents, the majesty of law would belowered and there would be a travesty of justice.Besides, the undertaking is about wrong pay fixation andconsequent excess payment. The undertaking is notabout grant of higher pay on the basis of right payfixation. Had it been an undertaking as regards the laterdimension of the case, one could have perhaps said thatthe undertaking was only a formality. When theundertaking takes into account the contingency of thewrongful pay fixation, the undertaking has to be said tohave been given intentionally and with a view to beacted upon, in case the contingency did really arrive.5. So, what we have before us is an undertaking givenconsciously and intentionally by the respondents and the (( 13 ))WP-6422-2019respondents would have to be held bound by thisundertaking. That means in the present case, no equitywhatsoever has been created in favour of therespondents while making the excess payment and assuch there is no question of any hardship visiting therespondents.6. The reason weighing with the Hon'ble Apex Courtimposing prohibition against recovery of excess paymentin Rafiq Masih (supra) was of hardship resulting fromcreation of awkward situation because of the mistakecommitted by the employer and there being no faultwhatsoever on the part of the employee. In order tobalance the equities created in such a situation, theHon'ble Apex Court in Rafiq Masih, gave the directionthat so far as Class-III and IV employees were concerned,and who were found to be not having very soundeconomic footing, would have to be exempted from theconsequence of recovery of the excess payment, ifconsiderable period of time has passed by in between.But, as stated earlier, even in case of such an employee,there would be no hardship for something which hasbeen accepted by him consciously with an understandingthat it could be taken away at any point of time, ifmistake is detected. Clarifying the law on the subject, theHon'ble Apex Court, in its recent judgment rendered inthe case of High Court of Punjab and Haryana andothers vs. Jagdev Singh reported in 2016 AIR (SCW)3523, in paragraph 11 it observed thus :“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 the (( 14 ))WP-6422-2019revised pay scale. He is bound by theundertaking.” 7. The fact situation of the present case is squarelycovered by the above referred observations. These arethe crucial aspects of the present case and theMaharashtra Administrative Tribunal, Nagpur Bench,Nagpur appears to have missed out on them and theresult is of passing of an order which cannot besustained in the eye of law.”10.We have a similar case in hand. The petitioner hasspecifically given an undertaking prior to his retirement that if hehas received any amount in excess to what he was legitimatelyentitled to, the said amount would be repaid or can be recovered.Such undertaking, if ignored, would be reduced to the value of awaste paper. An undertaking has it’s own meaning and effect. Ifan undertaking is not to bind a person issuing it, there would beno sanctity to an undertaking. We cannot accept such anargument canvassed by an employee that an undertaking is amere formality and should be ignored, lest, we ourselves wouldbe party to neutralising the value of an undertaking.”[EMPHASIS SUPPLIED]21.In the case in hand, it clearly appears that, while grantingtime bound promotion, pay scale of the present Petitioners were wronglyfixed under the 5th pay commission in the pay scale of Rs.5200 – 20200plus grade pay of Rs.2800, instead of Rs.4500-7000. As per the 6th paycommission, instead of Rs.5000 – 8000, the Petitioners were wronglyfixed in the pay of Rs.9300 – 34800 plus Grade pay of Rs.4200. TheRespondents subsequently noticed the wrong pay fixation of thePetitioners. Therefore, recovery of excess payment against them was
Decision
(( 15 ))WP-6422-2019directed. Prior to fixation of the pay scales, all the Petitioners hadalready furnished written undertakings with the Respondents andagreed for refund of any excess payment due to wrong pay fixation,either from their salary or from their retiral benefits.22. Therefore, taking into consideration these clear facts ofthis case as well the law laid down in the cases of Jagdev Singh (supra),Ananda Vikram Baviskar (supra) and Writ Petition No. 4919 of 2018,(supra), these Petitioners are not entitled to any relief as claimed.23.In view of the above discussion, this Petition is devoid ofany merit and is dismissed. Rule is discharged. [ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]SMS