Dilip Vitthal Mahale v. The State Of Maharashtra Through Its Secretary And Others

1 911-WP-5041-2023&Ors.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD.

WRIT PETITION NO. 5041 OF 2023 Shalini Mitharam Bhangale

...Petitioner

Versus

The State of Maharashtra & Ors.

...Respondents

Mr. S. P. Tiwari - AGP for respondent/State 912 WRIT PETITION NO.5042 OF 2023 INDU JAGDISH KURKURE Mr. S. P. Tiwari - AGP for respondent/State 914 WRIT PETITION NO.5047 OF 2023 ANIL MADHAV FEGADE Mr. S. K. Tambe - AGP for respondent/State

2 911-WP-5041-2023&Ors.odt 915 WRIT PETITION NO.5050 OF 2023 DILIP VITTHAL MAHALE Mr. S. K. Tambe - AGP for respondent/State 917 WRIT PETITION NO.5055 OF 2023 VASANTI GOPAL NIMBHORKAR THE STATE OF MAHARASHTRA THROUGH ITS SECRETARY Mr. V. M. Kagne - AGP for respondent/State 918 WRIT PETITION NO.5057 OF 2023 PADMINI CHANDRASEN TAYADE Mr. V. M. Kagne - AGP for respondent/State

3 911-WP-5041-2023&Ors.odt 919 WRIT PETITION NO.5059 OF 2023 DEOYANI HIRAMAN CHAUDHARI Mr. S. G. Karlekr - AGP for respondent/State 922 WRIT PETITION NO.5073 OF 2023 VINITA BHAGWAT DHANDE Mr. S. G. Karlekr - AGP for respondent/State 923 WRIT PETITION NO.5074 OF 2023 SUDHAKAR LAXMAN TAYADE Mr. S. G. Karlekr - AGP for respondent/State

4 911-WP-5041-2023&Ors.odt 924 WRIT PETITION NO.5079 OF 2023 SHAILEJA HOMAKANT PATIL ALIAS SHAILA LILADHAR CHAUDHARI Mr. V. M. Kagne - AGP for respondent/State CORAM : RAVINDRA V. GHUGE SANJAY A. DESHMUKH, JJ.

DATED : 02nd MAY 2023 PER COURT : - 1.

The learned Advocate for the Petitioners has tendered a ready reference chart indicating the names of the Petitioners, Writ Petition numbers and other details. The same is taken on record and marked as "X" for identifcation.

2.

All these Petitioners are identically placed. All of them are employees, who have superannuated from employment. All have been subjected to recovery of amounts, purportedly for the reason that the amounts that were paid to them towards their revised pay-scales in view of acquiring certifcates of MS-CIT almost a decade ago, were wrongly paid to them. In Writ Petition No. 5059 of 2023, the petitioner - Smt. Deoyani Hiraman Chaudhari has suffered recovery on the ground of MS-CIT, as well as wrong pay fixation.

5 911-WP-5041-2023&Ors.odt 3.

It is undisputed that these Petitioners were not personally involved in the revision of their pay scales. They were also not involved in manipulating such revision. There is no allegation of fraud or deceit against them. No undertaking was obtained from these Petitioners on the date when the pay scales were revised and the payment of revised pay scale commenced. In some cases, at the stroke of retirement, a condition was imposed that they should execute an undertaking and it is in these circumstances that an undertaking has been extracted. 4.

The learned Advocate representing the Zilla Parishad as well as the learned A.G.P., submit that once an undertaking is executed, the case of the Petitioners would be covered by the law laid down by the Hon'ble Supreme Court in the case of High Court of Punjab and Haryana and others vs. Jagdev Singh, 2016 AIR (SCW) 3523. Reliance is placed on the judgment delivered by this Court on 1.9.2021, in writ petition No. 13262 of 2018 fled by Ananda Vikram Baviskar Vs. State of Maharashtra and others.

5.

We have referred to the law laid down by the Hon'ble Supreme Court in High Court of Punjab and Haryana and others vs. Jagdev Singh (supra). The record reveals that no undertaking was taken from these Petitioners when the pay scales

6 911-WP-5041-2023&Ors.odt were revised. An undertaking from some of them was taken at the stroke of their retirement. An undertaking has to be taken from the candidate on the day the revised pay scale is made applicable to him and the payment of such pay scale commences. At the stroke of superannuation of the said employees, asking them to tender an undertaking, practically amounts to an afterthought on the part of the employer and a mode of compelling the candidate to execute an undertaking, since they are apprehensive that their retiral benefts would not be released until such undertaking is executed. Such an undertaking will not have the same sanctity of an undertaking executed when the payment of revised pay scale had commenced. We, therefore, respectfully conclude that the view taken in High Court of Punjab and Haryana and others vs. Jagdev Singh (supra) would not be applicable to the case of these Petitioners, more so since the recovery is initiated after their superannuation.

6.

Taking into account that these Petitioners were not involved in any mischief, fraud or deceit in orchestrating their wrongful pay revision, the law laid down by the Hon'ble Supreme court in Syed Abdul Qadir vs. State of Bihar and others, 2009

(3) SCC 475 and State of Punjab and other vs. Rafi Masih (White Washer) etc. (2015) 4 SCC 334 = AIR 2015 SC 696, would apply to these cases.

7 911-WP-5041-2023&Ors.odt 7.

As such, all these Petitions are allowed. The impugned orders are quashed and set aside. The amounts due and payable to the Petitioners, after the superannuation of the said candidates, would be paid to these Petitioners within a period of 90 days along with admissible interest as per Rules. [SANJAY A. DESHMUKH] [RAVINDRA V. GHUGE] JUDGE JUDGE SG Punde