Recovery from employees, especially Class-III and Class-IV, without considering extreme hardships and without compliance with principles of natural justice, is impermissible.

Smt. Vibha Kankanwadi, J.

1. Rule. Rule made returnable forthwith and heard learned advocates for the parties appearing finally, by consent.

2. The question of recovery of amount from retirement benefits of a Class - III and Class – IV employee of the Government, after their retirement was the subject matter in many cases. Some of the cases have been decided by this Court and law has been crystallized by Apex Court. In spite of the same, the subject matter is cropping up again and again. In this case also the same subject matter is involved. Both the petitioners have invoked the jurisdiction of this Court under Article 14, 16 and 226 of the Constitution of India in order to challenge the recovery of amount from the gratuity amount, under the orders of respondent No.2.

3. Both the petitioners, after passing the training of Auxiliary Nurse Midwife were appointed on that post. The petitioner in Writ Petition No. 4616 of 2016 came to be appointed with Zilla Parishad, Aurangabad on 07-02-1989 and she joined duty on 14-02-1989. Whereas petitioner in Writ Petition No. 4624 of 2016, came to be appointed on 24-01-1983 at Primary Health Center, Jarandi Tq. Soygaon Dist. Aurangabad. The services of petitioner in Writ Petition No. 4616 of 2016 came to be regularized under the order dated 25-07-1991. Though she was having a break of two days, it was converted into admissible leave. Thereafter, both the petitioners have undergone the training of Lady Health Visitor for a period of six months, and thereafter, they got the pay-scale for the said cadre. Thereafter, their pay-scale got increased in view of 5th pay commission and 6th pay commission. Both the petitioners have retired on attaining the age of superannuation on 30-04-2014 and 31-07-2014 respectively. After their retirement, the pension papers were transmitted for issuing appropriate order of payment of pension, gratuity and commutation. The respondent No.2 has passed an order on 06-01-2016 and 21-02-2014 respectively for re-fixation of the pension and recovery of excess amount. Amount of Rs.3,49,562/- was proposed to be recovered from petitioner in Writ Petition No.4616 of 2016 and amount of Rs.2,47,016/- was proposed to be recovered from petitioner in Writ Petition No.4624 of 2016. Thereafter, said amount has been recovered from their amount due from gratuity. The reason that was given by the respondent is that, the benefit of time bound promotional pay-scale has been wrongly given to the petitioners.

4. After the affidavit-in-reply has been filed on behalf of respondents, the petitioners have amended the petition and they have challenged the impugned orders of recovery as well as the revised pay fixation done by the respondent No.2 or officers connected to respondent No.2.

5. In both the matters affidavit-in-reply has been filed by Dr. Dattatraya Bhagwatrao Gholap on behalf of respondents No.1 and 2. In both the matters the admission regarding appointment of petitioners has been given and it has been stated that the date of entry of the petitioners in service has been wrongly considered. It has been stated that, the time bound promotion after twelve years ought not to have been given on the date on which it has been in fact given. Further at the time of fixation of pay, when the 5th pay commission was granted from 01-01-1996, the basic for fixation of the respective petitioners was wrongly taken because there was wrong committed initially. So also the said wrong figure continued while fixing the pay of the petitioners while granting benefits under 6th pay commission. It has been stated that, as regards fixation of pay-scale as per 5th pay commission, an interim order was passed in Writ Petition No.2258 of 1993, the pay of all the concerned persons was fixed taking into consideration that interim order, however ultimately the said writ petition came to be dismissed. After the meetings with the union of Auxiliary Nurse Midwife/Lady Health Visitor employees, in relation to the e