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Judgment
Rule. Rule made returnable forthwith and
heard finally with the consent of the learned
counsel appearing for the parties.
This Petition under Article 226 of the
Constitution of India, is filed with following
prayers:
"(a) By issuing writ of mandamus or any
other writ, order or directions in the
like nature, this Hon''ble Court may be
pleased to direct the respondents no.2
to 5 to refund the amount of
Rs.2,24,312/- which is recovered from
the Petitioner within stipulated period
and for that purpose issue necessary
orders.
(b) By issuing writ of mandamus or any
other writ, order or directions in the
like nature, this Hon''ble Court may be
pleased to direct the respondent nos.2
to 5 to grant leave encashment for 150
days to the petitioner and for that
purpose issue necessary orders."
It is contended by the Petitioner that he
had worked with Respondent No.5 on the post of
Assistant Teacher and he came to be retired due to
superannuation, on 28th February, 2013. At the
time of preparation of pension proposal of the
Petitioner, the authorities found that some amount
is paid in excess to the Petitioner due to wrong
pay fixation at the hands of the respondent
authorities and therefore, the entry in respect of
making recovery of Rs.1,46,034/- was taken in the
service book of the Petitioner. It is further
contended that Respondent No.5 thereafter issued a
letter dated 23rd April, 2013 to the Accounts
Officer, Aurangabad thereby stating that though
the amount of recovery from the Petitioner is
shown as Rs.1,46,034/-, it should be Rs.2,24,312/-
and requested to replace the amount of recovery by
Rs.2,24,312/-.
It is further contended by the Petitioner
that though he had prayed for encashment of his
150 leaves but the Respondent authorities had
granted leave encashment for only 79 leaves
thereby stating that, no such leave encashment can
be granted in favour of the Petitioner. The
Petitioner has referred to the Government
Resolution dated 6th December, 1996 and submitted
that in the said Resolution it is clearly provided
that the provisions of leave encashment are also
applicable to the persons working with the
departments having long vacations. It is further
submitted that by Government Resolution dated 15th
January, 2001 the number of leaves which can be
encashed, are extended to 300 days and therefore
the Respondent authorities ought to have granted
leave encashment for 150 leaves, which were at the
credit of the Petitioner. Hence this Petition.
Learned counsel appearing for the
Petitioner referring to the averments in the
Petition, submits that the pay of the Petitioner
was fixed by the Respondent authorities and there
was no mistake on the part of the Petitioner in
the said alleged wrong pay fixation. It is
submitted that Respondents have wrongly deducted
an amount of Rs.2,24,312/- from the retirement
dues of the Petitioner and it is prayed that the
Respondents may be directed to repay the said
amount to the Petitioner. In support of his
submissions, learned counsel placed reliance upon
the exposition of law laid down by the Supreme
Court in the case of State of Punjab and others
etc. vs. Rafiq Masih (White Washer) etc., 2015(4)S.C.C. 334 Learned
counsel further submitted that though the
Petitioner is entitled to get leave encashment for
his 150 earned leaves, the Respondent authorities
have granted leave encashment for only 79 days,
which is contrary to the policy of the State
Government. He therefore submits that the Writ
Petition deserves to be allowed.
On the other hand learned Additional
Government Pleader appearing for the Respondents,
referring to the affidavit-in-reply filed on
behalf of Respondent Nos.1 to 4 submits that while
granting new pay-scale to the employees, the
employees have to give undertaking as per Clause
15.6 of Government Circular bearing (Marathi)
No.Vepura-1209/ Pra.Kra.69/Seva-9 dated 29th
April, 2009 that, if there would be any wrong
fixation and if there would be any excess payment
made to the employee, due to wrong fixation,
he/she would be liable to repay the same to the
Government. In view of the said circular, the
Petitioner has given undertaking while fixation of
pay and he has specifically stated that if there
is any wrong pay fixation and excess payment if
paid, then he is bound to refund that amount.
Learned Additional Government Pleader has
further submitted that, so far as prayer for leave
encashment of 150 days is concerned, by order
dated 20th January, 2017 the permission has been
granted to leave encashment. An amount of
Rs.2,28,330/- was withdrawn from District Treasury
Office, Beed vide voucher No.30 dated 2nd
February, 2017 and paid to the Petitioner through
cheque.
Learned Additional Government Pleader
submitted that the Petitioner was initially
appointed as supervisor, thereafter he was
absorbed as Assistant Project Officer due to
surplus in the said cadre. It is submitted that as
per Government Notification in Finance Department
dated 10th December, 1998 the pay-scale applicable
to the post of Assistant Project Officer is
Rs.5000-8000/-. However, while fixing the revised
pay-scale of the Petitioner, his pay was wrongly
fixed in the pay-scale of Rs.5500-9000. Due to
wrong fixation clarified by the Pay Verification
Unit (Squad), Aurangabad, the Accountant General
Nagpur-II sanctioned the pension case of the
Petitioner in the pay-scale of Rs.5000-8000, which
is applicable to the post of Assistant Project
Officer. When service book of the Petitioner was
sent to Pay Verification Unit, Aurangabad, it has
made objection that pay scale of Rs.5500-9000 has
been wrongly granted to the Petitioner. In respect
of the allegations made by the Petitioner that
before deducting the said amount the Petitioner
was not heard, it is submitted that as per the
Government Notification, the recovery has been
made and therefore there was no need to give
personal hearing to the Petitioner. It is
submitted that in accordance with the policy of
the Government of Maharashtra, as excess amount
was paid to the Petitioner due to wrong pay
fixation, as per the undertaking given by the
Petitioner, the said excess amount was recovered
from the Petitioner, which action on the part of
the Respondent authorities is perfectly legal.
Therefore, it is prayed that the Writ Petition may
be rejected.
We have given careful consideration to
the submissions of the learned counsel appearing
for the Petitioner and learned Additional
Government Pleader appearing for the State. With
their able assistance, we have carefully perused
the averments in the Petition, the documents
placed on record and also the reply filed on
behalf of the Respondents and the annexures
thereto, including the relevant Government
Resolutions and Notifications.
So far as the grievance of the Petitioner
that he is entitled to get leave encashment for
his 150 earned leaves which were at his credit at
the time of retirement is concerned, the
Respondents have placed on record copy of the
order dated 20th January, 2017 issued by the
Deputy Director of Education, Aurangabad Region,
Aurangabad, whereby permission has been granted
to encash 150 days earned leaves which were at the
credit of the Petitioner. It is specifically
submitted by the Respondents in the affidavit that
an amount of Rs.2,28,330/- was withdrawn from
District Treasury Office, Beed vide Voucher No.30
dated 2nd February, 2017. The said facts are not
disputed on behalf of the Petitioner. Thus, it is
clear that the grievance raised by the Petitioner
in respect of leave encashment already stands
redressed.
From the perusal of the contents of the
affidavit filed on behalf of the Respondents it is
clear that initially the Petitioner was appointed
as Supervisor in the pay-scale of Rs.335-680 in
Third Pay Commission, thereafter he was absorbed
as Assistant Project Officer in the pay-scale of
Rs.1400-2600. However, while revising his pay-
scale in Fifth Pay Commission, instead of pay-
scale of Rs.5000-8000, his pay was wrongly fixed
in the pay-scale of Rs.5500-9000. We have perused
the Notification dated 10th December, 1998 issued
by the Government of Maharashtra in its Finance
Department, wherein old pay-scales and revised
pay-scales are mentioned. The post of Assistant
Project Officer is at Sr. No.136 of the said
Notification, wherein old pay-scale is shown as
Rs.1400-2600 and revised pay-scale is shown as
Rs.5000-8000. Thus, it is crystal clear that in
the Fifth Pay Commission, the pay-scale applicable
to the post held by the Petitioner was Rs.5000-
8000, however due to the mistake on the part of
the Respondent authorities, the pay of the
Petitioner was wrongly fixed in the pay-scale of
Rs.5500-9000.
We have perused the Circular dated 29th
April, 2009 issued by the Government of
Maharashtra in its Finance Department. It is
specifically mentioned in the said Circular that
if there is any wrong pay fixation and excess
payment paid, the concerned employee is bound to
refund the said amount. The relevant portion of
the Circular dated 29th April, 2009 reads as
under:
"VERNACULAR MATTER OMITTED"
As stipulated in the Circular dated 29th
April, 2009, referred above, the Petitioner has
given an undertaking that, in case it is
transpired in future that due to wrong pay
fixation excess payment is made to him, he would
repay the said amount to the Government of
Maharashtra. The copy of the undertaking so
furnished by the Petitioner is placed on record by
the Respondents, which reads as under:-
"VERNACULAR MATTER OMITTED"
I hereby undertake that any excess
payment that may be found to have been
made as a result of incorrect of pay or
any excess payment detected in to the
Government either by adjustment future
payments due to me or otherwise
"VERNACULAR MATTER OMITTED"
We have carefully perused the ratio laid
down by the Supreme Court in the case of State of
Punjab and others etc. vs. Rafiq Masih (White
Washer) etc., relied upon by learned counsel
appearing for the Petitioner. However, in support
of his submissions, learned Additional Government
Pleader has placed reliance upon the exposition of
law laid down by the Supreme Court in the recent
Judgment in the case of High Court of Punjab and
Haryana and others vs. Jagdev Singh, (2016) 14 S.C.C. 267, wherein in
Para 10, 11 and 12 of the Judgment it is observed
that:
"10. In State of Punjab and Ors. etc. v. Rafiq Mashi (White Washer) etc. (2015) 4 SCC 334 this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group ''C'' and Group ''D'' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongly been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required 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 iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer''s right to recover.
(emphasis supplied).
The principle enunciated in proposition
(ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished and undertaking while opting for the revised pay scale. He is bound by the undertaking.
For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years."
The facts in the present case are similar
to that of the facts in the case of High Court of
Punjab and Haryana and others vs. Jagdev Singh,
cited supra and, therefore the ratio laid down is
squarely applicable. In the present case in hand
also the Petitioner was put on notice that any
payment found to have been made in excess would be
required to be refunded. The Petitioner has
furnished an undertaking while opting for the
revised pay-scale and therefore he is bound by the
said undertaking.
The recovery of the excess amount paid to
the Petitioner has already been made from the
retirement dues payable to the Petitioner. The
action taken by the Respondents for recovering the
excess amount is in accordance with the policy and
guidelines laid down by the Government of
Maharashtra in that behalf. No case is made out by
the Petitioner for interference in exercise of
writ jurisdiction of this Court. There is no merit
in the Writ Petition.
For the reasons afore-stated, the Writ
Petition is rejected. Rule stands discharged.
There shall be no order as to the costs.