High Court of Bombay dismissed a writ petition challenging the reduction of pension due to refixture of pay after discovery of illegal promotion. Court upheld recovery of excess amount under Pension Rules, noting the petitioner accepted illegal benefits.
Petitioner has none; excess recovery upheld; interim relief vacated.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 5198 OF 2013
Vijay Sambrao Bharati Age 62 years, Occu. Pensioner, R/o. Anand Nagar, Yogeshwari Complex, Flat No. 5, Nanded.
....Petitioner.
Versus
....Respondents.
Mr. D.R. Irale-Patil, Advocate for petitioner.
Mrs. D.S. Jape, AGP for respondent Nos. 1 to 3. Mr. D.P. Bakshi, Advocate for respondent No. 4.
WITH
CONTEMPT PETITION NO. 311 OF 2014 IN
WRIT PETITION NO. 5198 OF 2013
Smt. Vijay s/o. Sambrao Bharti, Age 62 years, Occu. Pensioner,
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R/o. Anandnagar, Yogeshwari Complex, Flat No. 5, Nanded, Tq. District Nanded. ....Petitioner.
Versus
....Respondents.
Mr. D.R. Irale-Patil, Advocate for petitioner. Mrs. D.S. Jape, AGP for respondent No. 1/State. Mr. D.P. Bakshi, Advocate for respondent No. 2.
CORAM : T.V. NALAWADE AND SUNIL K. KOTWAL, JJ. RESERVED ON : 04/04/2018 PRONOUNCED ON : 17/04/2018
JUDGMENT : [PER T.V. NALAWADE, J.]
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the Constitution of India to challenge the order of respondent
employer by which the pay which was fixed on the date of retirement is changed to reduce it and accordingly, pension payable to the petitioner is reduced. The order also involves recovery of excess amount paid to the petitioner. Direction is claimed against the respondent employer to see that the previous pay fixed at the time of retirement is restored and pension is given accordingly and the relief of injunction is claimed to prevent the respondent for recovery of excess amount. The contempt petition is filed by contenting that the order which can be said to be of interim nature made in Writ Petition No. 5198/2013 is not intentionally complied with by the respondent employer. Both the sides are heard.
The petitioner had joined the respondent department of the Government as Junior Engineer. He was given the promotion to the post of Deputy Engineer on 29.6.1991. As per the eligibility conditions for confirmation on the post of Deputy Engineer, it was necessary for the petitioner to pass professional examination which included many subjects. The time was also given for passing this
test as three years. The petitioner did not pass such test. The Superintending Engineer made order in the year 2004 to the effect
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that exemption was given to the petitioner from passing the professional examination which was requirement for getting confirmation on the post of Deputy Engineer. Though the order was made to see that the increments granted after three years of the date of promotion are withdrawn, infact it was not done and this order was treated as order of confirmation and exemption to professional examination.
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20.7.2004, it was presumed that the petitioner had become Deputy Engineer on 29.6.1991 and due to that as per the seniority fixed, he got the post of Executive Engineer on 11.8.2004. As he retired as Executive Engineer and as all the increments were released to him in the scale of Deputy Engineer right from 1991, he was given benefit of the Pay Commission Reports of 1996 and 2006 and accordingly his pay was fixed at the time of retirement on the post of Executive Engineer. Accordingly, his pension was fixed as Rs.16,575/-.
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are as per such contentions made by the respondent. Those Rules show that if an employee gets the post of Deputy Engineer by way of promotion between his age of 40 to 45 years, he needs to pass the professional examination in accounts subject only. The Rules show that only an employee, who gets promotion to the post of Deputy Engineer after completion of 45 years, need not appear for professional examination. In the present matter in view of the date of birth of the petitioner which is available and the date of promotion which is available, the petitioner got the post of Deputy Engineer, he got the promotion before 40 years of the age. Due to aforesaid Rules and circumstances, the contention of the respondent department is
that the petitioner ought to have passed the professional examination in all the subjects within three years and only after that he could have been confirmed on the post of Deputy Engineer. Rule 1 (c) shows that if Deputy Engineer does not pass professional examination within three years, he cannot be considered for confirmation in that cadre. Thus, the employee like present petitioner needs to pass professional examination first and only after that he can be confirmed in the cadre of Deputy Engineer, he can get his seniority fixed in that cadre and then, he will be entitled to get the post of Executive Engineer. Further, for becoming Executive Engineer, it is necessary to pass the professional examination. In view of these circumstances, it can be said that only due to the
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exemption granted by the Superintending Engineer in favour of petitioner on 20.7.2004, he got the promotion to the post of Executive Engineer on 11.8.2004. It needs to be kept in mind that the examination which was to be passed by the petitioner is professional examination and not of the departmental examination of which reference is made by the petitioner in his petition.
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was not that easy to pass in the examination and there is circumstance that petitioner never appeared for those examinations. These circumstances cannot be ignored as the petitioner got all the benefits without passing these examinations when as per the Rules, he could not have got even increments after 1996 due to not passing of such examination.
Engineer within one month show that in anticipation of such promotion the order came to be passed and without that order, the
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petitioner could not have got the post of Executive Engineer. Due to these circumstances, it cannot be said that the petitioner is innocent person and behind his back, the order dated 20.7.2004 was passed.
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totally different. The present matter does not involve mere mistake in fixation of pay, but there is clear possibility of mischief and due to that mischief, promotion was given to the present petitioner and many increments were released.
"8. Rule 134-A of the Pension Rules, 1982, reads as under :-
" 134-A-Recovery and adjustment of excess amount paid – If in the case of a Government servant, who has retired or has been allowed to retire,
(i) it is found that due to any reason whatsoever an excess amount has been paid to him during the period of his service including service rendered upon reemployment after retirement, or
(ii) any amount is found to be payable by the pensioner during such period and which has not
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been paid by or recovered from him, or
(iii) it is found the amount of licence fee and any other dues pertaining to Government accommodation is recoverable from him for the occupation of the Government accommodation after the retirement.
then the excess amount so paid, the amount so found payable or recoverable shall be recovered from the amount of pension sanctioned to him:
Provided that, the Government shall give a reasonable opportunity to the pensioner to show cause as to why the amount due should not be recovered from him:
Provided further that, the amount found due may be recovered from the pensioner in installment so that the amount of pension is not reduced below the minimum fixed by Government."
The above mentioned Rule also empowers to the Government to recover the excess amount paid to the Government servant, because of wrong pay fixation or otherwise. The petitioner has totally failed to make out a case for getting exemption from applicability of this Rule to him. This Court has no hesitation to observe that this Rule enables the respondent to make the correction and even recover the amount in the matter like present one.
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[Syed Abdul Qadir and Ors. Vs. State of Bihar and Ors.] and Writ Petition No. 11228/2015 [Dr. Nivruti s/o. Baliram Kalyan Vs. The State of Maharashtra and Ors.] decided by this Court on 21.12.2015. By using the observations made in these cases, the learned counsel for the petitioner submitted that if the mistake is committed in fixation of pay and the employee has not contributed in that mistake, then the excess amount paid cannot be recovered. It is true that there are some cases in which the Apex Court and this Court prevented the employer from recovering the excess amount paid, but those were Class III and Class IV employees. Further, it is settled law that even such employees cannot say that they have right to get the pay which was fixed on the date of retirement due to mistake. In many cases, this Court and Apex Court prevented the department from making recovery of excess payment mainly on the ground of equity. Thus, no right as such is vested in such employees to get benefit of mistake atleast in future.
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Prasad Uniyal and Ors. Vs. State of Uttarakhand and Ors.], the
Apex Court referred provision of section 72 of the Contract Act and has made observations which are relevant for the present purpose and the observations are as under :-
"15. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.
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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.
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dismissed with no order as to costs. IA Nos.2 and 3 are disposed of."
[Purushottam Lal Das and Ors. Vs. The State of Bihar and
Ors.] , when promotions were illegally given and after realising the mistake the employees were reverted back to the original posts the order of reversion was maintained by the Apex Court. The Apex Court, however, found that the employees were not at fault for such mistake and they had actually worked on promotional posts, so the Apex Court prevented the employer to recover the excess amount paid. Thus, one thing is clear that the mistake like the present one can always be corrected. The question which remains is the entitlement of the employer to recover the excess amount paid. On that also, it is already observed that only on the ground of equity, Court can protect such employees and that is also on condition that employee had not played any part in the mistake and they were innocent about it.
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As per the Rules, he could not have been confirmed even on the post
of Deputy Engineer and after 1996 he could not have got increments even in the scale of Deputy Engineer. The petitioner, who retired as Class I Officer got the benefit of the order of year 2004 and the other relevant circumstances about the order are also mentioned. The employee of such Class, Class I and Class II Officers are expected to be above board. Such employees are not expected to accept the benefit of orders which they know are illegal. Thus, even if it is presumed that the petitioner had not played active role in getting the order of 2004 from Superintending Engineer, he ought not to have accepted the promotion to the post of Executive Engineer and he ought to have informed to the department that due to aforesaid circumstances, he was not entitled to get that post. However, the record shows that he continued to get increments even after 1996, he got the order of exemption in the year 2004 and on that basis he got the post of Executive Engineer. Due to all these circumstances, this Court holds that petitioner was not innocent person and he had hand in the order of 2004. Thus, there are peculiar circumstances in the present case due to which not only the order made of refixing the pay needs to be upheld, but also the order of recovery of excess payment made against the petitioner needs to be upheld. Unless that that is done, atleast in Government Departments and Government Corporations such mischiefs cannot
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be stopped. In the result, the Writ Petition stands dismissed. Interim relief, if any, already granted stands vacated. Rule stands discharged in Writ Petition. The Contempt Petition stands dismissed.
[SUNIL K. KOTWAL, J.] [T.V. NALAWADE, J.]
ssc/
3 issues framed by the court
Whether the respondent department could correct the mistake of illegal promotion of the petitioner despite retirement.
Whether the excess pension amount paid due to illegal promotion could be recovered from the pensioner.
Whether Section 134-A of Pension Rules allows recovery of excess payment without showing fraud or misrepresentation.
Colour shows how this judgement treated each authority
Sushil Kumar Singhal Vs. Pramukh Sachiv Irrigation Department & Ors.Distinguished¶64
2014 (4) ALL MR 909
Syed Abdul Qadir and Ors. Vs. State of Bihar and Ors.Referred¶83
(2009) 3 SCC 475 · Who else cites this
Dr. Nivruti s/o. Baliram Kalyan Vs. The State of Maharashtra and Ors.Referred¶83
Writ Petition No. 11228/2015
Chandi Prasad Uniyal and Ors. Vs. State of Uttarakhand and Ors.Explained¶85
2012 AIR SCW 4742 · Who else cites this
Purushottam Lal Das and Ors. Vs. The State of Bihar and Ors.Distinguished¶100
2006 AIR SCW 5325 · Who else cites this
4 provisions across 2 enactments
Vijay Sambrao Bharati
The State of Maharashtra Through Secretary, Water Supply Department
The Member Secretary, Maharashtra Jeevan Pradhikaran
The Chief Engineer, Maharashtra Jeevan Pradhikaran Regional Officer, Thane
The Superintendent Engineer, Maharashtra Jeevan Pradhikaran Circle, Nanded
T.V. NALAWADE
SUNIL K. KOTWAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
