RAVINDRA v. GHUGE &Y. G. KHOBRAGADE, JJ.DATE
Legal Reasoning
( 1 ) wp 6763.23IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 6763 OF 2023 Khan Almas Zohara d/oGulam Ahmed Khan,Age: 58 Years, Occ. Retired, R/o. H.No.1-13-66, Kabadipura,Opp. Teen Darga, Budhi Lane,Aurangabad. ...PETITIONERV/s.1. The State of MaharashtraThrough Secretary Municipal Corporation, Mantralaya, Mumbai – 400 032.2.The Commissioner,Municipal Corporation Aurangabad.3.The Education Officer,Municipal Corporation Aurangabad.... RESPONDENTSMrs. A.N. Ansari, Advocate for the PetitionerMr. P.K. Lakhotiya, AGP for Respondent-State Mr. A.R. Vaidya, Advocate for Respondent Nos.2 & 3…CORAM : RAVINDRA V. GHUGE &Y. G. KHOBRAGADE, JJ.DATE :9th February, 2024JUDGMENT (Per: Y. G. Khobragade, J.) :-1.Rule. Rule made returnable forthwith and heard finally with theconsent of the parties. ( 2 ) wp 6763.232.By the present petition under Article 226 of the Constitution ofIndia, the Petitioner has put-forth prayer clause-B, C, C1 and D as under:“B) To quash and set aside the order letter No.MCA/Education/2022/1016 dated 19.10.2022 issued by EducationOfficer Municipal Corporation Aurangabad, by issuing anyappropriate writ order or direction as the case may be.C)To quash and set aside the office orderNo/MCA/Education/2023/224 dated 27.3.2023 issued by the DeputyCommissioner, Municipal Corporation Aurangabad, i.e. Respondentno. 2 by issuing any appropriate writ order or direction as the casemay be.C-1)To quash and set aside the order dated 23.10.2023 passed bythe Municipal Commissioner, Aurangabad at Exhibit "R-2" page 50,by issuing any appropriate writ order or direction as the case may be.D)It may be held that Petitioner is not liable for any recoveryfrom her retirement benefits on both the counts of not passing HindiMarathi examination and MSCIT examination, by issuing anyappropriate writ order or direction as the case may be.”3.The learned advocate Mrs. Ansari appearing for the Petitionersubmits that on 29.06.1998 the Petitioner was appointed as an AssistantPrimary Teacher under the reserved category of O.B.C. with the RespondentNos. 2 and 3. At the time of appointment, the Petitioner was having requirededucational qualification of S. S. C., D.Ed and after rendering approximately 25years of service, the Petitioner was superannuated on 31.01.2023, howeverprior to her retirement on 19.10.2022, the Petitioner was served withimpugned order dated 19.10.2022, whereby recovery of Rs.4,14,513/- wasdirected against her on account of excess amount being paid to her under ( 3 ) wp 6763.23wrongful revised pay scale/erroneous revised pay scale on the basis ofacquiring certificate of MS-CIT. Said pay scale was revised more than a decadeago. The Petitioner apprehended about not getting retiral and pensionarybenefits. Therefore, the Petitioner submitted letter dated 09.11.2022contending that she may be paid retiral benefits i.e. gratuity, after deductingthe recovery of Rs.4,14,513/- from retiral benefits.4.According to the Petitioner, she was served with letter dated27.03.2023 issued by the Deputy Commissioner of Municipal Corporationshowing deduction from salary from the year 1998 to 2010 for not passingMarathi – Hindi examination, but on 16.06.2023 the Petitioner submitted herreply contending that exemption was already granted to her for appearing inMarathi – Hindi examination vide letter dated 18.01.2022 and she alreadypassed MS-CIT examination during her service period. Therefore, the recoverydirected against her under impugned order dated 19.10.2022 and 27.03.2023is illegal and bad in law. Further it was contended that on 23.03.2023 thisCourt passed the judgment in Writ Petition No.3320/2023 and other connectedmatters (Shaikh Amir Shaikh Kadar V/s. The State of Maharashtra through itsSecretary and Ors.) wherein, the Division Bench of this Court (Coram:Ravindra V. Ghuge and Sanjay A. Deshmukh, JJ.) considered the law laid downin High Court of Punjab and Haryana V/s. Jagdev Singh; 2016 AIR (SCW) ( 4 ) wp 6763.233523, judgment dated 01.09.2021 passed by the Co-ordinate Bench of thisCourt in Writ Petition No.13262/2018 (Ananda Vikram Baviskar V/s. State ofMaharashtra and Ors.) and Syed Abdul Qadir V/s. State of Bihar and Ors.;2009 (3) SCC 475, wherein it has been held that if the employee did not play afraud or was personally not involved in wrongful revision of her pay scale ororchestrating wrongful pay revision by manipulating the record, the recovery ofexcess amount of payment made to the employee shall not be recovered fromthe Class III and IV employees.5.Per contra, the learned advocate for Respondent Nos. 2 and 3vehemently canvassed that while fixation of pay scale, the Petitioner submittedher undertaking on 24.01.2000 thereby she has undertaken that if in case anyexcess payment found to have been made due to incorrect fixation of pay scaleor any excess amount detected in light of any discrepancy, then the suchamount shall be refunded. However, it was found that the Petitioner did passthe MS-CIT and Hindi-Marathi language.6.According to Respondent Nos. 2 and 3, on 17.08.2023, theRespondent No.1-State Government issued GR for securing undertaking fromthe employees for returning of excess amount of payment, if made to them dueto wrongful fixation. In pursuance of said GR, the Petitioner submitted herundertaking for recovery of excess payment. The Petitioner was not entitled for ( 5 ) wp 6763.23higher pay scale and she was never exempted from appearing in Marathi –Hindi language because vide order dated 23.10.2023 the exemption which wasgranted to her on 18.01.2022 from appearing in Marathi-Hindi language, wasrecalled. Therefore, she is not entitled for any benefits as prayed. Henceprayed for dismissal of the petition.7.The grievance of the Petitioner is that recovery has been directedunder communication dated 19.10.2022 to the tune of Rs. 4,14,513/- towardexcess payment of increments made to her under 5th and 6th Pay Commissiondue to not getting exemption from passing Marathi examination as well as notacquiring qualification of MS-CIT. The Petitioner contended that, shesuperannuated on 31.01.2023 and on verge of retirement, recovery has beendirected, which is illegal and bad in law.8.Needless to say that, the Petitioner was granted incrementalbenefit and later on it was revealed that the Petitioner did not havequalification of MS-CIT. However, subsequently the Petitioner acquired MS-CITqualification in the month of September-2021. But no undertaking wasacquired from the Petitioner, for more than a decade, when her pay scale wasfixed. ( 6 ) wp 6763.239. We have referred to the law laid down by the Hon'ble SupremeCourt in High Court of Punjab and Haryana and others vs. Jagdev Singh(supra). However, in the case in hand on perusal of record it reveals that noundertaking was taken from the Petitioner when the pay scale was revised. Asheld by this Court in Writ Petition No.13262/2018 (Ananda Vikram BaviskarV/s. State of Maharashtra and Ors.), an undertaking has to be taken from thecandidate on the day when the revised pay scale is made applicable to her andthe payment commences. At the stroke of superannuation of the said employee,asking her to tender an undertaking, practically amounts to an afterthought onthe part of the employer and a mode of compelling the candidate to execute anundertaking since, she is apprehensive that her retiral benefits would not bereleased until such undertaking is executed. Such an undertaking will not havethe same sanctity of an undertaking executed when the payment of revised payscale had commenced. We, therefore, respectfully conclude that the view takenin High Court of Punjab and Haryana and others vs. Jagdev Singh (supra),would not be applicable to the case of the Petitioner.10.Taking into account that the Petitioner was not involved in anymischief, fraud or deceit in orchestrating her wrongful pay revision, the lawlaid down by the Hon'ble Supreme Court in Syed Abdul Qadir (supra) and ( 7 ) wp 6763.23State of Punjab and other vs. Rafiq Masih (White Washer) etc. (2015) 4 SCC334 : AIR 2015 SC 696, would apply to this case.11.In the present case, the Respondent No. 3 has already deductedamount under communication dated 27.03.2023. As per communication dated19.10.2022, the Petitioner was to retire w.e.f. 31.01.2023, however thePetitioner did MS-CIT in the month of September-2021. Therefore the recoveryof amount of Rs.4,14,513/- was directed on account of wrongful/erroneousfixation of revised pay scale.12. Further, on 27.03.2023 the Respondent No. 2 issued acommunication and directed deduction from salary of the Petitioner from theyear 1998 to 2010 on account of Marathi-Hindi examination. It is apparent onface of record that the Petitioner was exempted from appearing in Marathi –Hindi examination vide communication dated 18.11.2022, however, saidexemption was revoked by the Respondent No. 2 on 23.10.2023 without anyshow cause notice to the Petitioner. Admittedly, the Petitioner is Class IIIemployee. Though excess payment of salary due to wrong fixation is notpermissible, the Petitioner had not played any fraud and she was notpersonally involved in wrongful revision of her pay scale or manipulation ofrecord. The undertaking which has been furnished by the Petitioner on24.01.2000 does not appear by free will of the Petitioner. Therefore,
Decision
( 8 ) wp 6763.23considering the law laid down by the Hon’ble Supreme Court in the case ofHigh Court of Punjab and Haryana V/s. Jagdev Singh, Syed Abdul Qadir andAnanda Vikram Baviskar cited (supra), directing the recovery against thePetitioner due to wrongful / erroneous fixation is not permissible. Nonetheless,the Petitioner passed MS-CIT in the month of September – 2021 and said fact isnot denied by the Respondents, so also, the Petitioner was already exemptedfrom appearing in Marathi – Hindi examination vide communication dated18.01.2022, which has been subsequently revoked by the Respondent No.2without according opportunity of being heard. Therefore, said revocation ofexemption from appearing in Marathi-Hindi examination is not justifiable.13.In view of above discussion and considering the law laid down inabove cited cases, the Writ Petition is allowed and the impugned order dated19.10.2022 and 23.10.2023 are hereby quashed and set aside. The amount dueand payable to the Petitioner after her superannuation, shall be paid to thePetitioner within a period of 90 days with interest @ 6% per annum. 14.Rule is made absolute in the above terms. No order as to costs. [Y. G. KHOBRAGADE, J.][RAVINDRA V. GHUGE, J.]mub