Allowed

Babulal Rama Thakre v. Work Load Committee and Ors.

Bombay HC24 Nov 2014WP/3190/2003

Case brief

AI extract

What is this about?

Petitioner challenged recovery of excess pay alleged due to double exercise of option under Bhole Pay Commission. High Court held hindrance existed due to termination and reinstatement. Citing SC precedents on bona fide mistakes and undue hardship, Court quashed recovery orders and directed refund.

What did the court decide?

Quashed orders dated 6th May 2002, 18th May 2002 and 30th June 2003; directed refund of recovered amount to Petitioner within three months.

Babulal Rama Thakre Vs Work Load Committee… — Pension and Retirement Benefits | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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 WRIT PETITION NO.3190 OF 2003

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Babulal Rama Thakre,
Age-58 years, Occu:Service,
R/o-Tamaswadi, Tq-Parola,
Dist-Jalgaon

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...PETITIONER

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1) Work Load Committee, Zilla Parishad, Jalgaon,

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2) Deputy Director of Education, Nashik Division, Office of LIC Colony, Nashik,

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3) Senior Auditor, Education Department, Zilla Parishad, Jalgaon,

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4) Nagrik Shikshan Mandal's Secondary School Tamaswadi, Tq-Parola, Dist-Jalgaon, Through Head Master, 5) State of Maharashtra, Department High Education, Mumbai, Through Secretary.

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...RESPONDENTS

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 ...
 Shri S.V. Natu Advocate for Petitioner.
 Smt. S.D. Shelke, A.G.P. for Respondent
 Nos. 1 and 3.
 Shri P.R. Patil Advocate for Respondent
 Nos.2 and 4.

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...

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CORAM: A V. NIRGUDE AND
 A.I.S. CHEEMA, JJ.

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DATE OF RESERVING JUDGMENT : 26TH SEPTEMBER,2014.
 DATE OF PRONOUNCING JUDGMENT: 24TH NOVEMBER, 2014

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JUDGMENT [PER A.I.S. CHEEMA, J.]:

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1.Petitioner Babulal Thakre was working as
Assistant Teacher with Respondent No.4. Respondent
No.3 – Senior Auditor of Education Department

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while verifying revision of pay-scale as per 5th
Pay Commission in 2002, raised objections that in
1979 there was wrong fixation of pay and directed
recovery. Hence the Petition.

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2.Facts can be stated in brief as follows:

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(A).Petitioner claims that he was appointed

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as Assistant Teacher in the High School at
Tamaswadi, of Respondent No.4 on 12th June 1974.
Pay-scale of the staff was revised under Badkas
Pay Commission vide Government Resolution dated
19th January 1976, with effect from 1st April 1974.
Respondent No.4 – School suspended the Petitioner
on some charges, from 16th September, 1976. He was
reinstated on 1st April 1977. Again the School
terminated the Petitioner on 11th June 1977.
Petition shows various authorities moved by the
Petitioner and the matter was carried to High

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Court in Writ Petition No.1399 of 1979. Petitioner
succeeded and he was reinstated on 12th November
1979. Thus Petitioner was terminated on 11th June

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1977 and got reinstated on 12th November 1979. In
between, on 29th April 1978 Government Resolution

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was issued applying Bhole Pay Commission to the
employees of Government and Non -Government
Schools, w.e.f. 1st April 1976. Petition refers to
Government Resolution dated 29thApril 1978

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(relevant extract Exhibit A) and Government
Resolution dated 2nd August 1978 (Exhibit A-1) and
it is claimed that as per the G.R.s option was to
be exercised by the employees within three months
to fix their pay in revised pay-scales and in the
absence of declaration, the employees were to be
deemed to have elected the revised scales of pay
w.e.f. 1st April 1976. The schools were directed to
bring the contents of the G.R.s to the notice of
the employees whether on duty, leave, deputation
or under suspension and to advise them to declare
their options. The Petitioner, however, was at the

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relevant time, out of employment and thus there
was no question of his exercising option till he
got reinstated on 12th November 1979. Petition
claims that within three months of joining his
duties, Petitioner exercised his option for
application of Bhole Pay Commission w.e.f. 12th
June 1977, the date of his termination by
Respondent No.4. His pay-scale was accordingly
fixed and the same was verified by Senior Auditor

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vide orders dated 26th March 1980.

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(B).According to Petitioner the Government of

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Maharashtra applied 4th Pay Commission w.e.f. 1st
January 1986 vide orders dated 2nd September 1988

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and his pay-scale was fixed after revision, which
was verified by Deputy Director of Education
(Respondent No.2). Later, under G.R.'s dated 2nd
September 1989 and 15th January 1990, Respondent
No.4 School Committee vide order dated 4th March
1990 sanctioned Senior Grade to Petitioner w.e.f.
1st June 1986. Even this was verified and certified

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by Senior Auditor of Education Department,
Jalgaon. Petitioner has filed Exhibits B to D in
support of such fixation and verification of pay-
scales.

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(C ). It is further case of Petitioner that
vide G.R. Dated 13th May 1999, 5th Pay Commission

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was applied and Respondent No.4 granted Selection
Grade to the Petitioner in the 5th Pay Commission

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w.e.f. 1st January 1996 but the same was yet to be
verified. Petitioner was again suspended on 1st
June 2000 by Respondent No.4 but as per orders in
Writ Petition No.2936 of 2000, he got reinstated

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on 2ndDecember 2000. Service Book of the

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Petitioner was sent for verification to Respondent
No.3 – Senior Auditor by Respondent No.4. On this
occasion, Respondent No.3 raised objections that
while applying Bhole Pay Commission, option was

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exercised twice, which was not permissible.
Respondent No.3 called explanation of Respondent
No.4 and Respondent No.4 vide letter dated 12th

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March 2001 informed that option was not exercised
twice. However, Senior Auditor – Respondent No.3
reported to Deputy Director of Education
(Respondent No.2) that pay fixation under Bhole
Pay Commission was wrongly done and explanation of

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Petitioner was taken and the Deputy Director of
Education informed Respondent No.1 – Work Load

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Committee. The Committee directed Respondent No.3
to recover excess payment from Petitioner and

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Respondent No.2 issued letter dated 6th May 2002
(Exhibit J) in this regard. Respondent No.2 vide
letter dated 18th May 2002 (Exhibit K) directed the
School (Respondent No.4) to calculate and recover
excess payment and submit proof. Respondent No.4
calculated dues of Rs.74,492/- and the amount is
sought to be recovered. Thus, the present Petition
was filed seeking quashment of letters Exhibit J

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and K as well as order dated 30th June 2003
(Exhibit L) vide which the difference was
calculated.

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3.When the Petition was filed and Rule was
issued on 30th September 2003, it was directed that
recoveries, if made, pursuant to the impugned

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communication shall be subject to the final
decision in this Petition.

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4.The Respondents (1 to 3 and 5) filed

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affidavit in reply dated 12th November 2003. The
School has not filed affidavit. We will refer to

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Respondent Nos. 1 to 3 and 5 as Respondents. As
per the affidavit in reply, the Petitioner was
under suspension on 1st April 1976 and he was
reinstated on 12th November 1979. He opted for
revision of pay w.e.f. 1st April 1976 as per G.R.
dated 29th April 1978, within period of three
months from date of reinstatement (dated 12th
November 1979). After that the Head Master being
competent authority, fixed the revised pay w.e.f.
1st April 1976 at the stage of Rs.290/-. The Senior
Auditor verified this pay fixed vide remarks dated
29th December 1979, in the service book. Exhibit
R-1 with extract from Service Book is filed in
support. According to Respondents, Petitioner
exercised second and new option for revision of
pay w.e.f. 12th June 1977 on the basis of which his
revised pay w.e.f. 12th June 1977 at the stage of
Rs.340/- was fixed by the Head Master and verified
by Senior Auditor on 26th March 1980. In this

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regard, copy of relevant page from Service Book,
with Exhibit R-2 has been filed. Respondents

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claimed that vide G.R.'s dated 29th April 1978 and
2nd August 1978 it was made clear that option once

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exercised was final and thus according to
Respondents second time option could not have been
exercised. The verification by Senior Auditor on
26th March 1980 was not on the basis of first
original option but on second new option, which
was not permissible. Subsequent pay fixation done
under the 4th Pay Commission was on the basis of
the earlier pay fixation done which was not
correct. When the case was received for
verification under the 5thPay Commission,
Respondents noticed the error and thus objections
were raised and after giving opportunity to the
Petitioner, orders were passed regarding recovery
as claimed. The provisions of G.R. dated 3rd August
2001 are applicable to State Government employees

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only and are not applicable to Petitioner being
in Non Government secondary school. Respondents

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claim that on 30th November 1989 (i.e. after 4th Pay
Commission) Petitioner had given undertaking that

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if there is any excess payment, the same could be
recovered. The defence of the Petitioner was not
accepted by Regional Task Force, referred to by
Petitioner as Work Load Committee.

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5.Vide rejoinder dated 26th September 2014

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Petitioner has countered the affidavit in reply
claiming that it is wrong for Respondents to claim
that he had exercised option for revision of pay

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w.e.f. 1st April 1976. According to him, revision
of pay as reflected in Page No.74 (Exhibit R-1)
was done, in default, during period of his
termination which is prior to 12th November 1979,
which was duly verified by Senior Auditor of
Education on 29th December 1979. According to
Petitioner, after reinstatement on 12th November
1979 he has exercised the option for first time to

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fix his pay as on 12th June 1977 which was the date
of his termination and accoring to him, he has

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exercised this option within three months from
reinstatement as per the G.R. dated 29th April

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1978. This option was rightly exercised and the

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earlier endorsement of pay fixation on 1st April
1976 was cancelled as it was contrary to G.R.
dated 29th April 1978. The Petitioner is pointing
out that in the endorsement below Exhibit R-2
there is endorsement “as per option”, which is
missing if the relevant portion in Exhibit R-1 is
perused. After the endorsement as seen below
Exhibit R-2, verification of pay was done three
times by Senior Auditors and thus it cannot be
said that Petitioner has illegally exercised
option.

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6.We have heard learned counsel for both
sides who have vehemently supported the above
respective cases of parties. According to
learned counsel for Petitioner when Bhole Pay
Commission was applied, Petitioner was out of job
and exercised option only once after reinstatement

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and opted for date of 12th June 1977 and all
subsequent pay fixations are on this basis and

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position cannot be reversed after 2 decades to
take away benefits flowing from the fixation as to
order recoveries. Counsel for Respondents however
claims that recovery is legal and permissible due
to wrong fixation and payment.

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7.Government Resolution dated 29th April
1978 (relevant extract – Exhibit A – Page 18)
shows that the option regarding revised pay scale
was to be exercised within three months of the
date of issue of the Resolution. If the option was
not exercised, the employee was deemed to have
elected the revised scale of pay w.e.f. 1st April
1976. Para 4(1)(i) and (ii) of the said Government
Resolution read as under:

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“ 4. Exercise of option :

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(1) The option under proviso to para 3
shall be exercised in writing in the form
annexed to this Resolution (Annexure I) so
as to reach the authority mentioned in sub

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para (2) below within three months of the
date of issue of this resolution or where
an existing scale has been revised by an
order issued subsequent to that date,
within three months of the date of such
order provided that -

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(i ) In the case of an employee who is on
that date on leave or deputation on foreign
service, the said option shall be exercised
in writing so as to reach the said
authority within three months of the date
of his return from leave or repatriation
from deputation or foreign service and

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(ii) where an employee was under suspension
on the 1st April 1976 the option may be
exercised within three months of the date
of his return to duty if that date is later
than the date prescribed in this sub para.”

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.It is clear that this did not cover the
case of the Petitioner who was already terminated

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on 12th June 1977 when this Government Resolution
dated 29th April 1978 got issued. He was reinstated
only on 12th November 1979 after orders in the Writ

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Petition which he had filed. Exhibit R-3 (page 79)
filed by the Respondents is letter dated 7th
December 2001 which was sent by the School –
Respondent No.4. It shows ( at page 80) that there

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was no clarity regarding what is to be done
regarding employee like the Petitioner and so
stamp regarding his pay fixation got put on the
service book and it was done after orally
consulting the Senior Auditor. The letter in
further part is that the pay fixation w.e.f. 12th
June 1977 was done accepting the option exercised.
In this regard letter dated 12th March 2001

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(Exhibit F - Page 46) of the Respondent No.4 –
School is much more clear which in no uncertain
terms records that option was not exercised twice
and the option exercising pay revision from 12th
June 1977 was correct. The Petitioner has rightly
argued that in Exhibit R-1 the fixation of pay
read with the extract from service book does not

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show that it was on the basis of any option
exercised, something which is mentioned with the

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stamp of pay fixation done at Exhibit R-2 where
also service book extract is attached. In the
service book extract with Exhibit R-2 (at page 77)
with the stamp regarding pay fixation, words are
added “as per option”. Although the Respondents
claim that option was exercised twice but there is
no document to show that on the earlier occasion
any option in writing as per G.R. was filed by the
Petitioner. The affidavit in reply vaguely
mentions (in Para 4) that the deponent opted for
revision of pay w.e.f. 1st April 1976. Nothing in
support has been filed except making reference to

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Exhibit R-1. Petitioner has rightly argued that
earlier stamp put by the Head Master in the
service book was not on the basis of any option
exercised by the Petitioner. It is rightly argued
that the Petitioner was not in service at the

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particular time and exercised option only after
being reinstated on 12th November 1979.

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9.As mentioned, the letter dated 7th

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December 2001 (Exhibit R-3 – Page 79) clearly
shows that the Head Master was having confusion
regarding what to do with regard to matter like
the present Petitioner and the G.R. (Exhibit A-
Page 18) dated 29th April 1978 did not deal with
situation of employee like Petitioner who was
litigating termination and got reinstatement
subsequently. In such situation, if the Respondent
No.4 and then Auditor accepted cancellation of the

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earlier endorsement put in the service book
(Exhibit R-1) and accepted pay revision as per
subsequent endorsement (Exhibit R-2), it would not

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be appropriate to reopen the topic after more than
20 years. Record does show that after the pay
revision endorsement dated 26th March 1980 (Exhibit
R-2), the same pay revision of Petitioner was also

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acted upon and further accepted when 4th Pay
Commission was introduced and implemented. There
is no justification for belated act of the
Respondents in May, 2002.

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10.Learned counsel for the Petitioner relied

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on the case of Syed Abdul Qadir and others vs.
State of Bihar and others, reported in 2009(3)

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S.C.C. 475.. In that matter at the time of
revision of pay-scale certain additional
increments on promotion to higher post were given.
The same were later tried to be recovered as
wrongly paid. In Para 28 of the Judgment, Hon'ble
Supreme Court observed as under:

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“28. Undoubtedly, the excess amount
that has been paid to the appellants –
teachers was not because of any
misrepresentation or fraud on their part
and the appellants also had no knowledge
that the amount that was being paid to
them was more than what they were
entitled to. It would not be out of
place to mention here that the Finance
Departmenthad,initscounter
affidavit, admitted that it was a bona
fide mistake on their part. The excess
payment made was the result of wrong
interpretation of the rule that was

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applicable to them, for which the
appellants cannot be held responsible.
Rather, the whole confusion was because
of inaction, negligence and carelessness
of the officials concerned of the
Government of Bihar. Learned counsel
appearing on behalf of the appellants-
teachers submitted that majority of the
beneficiaries have either retired or are
on the verge of it. Keeping in view the
peculiar facts and circumstances of the
case at hand and to avoid any hardship
to the appellants- teachers, we are of
the view that no recovery of the amount
that has been paid in excess to the
appellants- teachers should be made. ”

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11.Reliance is also placed on the case of
Kusheswar Nath Pandey vs. State of Bihar and
others, reported in 2013(12) S.C.C. 580. In that
matter appellant was given time bound promotion
and after 11 years the authorities woke up to
claim that the time bound promotion was wrongly
given, relying on the rules. Learned Single Judge
of the High Court allowed writ petition holding

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that the time bound promotion granted to the

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appellant 11 years earlier was not because of any
fault or fraudulent act on the part of the
appellant and therefore could not be cancelled. In
appeal, the Division Bench of the High Court set

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aside the Judgment of the learned Single Judge. In
Appeal to the Hon'ble Supreme Court, the counsel
for appellant relied upon Judgments of the Hon'ble
Supreme Court in the case ofBihar State

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Electricity Board and another vs. Bijay Bhadur and

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another reported in (2000) 10 S.C.C. 99 and the
case of Purushottam Lal Das and others vs. State

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of Bihar and others, reported in (2006) 11 S.C.C.
492 where it was held that recovery could be
permitted only in such cases where the employee
concerned is guilty of producing forged
certificate for the appointment or got the benefit
due to misrepresentation. Hon'ble Supreme Court
observed in Para 10 and 11 as under:

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“10. In our view, the facts of the
present case are clearly covered under
the two Judgments referred to and relied
upon by Mr. Rai. The appellant was not
at all in any way at fault. It was a
time bound promotion which was given to
him and some eleven years thereafter,
the Authorities of the Bihar Government
woke up and according to them the time
bound promotion was wrongly given and
then the relevant rules are being relied
upon and that too after the appellant
had passed the required examination.

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11. In our view, this approach was
totally unjustified. Learned Single
Judge was right in the order that he has
passed. There was no reason for the
Division Bench to interfere. The Appeal
is therefore allowed. The Judgment of
the Division Bench is set aside. The
writ petition filed by the appellant
will stand decreed as granted by the
learned Single Judge. The parties will
bear their own costs.”

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Keeping in view the Judgments of the

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12.

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Hon'ble Supreme Court as above and comparing and
considering facts of the present matter, we have
no doubts that the acts of the Respondents
attempting to claim that option was exercised
twice while applying Bhole Commission, cannot be
justified.

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13.We hold and direct that the Respondent
Nos. 1 to 5 cannot be allowed to reopen the pay
fixation done of the Petitioner and which was
certified on 26th March 1980 (as per Exhibit R-2)
and the Petitioner cannot be deprived of
consequential benefits arising from the said pay
fixation in subsequent course of his service. The
present Writ Petition is allowed accordingly.
Recoveries, if any made, in this regard consequent
to impugned orders dated 6th May 2002 (Exhibit J),
18th May 2002 (Exhibit K) and 30th June 2003
(Exhibit L) shall be refunded to the Petitioner
within three months of this Judgment and order.

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.Rule made absolute on the terms indicated

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above.

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[A.I.S.CHEEMA,J.] [A.V. NIRGUDE, J.]
asb/OCT14

Babulal Rama Thakre v. Work Load Committee and Ors.

Case brief

What is this about?

What did the court decide?

Babulal Rama Thakre v. Work Load Committee and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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