The court extended the benefit of recovery even to Class-I or Class-II Officers in an appropriate and rare case, if the situation so demands, based on the principles laid down by the Apex Court in Rafiq Masih (supra).

JUDGMENT :

Sandeep V. Marne, J.

1. Heard. Rule. Rule is made returnable forthwith. Learned AGP Smt. R.P. Gour waives service for respondent no.1 and learned advocate Mr. Subhash Chillarge waives service for respondent nos.2 and 3. At the joint request of the parties, the matter is heard finally at the stage of admission.

2. The petitioner challenges the judgment and order dated 05.11.2019 passed by the Maharashtra Administrative Tribunal, Bench at Aurangabad in Original Application No.69 of 2018. In his Original Application, the petitioner had challenged the order dated 24.01.2018 directing recovery of amount of Rs.2,58,711/- from his retirement benefits. By the impugned judgment, the Tribunal has dismissed the Original Application.

3. The petitioner was appointed as Technical Assistant in the office of respondent no.3 on 16.02.1982, which post was abolished and the petitioner came to be absorbed on the post of Civil Engineering Assistant w.e.f. 01.01.1989. He had passed Sub Overseer examination on 18.05.1985 and by order dated 03.08.2004, he was promoted on the post of Sub Overseer by granting deemed date of promotion as on 18.05.1985. On account of completion of 12 years of service from the date of initial appointment of 16.02.1982, he was granted financial up-gradation under the Time Bound Promotion scheme w.e.f. 01.10.1994. On completion of 24 years of service, he was granted benefit of second Time Bound Promotion with effect from 01.10.2006. Later, he was promoted to the post of Junior Engineer, Class-II, Non Gazetted post by order dated 02.07.2007. On attaining the age of superannuation, he retired from service on 31.08.2017. Upon submitting his pension papers, the Accountant General, Mumbai formed an opinion that the petitioner’s services from the date of initial appointment of 16.02.1982 could not be counted for Time Bound Promotion and the same were required to be counted from the date of his absorption as Civil Engineering Assistant w.e.f. 01.01.1989. Accordingly, refixation of petitioner’s pay was done and an amount of Rs.2,58,711/- was directed to be recovered.

4. In his original application, the petitioner did not dispute the action of the respondents in re-fixing his pay. What was challenged was only the recovery effected as a consequence of re-fixation. The Tribunal proceeded to dismiss the original application on the ground that since the petitioner was functioning on Class-II post of Junior Engineer, he is not entitled to protection against recovery by applying ratio of the Judgment of the Apex Court in State of Punjab & Ors. Vs. Rafiq Masih (white Washer) and Others, (2015) 4 SCC 334.

5. Mr. Sugdare, learned advocate appearing for the petitioner would submit that even though the petitioner was promoted on the post of Junior Engineer on 02.07.2007, the recovery is in respect of the period when he was working on Class-III post. He would submit that the recovery in respect of such a long period could not have been effected after retirement of the petitioner. He relied upon judgment of the Apex Court in The State of Maharashtra and another Vs. Madhukar Antu Patil and another, Civil Appeal No.1985 of 2022 decided on 21.03.2022.

6. Per contra, Mr. Chillarge, learned advocate appearing for respondent nos.2 and 3 opposes the petition and would submit that the petitioner was erroneously granted the benefit of Time Bound Promotion scheme. He would submit that in addition to Time Bound Promotions, the petitioner was also granted regular promotion on the post of Junior Engineer. He would therefore submit that the respondents have rightly withdrawn the erroneous benefit of Time Bound Promotion granted to the petitioner and have accordingly refixed his pay. He would further submit that recovery is a natural consequence of refixation of pay and the petitioner cannot be permitted to retain the amount erroneously granted to him. He would submit that being a Class-II Officer, the petitioner is not entitled to the benefit of the judgm