1 O.A.No.

66 of 2022

MAHARASHTRA ADMINISTRATIVE TRIBUNAL

NAGPUR BENCH NAGPUR
ORIGINAL APPLICATION NO. 66 / 2022 (S.B.)
Abhijit Pralhadrao Jichkar,
Aged about 50 years, Occ.Service,
R/o H.No.3151,Plot No. 5,
Adivasi Unnati Gruhnirman Sanstha,
Manish Nagar, Nagpur-440 015.

Applicant.
Versus
1) The State of Maharashtra,
Public Works Department,
Mantralaya, Fort, Mumbai-400 032,
Through its Secretary.

2) Senior Accounts Officer,

Office of Accountant General (A & E)-II,
Civil Lines, Nagpur, Maharashtra– 440 001.

3) Nagpur Treasury Office,

Collectorate Compound,
Civil Lines, Nagpur,
Through its Senior Treasury Officers,
Maharashtra – 440 001.
Respondents

Shri S.A.Pathak, ld. Advocate for the applicant.

Shri M.I.Khan, ld. P.O. for the respondents.

Coram :- Hon’ble Shri M.A.Lovekar, Member (J).

JUDGMENT

Judgment is reserved on 08th April, 2022.

Judgment is pronounced on 07thJuly, 2022.
 2 O.A.No. 66 of 2022

Heard Shri S.A.Pathak, ld. counsel for the applicant and Shri
M.I.Khan, ld. P.O. for the Respondents.

2. In this application order dated 25.11.2021 (A-1) and

20.01.2022 (A-8) passed by respondent nos. 2 & 3, respectively
proposing to recover from the applicant amount of pension stated to be
paid in excess to him, are impugned.

3. Case of the applicant is as follows. The applicant joined the

respondent no. 1 department as Assistant Engineer (Grade-II) on
08.12.2000. By order dated 31.12.2012 (A-2) he was permanently
absorbed in National Highway Authority of India as Manager (Technical).
By order dated 12.02.2015 (A-3) respondent no. 2 fixed his monthly
pension at Rs. 12,135/- payable w.e.f. 01.01.2013. On 28.01.2021
respondent no. 2 again passed an identical order (A-4). On 27.07.2021
the respondents deposited, after deduction the amount of T.D.S., an
amount of Rs. 22,69,897/- in savings bank account of the applicant
towards pension and arrears (A-5). The applicant found that this amount
included Dearness Allowance which he was not entitled to get (from his
previous employer) since he was getting it from his present employer.
After making correspondence respondent no. 3 deducted excess
payment of Dearness Allowance – Rs. 11,92,573/- from the account of
the applicant on 30.10.2021 (A-7). The applicant was then served with
the impugned orders (A-1 & A-8). In the impugned orders it was stated
that inadvertently the date of commencement of pension was mentioned
as 01.01.2013 instead of 08.12.2020 because of which excess payment
was made and it was required to be recovered. The recovery proposed
under the impugned orders cannot be effected for the following
reasons:-
 3 O.A.No. 66 of 2022

“A. Recovery of excess payment is impermissible if the

payment is made on account of wrong construction of relevant
order by the authority concerned without any
misrepresentation by the employee.

B. There is inordinate and unexplained delay in effecting

recovery.

C. The recovery has been effected with retrospective effect.

D. Mistake/error is committed by the authorities

concerned.

E. The recovery effected is in the utter disregard of

principles of natural justice.

F. Non issuance of notice under Rule 134-A of the

Maharashtra Civil Services (Pension) Rules, 1982.

G. The principles laid down by the Hon’ble Apex Court in

reported judgment between State of Punjab and Ors. Vs. Rafiq
Masih (White Washer) reported in 2014 (8) SCC 883.”

Hence, this application.

4. Reply of respondent no. 2 is at pages 36 to 43. According to

this respondent:-

“The office of the respondent no. 2 had received the

pension proposal from the Executive Engineer, National
Highway Division No. 14, Nagpur. After receipt of the above
proposal, the office of the respondent no. 2 had given
admissibility report on 27.05.2015 and thereby mentioned
that date of admissible of pensionary benefits to the
 4 O.A.No. 66 of 2022

application from 08.12.2020 as per the Rule 67 (d) of the

Maharashtra Civil Services Pension Rules, 1982. The above
report is also given to the applicant.

The pension proposal was received from PSA vide letter

dated 15.01.2015 and only admissibility report (pension
benefits may vary based on clarification received from
department) was issued on 12.02.2015 indicating pension @
Rs. 12, 135/- w.e.f. 01.01.2013 with a remark that the rule
under which, pension is payable as per the Maharashtra Civil
Service (Pension) Rules, 1982 may be stated in Form-6.

The pension was again resubmitted by the PSA vide

letter dated 27.03.2015 indicating the Rule 67 of the
Maharashtra Civil Service (Pension) Rules, 1982 as indicated
in the copy of absorption order dated 31.12.2012 issued by the
respondent no. 1. Hence, admissibility report was again issued
on 27.05.2015, with a copy to the applicant, indicating the
date of commencement w.e.f. 08.12.2020 as per the Rule 67 (D)
of Maharashtra Civil Service (Pension) Rules, 1982 which,
states that ‘the pro-rata pension, gratuity etc. admissible in
respect of the service rendered under Government would be
disbursable either from the earliest date from which the
Government servant could have been retired voluntarily under
the rules applicable to him or from the date of absorption in
the concerned organisation, whichever is later.’

On the basis of the office of the respondent no. 2 issuing

admissibility report dated 27.05.2015, the sanction was
received from the PSA vide letter dated 27.11.2020 for release
of pensionary benefits from 08.12.2020. The office of the
 5 O.A.No. 66 of 2022

respondent no. 2 while issuing authority of pensionary benefits

vide letter dated 28.01.2021 had inadvertently shown the date
of commencement as 01.01.2013 instead of 08.12.2020. Hence,
the office of the respondent no. 2 immediately issued letter
dated 25.11.2021 thereby making necessary correction in the
date of commencement of pension, which was inadvertently
mentioned as 01.01.2013 instead of 08.12.2020 and requested
the Treasury Officer, Nagpur to adjust the excess paid pension
till date from the pension and other pensionary dues.”

To this reply admissibility report dated 27.05.2015 is

attached (A-R-1). It specifically states the date of commencement of
pension to be 08.12.2020. In his rejoinder at pages 45 to 57 the applicant
has asserted that even if case of the respondents is presumed to be
correct, the amount of excess payment would come to Rs. 5,22,617/- and
not Rs. 15,99,941/- as mentioned in A-8 dated 20.01.2022. To support
this submission the applicant has given a chart in his rejoinder which is
follows:-

Date Amount Amount Remarks

deposited refunded/
sought to be
refunded
27.07.2021 Rs.22,69,897/- --- Gross amount for a period from
01.01.2013 to 31.05.2021.
30.10.2021 --- Rs. 11,92,573/- Amount of Rs. 11,92,573/- towards
out of Rs. D.A. returned by the applicant out of
22,69,897/- thus Rs. 22,69,897/- on 30.10.2021.
remaining
amount left with
applicant comes
to Rs.
10,77,324/-
20.01.2022 --- Rs.15,99,941/- Alleged excess amount of refund
sought by the respondent no. 3.
Total Rs.22,69,897/- Rs.27,92,514/- Rs.5,22,617/-
Additional amount sought to be
refunded which is not deposited in the
account of applicant.
 6 O.A.No. 66 of 2022

5. Additional reply of respondent no. 2 is at pages 60 to 65.

According to the respondent no. 2:-

“The applicant has suppressed various material facts in

present original application and hence, the present
application is hit by rule of suppressio very suggestio falsi and
as such is liable to be rejected.

Admissibility report is not an authorization but

communication of admissible pensionary benefits to the
pension sanctioning authority and the pensioner. As such, copy
of the admissibility report is not endorsed to the Treasury
officer concerned. The pensionary benefits are subsequently
authorized on receipt of compliance/documents called for
from the PSA, which is always subject to change after receipt
of clarification from the PSA. Third Report dated 28.01.2021
mentioned by the applicant is not an admissibility report but
authorization of pensionary benefits.

Copy of Government order dated 31.12.2012, which

clearly states as retirement under Rule 67, hence 2nd
admissibility report was issued on 27.05.2015 showing date of
commencement of pension as 08.12.2020 intimating
provisions of Rule 67 (D) of M.C.S. (Pension) Rules, 1982. As the
applicant was to complete 20 years of qualifying service
required for voluntary retirement on 07.12.2021, pensionary
benefits were admissible from 08.12.2020.

On receipt of correction letter dated 25.11.2021 issued

by this office, Treasury Officer has correctly asked the
pensioner to remit the excess paid pensionary benefits to the
 7 O.A.No. 66 of 2022

Government. However, action as regards effecting recovery

from pension as per provisions of Rule 134A of M.C.S. (Pension)
Rules, 1982 is taken at the level of Treasury Officer/ PSA
concerned.”

6. Reply of respondent no. 3 is at pages 66 to 74. According to

this respondents –

“The office of the respondents have verified the pension

case of the applicant and has found that, the amount of Rs.
15,99,941/- has been issued in excess instead of considering
the date of retirement as on 31.12.2012, the payment of Rs.
15,98,063/- has been paid in excess for the period 01.01.2013
to 07.12.2020 of Rs. 15,98,063/- for the period 01.01.2013 to
07.12.2020 and Rs. 1,878/- for the period 01.01.2013 to
06.01.2013 of Rs. 1,878/- comes to Rs. 15,99,941/-, accordingly
Senior Accounts Officer has issued the communication to the
Treasury Officer, Nagpur on 25.11.2021.

The approach on the part of the applicant is malafide,

he has not approached this Hon’ble Tribunal with clean hands
and thus the attitude of the applicant disentitles him for claim
or any relief at the hands of this Hon’ble Court. The payment
made to the applicant in excess is public money and being a
custodian of the public money, the action taken on the part of
the respondent is just, legal and proper.”

To this reply respondent no. 3 has attached, at A-R-3-4, the

following undertaking given by the applicant on 20.02.2021:-
 8 O.A.No. 66 of 2022

gehi=

eh izekf.kr djrks dh Jh vfHkthr izYgknjko ftpdkj ih-ih-vksdz-

1121010275226 dWujk cWad] xka/khuxj] ukxiwj cWdsps ukao [kkrs dzekad
0265110000007 Hkfo”;kr dks.krhgh ‘kkldh; olqyh o fuo`Rrh ;srukph vfriznku
jDde >kY;kal fuo`Rrh osrukrwu dikr dj.;kr ek>h gjdr ukgh lcc gehi= nsr
vkgs-

7. In additional rejoinder (at pages 80 to 95) the applicant has

avert:-

“5. The justification given in para no. 6 of the

affidavit submitted by the respondent no. 3 in itself is
confusing and not at all justifying as to how an amount of Rs.
15,99,941/- stands recoverable from the applicant when after
1st recovery, with the initiative of the applicant himself, an
amount of Rs. 11,92,573/- out of total deposited amount of Rs.
22,69,897/- was already recovered on 30.10.2021 thereby
leaving only 10,77,324/- in the account of the applicant.
Moreover, since the first payment of Rs. 22,69,897/- was made
on 27.07.2021 it is evident that the pension for a period upto
June, 2021 has been calculated by the respondent no. 3. Thus,
this amount also includes pension for a period from
08.12.2020 to 30.06.2021 which is estimated to be Rs.
2,11,266/- @ Rs. 31,187/- per month for 6 months 24 days. It
is amply clear from the submissions of applicant that the
amount available in the account of applicant is only Rs.
8,66,058/- (Rs. 10,77,324/- - (minus) Rs. 2,11,266/-). A copy of
bank statement for a period from June, 2021 to March, 2022 is
enclosed herewith and marked as Annexure No. A-9.”

It is further averred:-
 9 O.A.No. 66 of 2022

“The provisions of Rule 67(D) of the Maharashtra Civil

Services Rules, 1982 deal with the word “disbursable” and not
the “date of commencement of pension” which has been used
by the respondent no. 2 in its reply for their own convenience.
The intention of the legislature is absolutely clear in
introducing the aforesaid provision for the purposes of
reckoning the date of disbursement only. There is no wording
of “commencement of pension” in the entire provision, thus the
respondents are completely misinterpreting provisions of Rule
67(D) of the Maharashtra Civil Services Rules, 1982 as per
their own convenience and with a view to effect recovery from
the applicant under the misinterpretation of the aforesaid
rule. ”

To decide this point reference to Rules 66 & 67 of the

Maharashtra Civil Services (Pension) Rules, 1982 would be necessary.
These Rules read as under:-

“66. Retirement on completion of 20 years qualifying

service

(1) At any time after a Government servant has completed

twenty years qualifying service, he may, by giving notice of [ ]
three months in writing to the appointing authority, retire from
service.

(2) The notice of voluntary retirement given under sub-rule

(1) shall require acceptance by the appointing authority:

Provided that where the appointing authority does not

refuse to grant the permission for retirement before the expiry of
 10 O.A.No. 66 of 2022

the period specified in the said notice, the retirement shall

become effective from the date of expiry of the said period

(3) [ ]

Provided that the total qualifying service after allowing

the increase under this sub-rule , shall not exceed the qualifying
service which the Government servant would have had, if he had
retired voluntarily at the lowest age limit for voluntary
retirement prescribed under sub-rule (5) of rule 10.

(4)(a) [A Government servant referred to in sub-rule (I)

may make a] request in writing the appointing authority to
accept notice of voluntary retirement of less than three months
giving reasons therefore;

(b) On receipt of a request under clause (a), the appointing

authority subject to the provisions of sub-rule (2), may consider
such request for the curtailment of the period of notice of three
months on merits and if it is satisfied that the curtailment of the
period of notice will not cause any administrative inconvenience,
the appointing authority, with the concurrence of the Finance
Department, may relax the requirement of notice of three
months on the condition that the Government servant shall not
apply for commutation of a part of his pension before the expiry
of the period of notice of three months.

(5) A Government servant, who has elected to retire under

this rule and has given the necessary notice to that effect to the
appointing authority, shall be precluded from withdrawing his
notice except with the specific approval of such authority:
 11 O.A.No. 66 of 2022

Provided that the request for withdrawal shall be made

before the intended date of his retirement.

(6) The pension and [retirement gratuity] of the

Government servant retiring under this rule shall be based on the
pay as defined under rules 60 and 61 and the increase not
exceeding five years in his qualifying service shall not entitle him
to any notional fixation of pay for purposes of calculating
pension and gratuity.

(7) This rule shall not apply to a Government servant

who-

(a) retires when he is declared surplus

(b) retires from Government service for being absorbed

permanently in an Autonomous Body or a Public Sector
Undertaking to which he is on deputation at the time of seeking
voluntary retirement.

Explanation- For the purpose of this rule the expression

“Appointing authority” shall mean the authority which is
competent to make appointments to the service or post from
which the Government servant seeks voluntary retirement.

[66A- Addition to qualifying service on voluntary

retirement-

(1) The qualifying service as on the date of intended

retirement of a Government servant retiring under sub-rule (5) of
rule 10, clause (a) of the proviso to sub-rule (1) of rule 65 or, as
the case may be, sub-rule (I) of rule 66 shall be increased by a
 12 O.A.No. 66 of 2022

period not exceeding five years, subject to the condition that the
total qualifying service rendered by the Government servant
does not in any case exceed thirty-three years and it does not
take him beyond the date of Superannuation.

(2) The weightage of five years under sub-rule (1) shall not
be admissible in cases of those Government servants who are
prematurely retired by the Government in the public interest
under sub-rule (4) of rule 10 or, as the case may be, clause (b) of
the proviso to sub-rule (1) of rule 65].

67. Pension on absorption in or under a Corporation,

Autonomous Body or a Local Authority

A permanent Government servant who while on

deputation is permitted to be absorbed in a service or post in or
under a Corporation or Company wholly or substantially owned
or controlled by the Government or an Autonomous Body or a
Local Authority shall, if such absorption is declared by the
Government to be in the public interest, be deemed to have
retired from service from the date of such absorption and shall
be eligible to receive retirement benefits which he may have
elected or deemed to have elected from the date from which the
pro-rata pension, gratuity, etc, would be disbursable as under :-

(a) The pro-rata pension and [retirement gratuity] shall be

based on the length of his qualifying service under Government
till the date of absorption. The pension will be calculated on the
basis of pensionable pay for ten months preceding the date of
 13 O.A.No. 66 of 2022

absorption and the [retirement gratuity] on the basis of the pay

immediately before absorption.

(b) In cases where a Government servant at the time of

absorption has less than 10 years service and is not entitled to
pension; he will only be eligible for proportionate service
gratuity in lieu of pension and to [retirement gratuity] based on
length of service.

(c) The amount of pension/gratuity and the [retirement

gratuity] would be concurrently worked out and will be
intimated to the Government servant as well as to the
concerned organization as and when the Government servant is
absorbed.

(d) The pro-rata pension, gratuity, etc;, admissible in

respect of the service rendered under Government would be
disbursable either from the earliest date from which the
Government servant could have been retired voluntarily under
the rules applicable to him or from the date of absorption in the
concerned organization, whichever is later.

(e) Every Government servant will exercise an option,

within six months of his absorption for either of the alternatives
indicated below:-

(i) receiving the monthly pension and [retirement gratuity]

already worked out, under (a) above.

(ii) receiving the [retirement gratuity] and a lump sum

amount in lieu of pension worked out with reference to
 14 O.A.No. 66 of 2022

commutation tables obtaining on the date from which the pro-

rata pension, gratuity, etc., would be disbursable.

Where no option is exercised within the prescribed period,

the Government servant will automatically be governed by
alternative (ii) above. Option once exercised shall be final. The
option shall be exercised in writing and communicated by the
Government servant concerned to the concerned Undertaking,
Department and Audit.

(f)Where a Government servant elects alternative (e)

(ii),he shall, in addition to the [retirement gratuity] be granted-

(i) on an application made in this behalf, a lump sum

amount not exceeding the commuted value of one-third of his
pension as may be admissible to him in accordance with the
provisions of Chapter III of the Maharashtra Civil Services
(Commutation of Pension) Rules, [1984] and

(ii) terminal benefits equal to the commuted value of the

balance amount of pension left after commuting one-third of
pension referred to in clause (i) in accordance with provisions of
Chapter IV of the Maharashtra Civil Services (Commutation of
Pension) Rules, [1984] subject to the condition that the
Government servant surrenders his right of drawing two-third of
his pension.

(g)Notwithstanding anything contained in (f) above, where

any lump sum amount in addition to the [retirement gratuity]
had been paid at any time between the period commencing on
28th April 1981 and ending with the commencement of these
 15 O.A.No. 66 of 2022

rules, to any Government servant who had elected the

alternative of receiving the [retirement gratuity] and a lump
sum amount in lieu of pension, such payment shall be deemed
to have been made in accordance with this clause if the
requirements of this rule have been satisfied.

(h)The total gratuity admissible in respect of service

rendered under the Government and that under the concerned
organization should not exceed the amount that would have
been admissible had the Government servant continued in
Government service and retired on the same pay which he drew
on retirement from the concerned organization.

(i) (i) The benefit of Family Pension, 1964 will be

admissible only to the families of those who were/are actually in
receipt of pension from the State Government, after their
absorption in the organization referred to in this rule. This
benefit will not be admissible to the families of those who got
only the service gratuity. Family Pensions will, however, also be
admissible to the families of those Government servants
absorbed in the organizations referred to in this rule, who draw
the lump sum amount in lieu of monthly pension on their
absorption on the date of its becoming due and thus do not draw
any monthly pension on the date of death. Similarly, Family
Pension will also be payable to the families of those whose
monthly pension or lump sum amount has not become payable
and is disbursable from the earliest date of voluntary retirement
but the person dies before that date without receiving these
benefits.
 16 O.A.No. 66 of 2022

(ii) Family Pension will be admissible from only one source

either from the State Government or the organization referred to
in this rule in case such organization has a similar scheme for
payment of Family Pension. The beneficiary may be given option
to choose either of the two schemes.

(iii) Grant of Family Pension, 1964, will be subject to other

conditions specified in rule 116;

(j) Any further liberalization of pension rules decided upon by

Government after the permanent absorption of a Government
servant in a concerned organization would not be extended to
him.

(k) In cases where the Government servant has opted to receive

pension as at (e) (i) above but wishes to commute a portion of
the pension, such commutation will be regulated in accordance
with the Government rules in force at the time of his
absorption/voluntary retirement.”

8. The applicant has relied on the following Rulings:-

1. Bhagwan Shukla Vs. Union of India and Ors., AIR

1994 SC 2480. In this case pay fixation was wrongly made.
It was stated that this was due to administrative lapses. By
rectifying the mistake excess payment was sought to be
recovered after 20 years. It was held that such recovery
could not be effected without giving an opportunity of
hearing.

2. T.S.Thiruvengadam Vs. Secretary To Government

Of India (1993) 2 SCC 174. In this case it is held that
 17 O.A.No. 66 of 2022

under rule 37 of Central Civil Services (Pension) Rules, 1972,

a Government Servant who has been permitted to be
absorbed in service in a Central Government Public
undertaking shall be deemed to have retired from service
from the date of such absorption and shall be eligible to
receive retirement benefits in accordance with the orders of
the Government applicable to him. In this case one of the
operative features was that the pro rata pension, gratuity,
etc. admissible in respect of the service rendered under the
Government was disbursable only from the date the
Government servant would have normally superannuated
had he continued in service.

3. Shyam Babu Verma & Ors. Vs. Union of India & Ors.
(1994) 2 SCC 521. In this case higher scale erroneously
given was reduced after 11 years and recovery was effected.
It was held that it was not the fault of the applicants and
hence it would only be just and proper not to recover any
excess amount already paid to them.

4. Sahib Ram Vs. State of Haryana and Ors. 1995 Supp

(1) SCC 18. In this case excess payment was attributable to
wrong construction of relevant order by the authority
concerned. There were no misrepresentations by the
employee. It was held that no recovery could be effected in
these facts.

5. Nand Kishore Sharma & Ors. Vs. State of Bihar &

Ors. 1995 Supp (3) SCC 722.In this case pay scale was
revised without Government sanction. However, payment
was accordingly made as a result of the recommendation of
 18 O.A.No. 66 of 2022

Anomaly Committee with which the Finance Department had

concurred. It was held that under such circumstances excess
payment could not be recovered.

6. M.C.Dhingra Vs. Union of India & Ors. (1996) 7 SCC

564. In this case the appellant retired on 01.02.1973. On
31.03.1982 the Government took a decision to tag previous
service on temporary basis for computation of pension. It
was held that the appellant was also entitled to these
benefits though he had retired earlier since the cut off date
for giving the benefit was fixed arbitrarily.

7. State of Karnataka & Another Vs. Mangalore

University Non-Teaching Employees Association & Ors.
(2002) 3 SCC 302. In this case it is held that conditions of
service may be altered unilaterally in conformity with legal
and constitutional provisions. However, on facts it was held:-

“Though the above discussion merits the dismissal of the

writ petitions and the denial of relief to the respondents, we
are of the view that on the special facts of this case, the
employees of the University have to be protected against the
move to recover the excess payments upto 31.03.1997. When
the employees concerned drew the allowances on the basis of
financial sanction accorded by the competent authority i.e. the
Government and they incurred additional expenditure towards
house rent, the employees should not be penalized for no fault
of theirs. It would be totally unjust to recover the amounts
paid between 01.04.1994 and the date of issuance of GO No. 42
dated 13.02.1996. Even thereafter, it took considerable time to
implement the GO. It is only after 05.03.1997 the Government
 19 O.A.No. 66 of 2022

acted further to implement the decision taken a year earlier.

Final orders regarding recovery were passed on 25.03.1997, as
already noticed. The Vice Chancellor of the university also
made out a strong case for waiver of recovery up to
31.03.1997. That means, the payments continued up to March
1997 despite the decision taken in principle. In these
circumstances, we direct that no recovery shall be effected
from any of the university employees who were compelled to
take rental accommodation in Mangalore city limits for want
of accommodation in the university campus up to 31.03.1997.
The amounts paid thereafter can be recovered in instalments.
As regards the future entitlement, it is left to the Government
to take appropriate decision, as we already indicated above.
Subject to the above direction and observation, the appeals are
allowed. No costs.”

8. Syed Abdul Qadir & Ors. & Vs. State of Bihar & Ors.
(2009) 3 SCC 475. In this case it is held:-

“57. This Court, in a catena of decisions, has granted

relief against recovery of excess payment of
emoluments/allowances if (a) the excess amount was not paid
on account of any misrepresentation or fraud on the part of
the employee and (b) if such excess payment was made by the
employer by applying a wrong principle for calculating the
pay/allowance or on the basis of a particular interpretation of
rule/order, which is subsequently found to be erroneous.

58. The relief against recovery is granted by courts

not because of any right in the employees, but in equity,
exercising judicial discretion to relieve the employees from the
 20 O.A.No. 66 of 2022

hardship that will be caused if recovery is ordered. But, if in a

given case, it is proved that the employee had knowledge that
the payment received was in excess of what was due or
wrongly paid, or in cases where the error is detected or
corrected within a short time of wrong payment, the matter
being in the realm of judicial discretion, courts may, on the
facts and circumstances of any particular case, order for
recovery of the amount paid in excess. See Sahib Ram vs. State
of Haryana, ShyamBabuVerma vs. Union of India, Union of
India vs. M. Bhaskar, V. Ganga Ram vs. Regional Jt., Director,
Col. B.J. Akkara [Retd.] vs. Government of India,PurshottamLal
Das & Ors., vs. State of Bihar, Punjab National Bank Vs.
Manjeet Singh and Bihar State Electricity Board Vs.
BijayBahadur.”

9. State of Bihar & Ors. Vs. Pandey Jagdishwar Prasad

(2009) 3 SCC 117. In this case, on facts, it was held:-

“Accordingly, we are in agreement with the Division

Bench decision that since the respondent was allowed to work
and was paid salary for his work during the period of two
years after his actual date of retirement without raising any
objection whatsoever, no deduction could be made for that
period from the retiral dues of the respondent. ”

10. State of Punjab & Ors. Vs. Rafiq Masih (White

Washer) & Ors. (2015) 4 SCC 334. In this case it is held:-

“12. It is not possible to postulate all situations of

hardship, which would govern employees on the issue of
recovery, where payments have mistakenly been made by the
 21 O.A.No. 66 of 2022

employer, in excess of their entitlement. Be that as it may,

based on the decisions referred to hereinabove, we may, as a
ready reference, summarise the following few situations,
wherein recoveries by the employers, 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 wrongfully 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. ”

11. Koyala Udyog Kamgar Sanghatan, Nagpur Vs.

Central Mine Planning and Design Institute Ltd. & Ors.
2007 (4) Mh.L.J. 766. In this case the issue was as follows:-

“1. The challenge in both these Writ Petitions filed

under Article 226 of Constitution of India is to the action of
 22 O.A.No. 66 of 2022

Respondents/Employer of effecting the recovery of amount of

H.R.A. i.e. house rent allowance allegedly paid in excess to
Petitioners/Employees. Said recovery is on the ground that
revised provision and formula for payment of H.R.A. evolved as
per National Coal Wage Agreement VI, hereinafter referred to
as NCWA-VI has been implemented with effect from 1/6/2001
and therefore payment of H.R.A. in accordance with NCWA-V
from 1/7/1996 till 31/5/2001 on revised basic salary i.e. as
revised by NCWA-VI was illegal and unwarranted. Petitioners
have prayed for quashing & setting aside of the order as
contained in fax message dated 5/3/2003 ordering its
recovery. W. P. 2103/2003 is filed by ten individuals. There is
also prayer to refund the amount if recovered with interest @
18% per annum in W. P. 2190/2003. Petitioner therein is a
trade union registered under the provisions of Trade Unions
Act, 1926. In both these matters while issuing "Rule", interim
relief has been refused. It is admitted position that thereafter
Respondents have completed recovery of alleged excess
amount of H.R.A. received by Petitioners. It is also admitted
position that payment of H.R.A. as revised by NCWAVI was
sanctioned to Petitioners on 14/06/2001 with effect from
1/6/2001. New facts were disclosed by Respondents during
final hearing & hence, Petitioners filed Civil Application
4090/2007 and 4140/2007 in respective WritPetitions for
amendment and in reply thereto, Respondents have pointed
out another decision dated 17/5/2004 by which said date
"1/6/2001" is replaced by date "1/7/1999". Thus the period
for which recovery is in dispute now stands curtailed and the
same is from 1/7/1996 to 30/6/1999.”
 23 O.A.No. 66 of 2022

The issue framed as above was answered in the

negative and recovery was quashed.

12. Vishnu Manerikar Vs. State of Goa & Ors. 2012 (4)
Mh.L.J. 443. In this case the amount paid in excess was
sought to be recovered after 12 years, and that to, without
giving an opportunity of hearing. It was held to be paid.

13. Arun Ambadasji Chawade Wardha Vs. Chief

General Manager, Bharat Shanchar Nigam Ltd. & Ors.in
W.P. No. 1662 of 2013. In this case the Bombay High Court
relied on Syed Abdul Qadir (supra) and held recovery of
excess payment to be impermissible since it was not on
account of any misrepresentation or the fault on the part of
the petitioner.

14. Dr. Nivruti S/o Baliram Kalyan Vs. State of

Maharashtra & 6 Ors. in W.P. No. 11228 of 2015. In this
case by relying on Rafiq Masih (supra) recovery of excess
payment on account of wrong fixation was held to be bad.

15. Ujwala Wd/o Rupchand Thakre (Smt.) Nagpur Vs.

Divisional Controller, Maharashtra State Road Transport
Corporation, Nagpur & Another 2016 II CLR 607. In this
case, by relying on Rafiq Masih (supra) and facts, recovery for
overpayment from employee who was not guilty of
misrepresentation was held to be unsustainable.

16. Issak Abbas Hawaldar Vs. The Block Education

Officer, Panchayat Samiti, Hatkanangale 2017 SCC
Online Bombay 9687 : (2018) 3 BOM CR 197. In this case
the question formulated for determination was as follows:-
 24 O.A.No. 66 of 2022

“3. The question that arises for consideration in this

writ is, “whether overpayment of amount due to wrong
fixation of petitioner – teacher’s pay scale, based on Sixth Pay
report could be recovered after retirement from his terminal
benefits?

By relying on Rafiq Masih & Syed Abdul Qadir and by

distinguishing Chandi Prasad Uniyal Vs. State of Uttarakhand,
reported in (2012) 8 SCC 417, in the light of facts of the case the
question was answered to be negative.

17. Qamrunnisha Mohammed Hashim Vs. The

Municipal Corporation of Greater Mumbai & Ors. 2017
SCC Online Bom 9836. In this case reliance was placed on
Rafiq Masih (supra) to hold that recovery of payment made
in excess could not be effected.

18. Smt. Jayshree Trimbak Takalkar Vs. The Chief

Executive Officer, Zilla Parishad, Aurangabad & Another
2017 SCC Online Bom 9420. In this case it is held :-

“13. The recovery by the employers were held to be

impermissible in law in situations those have been enumerated
in paragraph No.18 of Rafiq Masih's case (Supra). The case of
the petitioners squarely falls within clause (i), (ii), (iii) and (v)
of para No.18 of the said case.

14. Further in Shyam Babu Verma and Ors. v/s. Union of India
reported in (1994) 2 SCC 521, the Hon'ble Supreme Court has
held that since the petitioners received the higher scale due to
no fault of theirs, it shall only be just and proper not to recover
any excess amount already paid to them.
 25 O.A.No. 66 of 2022

15. Even in the case of Chandi Prasad Uniyal and Ors. Vs. State
of Uttarakhand and Ors., (supra) though it has been held that,
the recovery can be ordered; but the Apex Court accepted that
such recovery is barring few exceptions. It has been observed
as follows ;

"16. We are concerned with the excess payment of

public money which is often described as "tax payers
money" which belongs neither to the officers who have
effected over- payment nor that of the recipients. We fail
to see why the concept of fraud or misrepresentation is
being brought in such situations. Question to be asked is
whether excess money has been paid or not may be due
to a bona fide mistake. Possibly, effecting excess
payment of public money by Government officers, may
be due to various reasons like negligence, carelessness,
collusion, favouritism etc. because money in such
situation does not belong to the payer or the payee.
Situations may also arise where both the payer and the
payee are at fault, then the mistake is mutual. Payments
are being effected in many situations without any
authority of law and payments have been received by
the recipients also without any authority of law. Any
amount paid/received without authority of law can
always be recovered barring few exceptions of extreme
hardships but not as a matter of right, in such situations
law implies an obligation on the payee to repay the
money, otherwise it would amount to unjust enrichment.
 26 O.A.No. 66 of 2022

16. Therefore, it cannot be said that any contrary view was

taken by the Apex Court. In paragraph No.14, the Apex Court
has taken a note of the directions given in 2009 (3) Supreme
Court Cases 475 i.e. Syed Abdul Qadir's case. When the interim
order was passed by this Court (Nagpur Bench) in Writ
Petition No. 2258 of 1993 and the Government Resolution
regarding fixation of pay was issued; the Government has
given a further pay scale in pursuance to the said order.
Though in the said writ petition it has been held that, the
demand of treating Lady Health Visitor (L.H.V.)/ Health
Assistant (Female) as equivalent to Nurse Midwife is
misconceived and cannot be sustained, and therefore, the
orders dated 7th April 1993 and 9th July 1993 rectifying the
error committed by the Zilla Parishad earlier were held to be
sustainable. However it is to be noted that, no order as regards
recovery was passed. Though the Government was aware
about granting of further pay scale in view of interim order, no
prayer was made in that petition by the Government in respect
of recovery. A similar situation arose in the case in Writ
Petition No.6919 of 2012 before this Court; wherein the basis
for effecting recovery was stated to be a decision rendered by
the Division Bench of this Court in Writ Petition No.2750 of
1990 decided on 21-06-2009. In the said case it was observed
that, the Division Bench in that proceeding had not directed or
in any way suggested to the respondents to take steps for
recovering the amount or revise the pay of the employees
extended in the year 1984. Therefore, it was held that, the case
of the petitioner squarely falls within the exceptions carved
out in the matter of Syed Abdul Qadir. Here also the case of the
 27 O.A.No. 66 of 2022

petitioners is well within the exceptions carved out in the

matter of Syed Abdul Qadir.

17. The petitioner’s case is based on the equal footing of the

other matters which have been cited by the learned counsel for
the petitioners. The case cited by the respondents bearing Civil
Appeal No.3500 of 2006 by Apex Court in High Court Punjab
and Haryana and others Vs. Jagdev Singh, is based on different
facts, the petitioner therein was a Class-I employee (Civil
Judge, Junior Division) and then was promoted as Additional
Civil Judge, therefore definitely he was not within the
exceptions. Further though in that case as well as in the
present case, an undertaking was given by the petitioners yet
the undertaking given by the present petitioners was subject
to the legal proposition that has been laid down in Rafiq
Masih's case. This was the exact view taken in Writ Petition
No.6191 of 2016 by this Court when the petitioner therein was
also not found to be a Class -III or Class -IV employee, therefore
the view taken in those cases cannot be made applicable to the
present case.

18. Taking into consideration the above discussion, definitely

the step taken by the respondents for re-fixation of the pay-
scale of the petitioners after about 13 years or more without
hearing petitioners and thereafter recovery and actually
deducting it from the gratuity cannot be upheld. As per the
procedure laid down in Rule 134 (a) of the Maharashtra Civil
Service (Pension) Rules 1982, opportunity ought to have been
given to the petitioners herein, and therefore, now we would
be inclined to give an opportunity to the respondents to re-fix
 28 O.A.No. 66 of 2022

the pay of the petitioners after giving them an opportunity.

This is a fit case where the writ jurisdiction of this Court under
Article 226 and 227 deserves to be invoked. For the aforesaid
reasons writ petitions deserve to be allowed.”

19. Dharmpal Bhimdeo Marchande & 8 Ors. Vs. State of

Maharashtra & Ors 2018 SCC Online Bom 1029. In this
case reliance was placed on Rafiq Masih (supra) and case of
Jagdev Singh was distinguished by observing as follows:-

“The reliance placed by Shri Dighe on the Judgment of

the Hon’ble Apex Court in the case of High Court of Punjab and
Haryana Vs. Jagdev Singh (Supra) cannot be made applicable
to the present facts of the case. In that case an undertaking
was given by the officer in question while opting for the
revised pay scale and the Hon’ble Apex Court has held that he
was bound by the said undertaking. As far as the present case
is concerned, though the respondent would harp that the
petitioners have also signed and given undertaking to the
effect that if on account of the wrong pay fixation disparity is
noticed in the future point of time in pay fixation the same
amount in excess would be paid, the same amount would be
liable to be recovered from the benefits payable to the
petitioner. This undertaking was obtained by all the
Government servants in terms of Annexure-II appended to the
government resolution dated 29.04.2009 by which the pay
revision was recommended in pursuance of the
recommendations of the sixth pay commission. However, the
said undertaking would not bind the petitioner where the
respondents have wrongly applied criteria of eligibility
 29 O.A.No. 66 of 2022

prescribed in government resolution dated 03.04.2003, which

is in fact not applicable to them.”

20. Grace George Pampoorickal Vs. Municipal

Corporation of Gr. Mumbai & Ors., 2018 SCC Online Bom
1037. In this case reliance is placed on Rafiq Masih and Syed
Abdul Qadir to hold that recovery of excess payment on
account of wrong pay fixation was not permissible.

21. Union of India & Ors. Vs. Nabilal S. Saheb, 2018 SCC
Online Bom 1904. In this case it is held:-

“9] Even if the petitioners were to make out some case

for reduction of pension from Rs.6750 to Rs.6150, there was
absolutely no case made out for ordering recovery of the so
called excess payment. The petitioners in quite high handed
manner proceeded to recover such amounts from the retiral
benefits due and payable to the respondent, notwithstanding
the position of law made clear by the Hon'ble Supreme Court
in State of Punjab and ors. vs. RafiqMasih (White Washer) and
ors. (2015) 4 SCC. Such recovery indeed smacks of insensitivity,
not to mention illegality. Now that the CAT has held that there
was no good ground to even order the reduction of pension,
recovery effected by the petitioners can certainly not be
sustained. Even though, there was no interim relief in this
matter, the petitioners, unconcerned with the advanced age of
the respondent, failed to comply with the directions in the
impugned judgment and order.”

22. M.P.Sreedharan Vs. Union of India and Ors., 2018

SCC Online Bom 1949. In this case it is held:-
 30 O.A.No. 66 of 2022

“Merely, because the petitioner may have made a

representation for grant of such benefit does not lead to
inference that the petitioner has played any fraud or
misrepresented any facts. There was not a single fact, which
could be said to have been misrepresented by the petitioner.
The petitioner on the basis of existing executive instructions
dealing with the issue of MACPS represented to the
appropriate authorities for grant of such benefits from the
year 2009. The representation found favour with the
respondents and therefore, the respondents awarded such
benefit to the petitioner from the year 2009 itself. Merely,
because the respondents, at a later point of time realized that
such benefit was payable to the petitioner from the year 2012
and not the year 2009, it cannot be said that the respondents
have some unqualified right to recover so called alleged excess
payments and that too, without even minimum compliance
with principles of natural justice and fair play. The issue as to
whether the benefit was mistakenly availed by the petitioner
from the year 2009 is also, an issue which is quite debatable.
However, even if it is assumed that there was some mistake
involved in the matter, that by itself, is not sufficient to order
recoveries and that too, without minimum compliance with
the principles of natural justice and fair play.”

23. Union of India & Ors. Vs. Ramsing D. Jadhav, 2018

SCC Online Bom 2464. In this case it is held:-

“9] Finally, we are of the opinion that the recovery

sought to be made by the petitioners was contrary to the
principles laid down by the Hon'ble Supreme Court in case
 31 O.A.No. 66 of 2022

State of Punjab and ors vs. RafiqMasih (White Washer) and

ors. - (2015) 4 SCC 334. In this case, the Hon'ble Supreme
Court has given instances of hardship which would govern the
employees on the issue of recovery, where payments have
mistakenly been made by the employer, in excess of their
entitlement. There is no clarity as to whether the respondent
belongs to Class -III or Class-IV service. There is also no clarity
as to whether the order of recovery was made when
respondent was due to retire within one year, of the order of
recovery. However, from the facts in the present case, it is clear
that the recovery relates to alleged excess payments made for
a period in excess of five years, before the order of recovery
was issued. Further, the recovery relates to the case where the
respondent was 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. In
the present case, the petitioners themselves appointed the
respondent to work as IRM. The respondent has actually
worked as IRM and the additional payment is paid for
discharging such duties as IRM.”

24. Mohan Motiramani & Ors. Vs. Union of India & Ors.
2018 SCC Online Bom 2472. In this case it is held:-

“10] However, insofar as the issue of recovery is

concerned, we agree with the contention of learned counsel for
the petitioners that this is not a case of over payment or in any
case, this is not a matter where the so called over payment is
relatable to any fraud or misrepresentation on the part of the
petitioners. Taking into consideration the posts held by the
 32 O.A.No. 66 of 2022

petitioners, we apply the principles laid down by the Hon'ble

Supreme Court in case of State of Punjab and ors vs.
RafiqMasih (White Washer) and ors. - (2015) 4 SCC 334 and
restrain the respondents from recovering any amounts already
paid to the petitioners in pursuance of the seniority position
prior to its revision.”

25. Government of Maharashtra & Ors. Vs. Shri Vilas N.

Patil, 2018 SCC Online Bom 7332. In this case it is held:-

“5. The record indicates that benefit of TBPS scheme

was granted to the respondent way back in the year 1994. At
the stage when, the respondent was on the verge of retirement,
based upon the tentative objections raised by AGP, some time
in the year 2013, it was really not open to the petitioners to
conclude that there was some mistake and as a consequence,
the respondent had received additional benefit of Rs. 85,545/-.
Secondly, the MAT has taken note of cases of other employees
placed in identical positions, where, no such correction, so to
say, was sought to be effected. Thirdly, the MAT has quite
correctly, relied upon the ruling of the Hon’ble Supreme Court
in State of Punjab Vs. Rafiq Masih (White Washer), (2015) 4
SCC 334, to hold that it would be extremely iniquitous to
permit any recoveries at the stage, where the respondent had
already retired from the service or was on the verge of
retirement from service. The petitioners have not only violated
the principles of natural justice and fair play, but also, their
action is contrary to the principles laid down by the Hon’ble
Supreme Court in the case of Rafiq Masih (supra).”
 33 O.A.No. 66 of 2022

26. Dudhale Ramdas Krushna Vs. Administrative

Officer and Another, 2018 SCC Online Bom 14034. In this
case order of ad-interim relief was passed in view of ‘Rafiq
Masih’ (supra) prohibiting recovery.

27. Smt. Nilam Shripad Naik Vs. State of Maharashtra

and 2 Ors. In this case it is held :-

“Having regard to the attendant facts, especially the

absence of the undertaking qua the particular fixation of pay,
in the non-functional pay scale, w.e.f. 04th February, 2006 even
the applicability of the proposition (ii), in the case of Rafiq
Masih (supra), cannot be eschewed from consideration.
Proposition (iii) is also attracted as the excess payment was
made from July, 2010 onwards. Thus, the said excess payment
continued for more than five years. In the peculiar facts of the
case, as the recovery in question operated rather harshly upon
the petitioner in the backdrop of the expenses which the
petitioner was required to incur for the treatment of her
husband, proposition (v) is also attracted.”

28. Devidas Vs. State of Maharashtra & Ors., 2021 SCC

Online Bom 313: (2021) 2 Bom CR 856: (2021) 5 Mah LJ
400. In this case the petitioner was a Class-III employee.
Hence, by relying on Clause (i) in the case of Rafiq Masih
(supra) recovery was held to be bad.

29. Thomas Daniel Vs. State of Kerala & Ors. Civil

Appeal No. 7115 of 2010. In this case it was held:-

“(14) Coming to the facts of the present case, it is not

contended before us that on account of the misrepresentation

 34 O.A.No. 66 of 2022

or fraud played by the appellant, the excess amounts have

been paid. The appellant has retired on 31.03.1999. In fact, the
case of the respondents is that excess payment was made due
to a mistake in interpreting Kerala Service Rules which was
subsequently pointed out by the Accountant General.

(15) Having regard to the above, we are of the view that an

attempt to recover the said increments after passage of ten
years of his retirement is unjustified.”

9. Respondents, on the other hand, have relied on the following

rulings:-

1. High Court of Punjab & Haryana & Ors. Vs. Jagdev

Singh, (2016) 14 SCC 267. In this case principles laid down
in Rafiq Masih were considered. It was observed:-

“11. 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 an undertaking while opting
for the revised pay scale. He is bound by the undertaking.”

2. Walmik S/o Sitaram Sirsath Vs. State of

Maharashtra & Ors. In this case the petitioner had executed
undertaking. It was held:-

“15. 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
 35 O.A.No. 66 of 2022

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.”

3. Ananda Vs. State of Maharashtra & Ors., 2021 SCC

Online Bom 2549. In this case it is held:-

“10. We have a similar case in hand. The petitioner has

specifically given an undertaking prior to his retirement that
if he has received any amount in excess to what he was
legitimately entitled to, the said amount would be repaid or
can be recovered. Such undertaking, if ignored, would be
reduced to the value of a waste paper. An undertaking has it's
own meaning and effect. If an undertaking is not to bind a
person issuing it, there would be no sanctity to an
undertaking. We cannot accept such an argument canvassed
by an employee that an undertaking is a mere formality and
should be ignored, lest, we ourselves would be party to
neutralising the value of an undertaking.”

4. Surjit Kumar Vs. Union of India & Ors. 2020 SCC

Online CAT 1868.In this case it is held:-

“The Hon‟ble Apex Court in the case of HIGH COURT OF

PUNJAB & HARYANA & OTHERS VS. JAGDEV SINGH reported
in (2016) 14 SCC 267 has held that recovery is permissible. In
this case, the court held that "The principle enunciated in
proposition (ii) above cannot apply to a situation such as in
 36 O.A.No. 66 of 2022

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 an
undertaking while opting for the revised pay scale. He is bound
by the undertaking.". It was also argued that even at earlier
point of time granting the applicant financial up-gradation, an
undertaking was taken from him. The respondents have
pleaded and annexed undertaking dated 7.5.2018 in which
that applicant had given in writing to make recovery if any
mistake is found later on in fixation of pay and that being so,
we do not find any fault in action of respondents, more so
when he has retired as a Group B officer.”

5. Mandeep Singh Kohli & Ors. Vs. Union of India &

Ors., 2021 (1) Mh.L.J., 370. In this case it is held:-

“12. These petitioners have suppressed the fact from this

Court that each of them had executed an undertaking. After
the respondents exposed the petitioners through their
affidavit-in-reply by placing the undertakings on record that
the petitioners have tried to cover up by filing a rejoinder.
They admit for the first time that they had actually issued
undertakings binding themselves to refund the amount.
Considering the above, we would first prefer to deal with the
issue of suppression of fact and the attempt made by the
petitioners to mislead this Court when the first order was
passed by this Court on 27-04-2017.

14. It is, thus, apparent in view of the crystallized law

that if an employee tenders an undertaking binding himself to
 37 O.A.No. 66 of 2022

refund the excess amounts if he is subsequently found dis-

entitled, recovery of such amounts cannot be set aside. This
judgment has been delivered on 29-07-2016.

19. We find that the petitioners have shrewdly

suppressed the information that they have tendered individual
undertakings to the respondent Management permitting them
to recover the excess amounts from their salaries or retiral
benefits. This would indicate that they were prepared for
recovery of excess amount even post-retirement as they
declared that the Management could recover it even from
their retiral benefits. The intent and object of the petitioners in
suppressing such material facts was that our decision would
have surely turned in favour of the petitioners if there would
have been no undertakings on record keeping in view the law
laid down in the matters of Syed Abdul Qadir (supra) and
Rafiq Masih (supra). If undertakings were tendered by the
petitioners, these two judgments, would not have applied to
their cases and they would have been squarely covered by the
view taken by the Hon'ble Apex Court in the case of Punjab and
Haryana High Court and others vs Jagdev Singh (supra). The
petitioners, therefore, stood to gain a big advantage by
suppressing the material information and this, in our
considered view, is an act aimed at misleading us with the
intent and object of getting favourable orders from this Court.
In this fact situation, the petition deserves to be dismissed
considering the law laid down in Kishore Samrite (supra) and
Bhaskar Laxman Jadhav and others (supra).”
 38 O.A.No. 66 of 2022

6. Hai Mujahid Ekbal Abdul Siddiqui Vs. State of

Maharashtra & Ors. 2021 SCC Online Bom 3418(2021) 6
AIR Bom R 820. In this case it is held:-

“6. It is undisputed that the petitioner is in

employment and the employer initiated the action of recovery
of excess amounts paid, by the order dated 18.11.2019 when
he had almost five years for retirement. So also, the petitioner
has conspicuously suppressed the fact of having executed an
undertaking in unequivocal terms that he would refund the
excess amounts if such excess payments are detected either in
the payment of the pay scale or under any head. The Hon’ble
Apex Court had dealt with cases of suppression of material
facts which are likely to affect the conclusion in a matter, in
Bhaskar Laxman Jadhav Vs. Karmveer Kakasaheb Wagh
Education Society, (2013) 11 SCC 531 and in the matter of
Kishore Samrite Vs. State of Uttar Pradesh, (2013) 2 SCC 398.

9. It is therefore, trite that it is not for a litigant to

filter the facts to be narrated to the court. He is duty bound to
narrate the entire facts and is expected not to suppress
anything from the court. If certain factors which would have a
close nexus or bearing on the outcome of the case and are
germane to the cause of action are suppressed, such
suppression shall tantamount to a litigant attempting to
mislead and misrepresent the court for self serving purposes.
The Hon’ble Apex Court has, therefore, ruled that such a
litigant should be deprived of any relief, even if he may have an
arguable case in hand.”
 39 O.A.No. 66 of 2022

7. Vijay Sambrao Bharati Vs. State of Maharashtra &

Ors., 2018 (5) Mh.L.J., 316. In this case the employee joined
Government department as Class-II employee and reached
upto class-I post. Only due to order of Superintending
Engineer he could get post of Executive Engineer. As per
Rules, he could not have been confirmed even on the post of
Deputy Engineer and could not have continued to get
increments. However, he continued to get increments and
got the post of Executive Engineer. It was held that this was
not merely a mistake but there was also a clear possibility of
mischief and hence re-fixation of pay-scale and recovery of
excess payment was permissible.

8. Z.H.Lamak Vs. Accountant General-II, (A & E)

Maharashtra, Nagpur & Ors., 2012 (6) Mh.L.J.,341. In this
case, on the following facts, recovery was held to be neither
unjust nor illegal:-

“Petitioner Lecturer who was placed on the post of

Lecturer in ‘English’ in 1997 was never placed in senior scale
and was directly placed in next higher grade i.e. Selection
Grade and was continued in the said scale till she reached the
age of superannuation on 30.06.1995. The scheme is very
clear. The excess amount was not received by the petitioner
without noticing it. The fact that she was not fixed in senior
scale, could not have escaped her attention. Thus, release of
selection grade directly to her in violation of Government
Resolution dated 27.02.1989, cannot be attributed only to
inadvertence or negligence on the part of the Government
Officers. The amount to which the petitioner was not entitled,
 40 O.A.No. 66 of 2022

has been received by her and its recovery cannot be said to be

either unjust or illegal.”

10. In all the rulings relied upon by the applicant as well as the
respondents the question as to whether recovery of excess payment was
permissible was answered keeping in view the following circumstances:-

1. To which class/grade did the applicant belong?

2. Whether the applicant had retired, or his retirement

was less than a year away or he was still in service when the
recovery was proposed?

3. At what point of time recovery was proposed?

Whether it was proposed without loss of time or there was
inordinate delay?

4. Whether the proposed recovery could be termed

either iniquitous or harsh?

5. Whether the applicant had resorted to

misrepresentation or fraud to secure an unmerited reward?

6. Whether there were circumstances to show that an

inference of the applicant having knowledge of payment in
excess received by him could be drawn?

7. Whether conduct of the applicant was aboveboard so

that he could not be deprived of equitable relief of protection
from recovery?

8. If the applicant had given an undertaking that he

would refund the amount received in excess, to what extent
 41 O.A.No. 66 of 2022

his entitlement to equitable relief of protection from

recovery was taken away?

9. What would be the effect of suppression of material

fact like execution of an undertaking for refunding the
amount received in excess?

The aforementioned criteria will have to be applied to the

following facts of the case to find out whether the applicant would be
entitled to relief of protection from recovery.

1. The applicant served on the establishment of P.W.D.

from 08.12.2000 to 30.12.2012.

2. On 31.12.2012 he was absorbed on a permanent basis

on the establishment of National Highway Authority of India.

3. The order of his absorption (A-2) clearly spelt out that

he was eligible for pensionary benefits as per the provisions
of Rules 67 of the Maharashtra Civil Services (Pension)
Rules, 1982.

4. A conjoint reading of Rules 66 and 67 of the

Maharashtra Civil Services (Pension) Rules, 1982 makes it
clear that the pro rata pension admissible in respect of
services rendered earlier under the different department
was disbursable only from the date the Government servant
would have normally superannuated had he continued in
service. Considering the fact that the applicant had started
his service with P.W.D. on 08.12.2000 he would have
superannuated on 08.12.2020 had he continued in service, in
view of Rules 66 of the Maharashtra Civil Services (Pension)
 42 O.A.No. 66 of 2022

Rules, 1982. Therefore, 08.12.2020 was the date from which

he became entitled to get pension (from his previous
employer).

5. In admissibility report (A-3) prepared by respondent

no. 2 it was mentioned that pension would become payable
w.e.f. 01.01.2013.

6. On 27.05.2015 admissibility report was prepared by

respondent no. 2 (A-R-1). In this report it was clearly
mentioned that the applicant was entitled to get pension
w.e.f. 08.12.2020. It may be mentioned that till this point of
time pension was not disbursed.

7. In pension order dated 28.01.2021 (A-4) the date of

commencement of pension was again (wrongly) mentioned
to be 01.01.2013.

8. On 20.02.2021 i.e. within less than one month of

issuance of pension order dated 28.01.2021, the applicant
executed an undertaking (A-R-3-4) that he would refund
excess payment of pension, if so made. The applicant
suppressed this fact as it was brought on record by
respondent no. 3.

9. Amount of arrears of pension calculated on the basis

that it was payable w.e.f. 01.01.2013 was credited to the
savings bank account of the applicant on 27.07.2021 which
came to Rs. 22, 69, 697/- (A-5).

10. Less than four months thereafter respondent no. 2

issued the impugned letter dated 25.11.2021 (A-1) that
 43 O.A.No. 66 of 2022

excess payment was made on account of wrong fixation of

date of commencement of pension i.e. 01.01.2013 instead of
08.12.2020, and it was to be adjusted/ recovered.

11. A-1 was then followed by the impugned

communication dated 20.01.2022 (A-8) made to the
applicant by respondent no. 3.

11. Facts have been set out in the preceeding paragraphs

chronologically. Now, it may be seen whether case of the applicant falls
in any of the clauses stipulated in Rafiq Masih (Supra). The applicant is
Class-II/Group-B employees. Hence, Clause (i) is not attracted. He had
given an undertaking that he would refund the excess amount, if
received towards pension, therefore, in view of Jagdev Singh (Supra)
Clause (ii) would not be attracted. The applicant executed the
undertaking on 20.02.2021. Thereafter, on 27.07.2021 amount of arrears
of pension was credited to his savings bank account in lump sum. Order
of recovery was issued within four months thereafter. Therefore, Clause
(iii) will not be attracted. Cause of action to initiate recovery arose in this
case on account of wrong fixation of date of commencement of pension
and hence Clause (iv) will not be attracted. In this case arrears of pension
were paid on 27.07.2021 and action for recovery was initiated on
25.11.2021. Under such circumstances recovery would be neither
iniquitous nor harsh or arbitrary to such an extent as would far outweigh
the equitable balance of the employer’s right to recovery, so as to attract
Clause (v). Apart from this, suppression of undertaking would clearly go
against the applicant disentitling him to equitable relief of protection
from recovery. For all these reasons the application fails. Hence, the
order:-
 44 O.A.No. 66 of 2022

ORDER

1. Original Application is dismissed.

2. The respondents, while effecting recovery, shall take into account

calculation given by the applicant in this proceeding regarding the net
amount to be recovered, rework such amount if necessary and then
proceed to recover the same.

3. No order as to costs.

Member (J)

Dated :-07/07/2022.
aps

Later on:-
After pronouncement of the Judgment, ld. Counsel for the
applicant Shri Pathak prayed that effect and implementation of this
order be kept in abeyance for a period of two weeks from today. Ld. P.O.
Shri Khan opposed the prayer. However, I have come to the conclusion
that the prayer deserves to be granted. Hence, effect and implementation
of this order is kept in abeyance for a period of two weeks from today.

Member (J)

Dated :-07/07/2022.
aps
 45 O.A.No. 66 of 2022

I affirm that the contents of the PDF file order are word to word same as per
original Judgment.

Name of Steno : AkhileshParasnath Srivastava.

Court Name : Court of Hon’ble Vice Chairman.

Judgment signed on : 07/07/2022.

and pronounced on

Uploaded on : 08/07/2022.