High Court
Facts
1 WP / 14094 / 2021IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 14094 OF 2021WITHCIVIL APPLICATION NO. 7359 OF 2024 IN WP/14094/20211] Smt. Sunanada W/o Vilas Wahul Age – 56 years, Occu Auxiliary Nurse Midwife - Presently working at Subcenter Chakegaon, Primary Health Centre, Manoor, Tq. Vaijapur, under Zilla Parishad, Aurangabad, District Aurangabad2] Smt. Ginyan W/o Prakash Bhaskare, Age – 53 years, Occu Auxiliary Nurse Midwife - Presently working at Subcenter Kachner, Primary Health Centre, Kachner, Tq. Aurangabad under Zilla Parishad, Aurangabad, District Aurangabad Deceased through LRS2(1) Prakash S/o Datturam Bhaskare Age : 62 years, Occu : Nil2(2) Surekha D/o Prakash Bhaskare Age : 32 years, Occu : Nil2(3) Gangasagar D/o. Prakash Bhaskare Age : 29 years, Occu : Nil All residence of Kamal Nagar Housing Society, Bhavsingpura, Chhatrapati Sambhajinagar, Dist. Chhatrapati Sambhajinagar (Amendment carried out as per Court’s Order dated 11.10.2024)3] Smt. Lata D/o Arjun Bharti, Age – 52 years, Occu Auxiliary Nurse Midwife - Presently working at Primary Health Center, Kachner, Tq. Aurangabad, under Zilla Parishad, Aurangabad, District Aurangabad4] Smt. Baby D/o Ramchandra Mahapure, Age – 56 years, Occu – Lady Health Visitor (L.H.V.) Presently working at Primary Health Centre, Banoti, Tq. Soygaon, under Zilla Parishad, Aurangabad, District Aurangabad
Legal Reasoning
5 WP / 14094 / 20217.Heard both the sides. The issue is no longer res integra.The petitioners, admittedly, are class – III employees and would besquarely covered by clause 12(i) of Rafiq Masih (supra) which laysdown that no recoveries can be made in respect of the over-paymentsdue to wrong pay fixation in respect of class – III and class – IVemployees.8.The only debate could have been as to if Rafiq Masih(supra) applies only in respect of the recoveries made after thesuperannuation from the pension or the pensionary benefits. A carefulreading of the judgment would reveal that no such distinction was incontemplation of the Supreme Court which fact is evident from relianceplaced by it in the earlier decision in the case of Col. B.J. Akkara V.Government of India; (2006) 11 SCC 709. The following observationsfrom paragraph no. 11(ii) from Rafiq Masih (supra) are relevant :-11 (ii). Examining a similar proposition, this Court in Col. B.J.Akkara v. Government of India,(2006) 11 SCC 709 :(2006 AIRSCW 5252),observed as under:"28. Such relief, restraining back recovery of excess payment,is granted by courts not because of any right in theemployees, but in equity, in exercise of judicial discretion torelieve the employees from the hardship that will be caused ifrecovery is implemented. A government servant, particularlyone in the lower rungs of service would spend whateveremoluments he receives for the upkeep of his family. If hereceives an excess payment for a long period, he would spendit, genuinely believing that he is entitled to it. As anysubsequent action to recover the excess payment will causeundue hardship to him, relief is granted in that behalf. Butwhere the employee had knowledge that the paymentreceived was in excess of what was due or wrongly paid, or 6 WP / 14094 / 2021where the error is detected or corrected within a short time ofwrong payment, courts will not grant relief against recovery.The matter being in the realm of judicial discretion, courts mayon the facts and circumstances of any particular case refuse togrant such relief against recovery.” (Emphasis is ours)A perusal of the aforesaid observations made by this Court in Col.B.J. Akkara's case (supra) reveals a reiteration of the legalposition recorded in the earlier judgments rendered by this Court,in as much as, it was again affirmed, that the right to recoverwould be sustainable so long as the same was not iniquitous orarbitrary. In the observation extracted above, this Court alsorecorded, that recovery from employees in lower rung of service,would result in extreme hardship to them. The apparentexplanation for the aforesaid conclusion is, that employees inlower rung of service would spend their entire earnings in theupkeep and welfare of their family, and if such excess payment isallowed to be recovered from them, it would cause them far morehardship, than the reciprocal gains to the employer. We aretherefore satisfied in concluding, that such recovery fromemployees belonging to the lower rungs (i.e., Class-III and Class-IV - sometimes denoted as Group 'C' and Group 'D') of service,should not be subjected to the ordeal of any recovery, eventhough they were beneficiaries of receiving higher emoluments,than were due to them. Such recovery would be iniquitous andarbitrary and therefore would also breach the mandate containedin Article 14 of the Constitution of India.9.In the light of such observations, even if some of thepetitioners are still in the employment, nothing can be recovered fromthem on the ground of over-payment in the light of decision in thematter of Rafiq Masih (supra). 10.Independently, in respect of the selfsame zilla parishad, inthe matters of Smt. Jayshree Trimbak Takalkar and Smt. ShobhaRamesh Patil (supra), the selfsame communication dated 27.09.2013has been quashed and set aside, which was also coming under the
Arguments
2 WP / 14094 / 20215] Smt. Satyabhama D/o Dashrath Chavan Age – 57 years, Occu Auxiliary Nurse Midwife - Presently working at Subcenter Bazarthan, Primary Health Centre, Gadepimpalgaon, Tq. Vaijapur, under Zilla Parishad, Aurangabad, District Aurangabad6] Smt. Asha W/o Raosaheb Borade, Age – 57 years, Occu – Lady Health Visitor, Primary Health Centre, Aland, Tq. Phulambri under Zilla Parishad, Aurangabad, District Aurangabad7] Smt. Dwarka Narayan Payghan, Age – 55 years, Occu – Lady Health Visitor, Primary Health Centre, Manoor, Tq. Vaijapur, under Zilla Parishad, Aurangabad, District Aurangabad8] Smt. Rekha Dnyandeo Sarode, Age – 62 years, Occu Auxiliary Nurse Midwife - P.H.C. Gadhepimpalgaon, Tq. Vaijapur (now retired) under Zilla Parishad, Aurangabad, District Aurangabad9] Smt. Pushpa Chagansing Rajput, Age – 50 years, Occu Auxiliary Nurse Midwife - Presently working at Subcenter Relegaon, Primary Health Centre, Jategaon, Tq. Phulambri, under Zilla Parishad, Aurangabad, District Aurangabad .. Petitioners Versus1] The State of Maharashtra, Through the Secretary, Ministry of Rural Development and Water Conservation Department, Mantralaya, Mumbai – 322] The Chief Executive Officer, Zilla Parishad, Aurangabad District Aurangabad3] The District Health Officer, Zilla Parishad, Aurangabad, District Aurangabad.. Respondents...Advocate for the petitioners : Mr. J.S. DeshmukhAGP for the respondent no. 1 : Ms. P.J. BharadAdvocate for respondents no. 2 and 3 : Mr. U.B. Bondar... 3 WP / 14094 / 2021 CORAM : MANGESH S. PATIL & PRAFULLA S. KHUBALKAR, JJ.DATE : 28 FEBRUARY 2025ORDER (MANGESH S. PATIL, J.) :Heard. Rule. It is made returnable forthwith. LearnedAGP waives service for respondent no. 1. Mr. U.B. Bondar waivesservice for respondents no. 2 and 3. 2.At the joint request of the parties, the matter is heard finallyat the stage of admission. 3.The petitioners were appointed as Auxiliary Nurse Midwife(ANM) in the establishment of respondents no. 2 and 3 i.e. the ChiefExecutive Officer of the Zilla Parishad, Aurangabad and the DistrictHealth Officer therein. Some of them were promoted and even workingas Lady Health Visitor. They were granted time bound promotion underthe schemes of the State government and were re-fixed at a higherscale. Under the ground of erroneous pay fixation, respondents no. 2and 3 have started recoveries. Petitioners claim to be class – IIIemployees. Petitioner no. 2 has died after filing of the petition and hislegal representatives have been brought on record. Some of thepetitioners still continue to be in the employment whereas the reststand retired. 4 WP / 14094 / 20214.By resorting to the law laid down in the matter of State ofPunjab and others V. Rafiq Masih (WhiteWasher) etc; AIR 2015 SC696, they are challenging the circular / communication dated27.09.2013 issued by respondent no. 3 – District Health Officer (DHO)directing re-fixation of petitioners’ pays and further directing therecoveries of the over-payment.5.The respondents have not filed any reply.6.By moving civil application no. 7359 of 2024 and byreferring to several decisions of this Court including in the case ofsimilarly placed ANMs and Lady Health Visitors, the petitioners pray forequal treatment and pray for allowing the writ petition. They haveannexed following decisions :(I) Smt. Jayshree Trimbak Takalkar Vs. The Chief Executive Officerand another (writ petition no. 4616 of 2016) With writ petition no. 4624of 2016 (Smt. Shobha Ramesh Patil Vs. The Chief Executive Officerand another) – common decision dated 22.12.2017(ii) Pramila Vasudeorao Kumbhare and others Vs. The State ofMaharashtra and others (writ petition no. 12198 of 2015 decision dated01.03.2018)(iii) Mandikini Gokuldas Thanage and others Vs. The State ofMaharashtra and others (writ petition no. 1689 of 2014 – decision dated08.08.2018)(iv) Smt. Rama W/o Purushottam Wanjari Vs. The State of Maharashtraand others (writ petition no. 10252 of 2018 decision dated 07.09.2018)(iv) Leela Gopalrao Sonawane and another Vs. The State ofMaharashtra and others (civil application no. 7809 of 2023 in writpetition no. 10522 of 2019 and writ petition no. 10522 of 2019 decisiondated 07.07.2023)
Decision
7 WP / 14094 / 2021same zilla parishad, Aurangabad. Therefore, even on the ground ofparity, the petitioners are entitled to have the same relief.11.The writ petition is allowed.12.The impugned communication / order dated 27.09.2013issued by respondent no. 3 is quashed and set aside.13.No recoveries shall be made by resorting to it andwherever those have been already made from any of the petitioners,those shall be refunded within eight weeks.14.It is made clear that this order shall not be interpreted tomean that respondents no. 2 and 3 are prevented from undertaking re-pay fixation. 15.Rule is made absolute in above terms.16.Pending civil application is disposed of. [ PRAFULLA S. KHUBALKAR ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/