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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.V. GANGAPURWALA, A.M. DHAVALE, JJ.
PREMCHAND - Appellant
Versus
STATE OF MAHARASHTRA - Respondent
Writ Petition No. 3928 of 2018
Decided on : 02-05-2019
MEPS Rules – Section 41 – Recovery of excess payment – Petitioner assails the order of respondent No. 2/Dy. Director of Education and the order of Principal, College of Education (respondent No. 6) whereby his pay and pay scale were reduced and direction for recovery of excess payment made to him was passed – Held, Court is 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. Court 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. – 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 employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: Recovery from employees belonging to Class-III and Class-IV service (or Group C and Group D service). – Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. – 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. – 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. –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 employers right to recover. – Challenge to the pay fixation is rejected – Order Accordingly
A. M. DHAVALE, J.
1. Rule. Rule made returnable forthwith. Heard finally with the consent of the parties and taken up for final disposal at admission stage.
2. The petitioner assails the order of respondent No. 2/Dy. Director of Education dt. 18.08.2016 and the order of Principal, College of Education (respondent No. 6) dt. 04.07.2017 whereby his pay and pay scale were reduced and direction for recovery of excess payment made to him was passed.
3. Certain facts are not in dispute.
(a) The petitioner was B.A. B.Ed. and was appointed as Assistant Teacher on 16.06.1989 in Secondary School in respondent No. 5 / Institute in pay scale of Rs. 1400-2600. His appointment was approved and confirmed with effect from 16.06.1989 and 01.09.1992, respectively.
(b) In 1996, his pay scale was fixed as per 5th Pay Commission as Rs. 5500-175-9000/-. On 16.06.2001, the petitioner completed 12 years of service and the Management granted him benefit of time bound/first ACPS with effect from 16.06.2001. By order dt. 12.04.2008, his pay was fixed at same pay of Rs. 6900 but in the pay scale of Rs. 6500-200- 10500 as on 16.06.2001 with next increment on 01.06.2002 (Rs. 7100).
(c) On 12.06.2009, 6th Pay Commission was made applicable with effect from 01.01.2006. That time the petitioner was drawing basic pay of Rs. 7700 and vittalabdhi was Rs. 13976/-. By order dt. 12.09.2011, as per Corrigendum dt. 13.08.2009, his pay was fixed at Rs. 15600-39100 with Grade Pay of Rs. 5400. Meanwhile, he was transferred from Secondary School to Jr. College on 16.09.2006 and he was given the same pay scale with salary of Rs. 15600 with Grade Pay of Rs. 5400/- from 16.09.2006 as well. This order was under challenge. Meanwhile he had passed M.Ed. In May-2006.
(d) The Accounts Officer issued a general letter dt. 28.11.2013 to the Principal of College of Education (Adhyapak Vidyalaya) and informed that the petitioner was not entitled for the scale of Rs. 15600-39100 with Grade Pay of Rs. 5400/- and the teachers transferred to College of Education were not entitled to pay protection and therefore transfers could not be effected to College of Education (Adhyapak Vidyalaya) without their consent. It was also informed that, the exemption was granted from possessing basic eligibility by teachers of College of Education who were appointed prior to 1998 and the teachers appointed from 1998 to 09.01.2001 were given time to acquire requisite qualification before June 2007 at their own expense. It was also clarified that, the teachers working in College of Education were entitled to senior pay scale of Rs. 15600-39100 with Grade Pay of Rs. 5400/- only if they had worked for 12 years as a teacher in College of Education wherein the basic pay scale was Rs. 9300-34800 with Grade Pay of Rs. 4600/-.
(e) Pursuant to the directions, respondent No. 6 issued notice to the petitioner dt. 16.03.2016 and called his say. The petitioner submitted his say dt. 27.04.2016 claiming that he was B.A. M.Ed. With 55% marks in B.A. B.Ed. Exam and 54.84% marks in M.Ed. which was to be rounded off to 55%. Besides, he was given ACPS benefit before joining college of Education and therefore he was entitled for the scale given to him. The Accounts Officer passed order dt. 18.08.2016 and reduced the pay scale of the petitioner to Rs. 9300-34800 with Grade Pay of Rs. 4400/- from 01.01.2006 and same pay scale with grade pay of Rs. 4600/- from 16.09.2006 the date on which he was transferred to College of Education. It was observed, (a) though as per NCTE, the Lecturer in College of Education was required to have 55% marks in M.Ed., as per letter of Directorate of Maharashtra State Council of Educational Research and Training, 55% marks condition was applicable to B.Ed. and not for M.Ed. (b) The petitioner had not served in the basic pay scale of Lecturer in College of Education for 12 years and therefore
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