Recovery of excess payments impermissible from retired employees absent fraud or misrepresentation, especially near retirement and over long service; pension re-fixation allowed prospectively without recovery.

JUDGMENT :

SUSHIL M. GHODESWAR, J.

1. Heard.

2. By this petition filed under Article 226 of the Constitution of India, the petitioner, who is a retired employee, is praying for quashing and setting aside the order dated 08.06.2007 passed by respondent No.1/Chief Executive Officer, Zilla Parishad, Osmanabad. Vide the impugned order, respondent No.1 had directed recovery of excess payment made to the petitioner.

3. While issuing notice on 29.08.2007, this Court granted interim relief in terms of prayer clause D whereby, the respondents were restrained from recovering alleged excess payment already made to the petitioner during his service period. The said interim relief has been continued from time to time. On 01.10.2008, Rule was issued in this petition.

4. It is the case of the petitioner that he was initially appointed as an Assistant Teacher on 06.08.1971 and he was continued till 28.04.1972. However, he was discontinued from 29.04.1972 to 07.08.1972. Thereafter, the petitioner was re-appointed on the same post vide order dated 31.07.1972 and accordingly, he joined on 07.08.1972. The petitioner completed his graduation in B.A. in June, 1973 with prior permission of the Education Officer (Primary). He became permanent teacher on 19.09.1975. Thereafter, he completed D.Ed. Course on 14.07.1979. Accordingly, the petitioner became trained graduate primary teacher for 5^th standard on 14.07.1984. The petitioner’s pay scale was revised and fixed from time to time on the basis of his qualification and seniority and he was being accordingly paid the pay scale till his retirement on 30.11.2005. However, on 02.07.2005, the Account Officer, Zilla Parishad, issued letter to the Headmaster of Zilla Parishad Primary School, Itkur, Taluka Kallam, District Osmanabad, where the petitioner was serving, for verification of pay scale of the petitioner and for compliance of deficiency in service book. In the letter dated 02.07.2005, the objection was raised that since the first appointment of the petitioner was made after 30.09.1970 and he is not possessing B.Ed. Qualification, therefore, his pay scale be re-fixed accordingly and the details of recovery amount be submitted. Based on the above letter dated 02.07.2005, the Headmaster of the school issued the letter dated 24.08.2005 to the petitioner stating therein that the Account Officer of Zilla Parishad has raised objection to the pay scale of the petitioner since his first appointment was made after 30.09.1970 and he is also not having B.Ed. qualification. Therefore, the petitioner was asked to avail option whether, his pay scale should be as applicable to primary graduate teacher or as applicable to assistant teacher possessing D.Ed. qualification. It was mentioned that after availing any one option, the pay scale of the petitioner can be re-fixed and his pension papers can accordingly be processed.

5. According to the petitioner, the said objection was unnecessarily taken. Though he was given appointment after 30.09.1970, however, he was already selected in the month of May, 1970 along with several other candidates. The appointments were issued batch-wise and the petitioner was in the second batch. Therefore, it cannot be said that the petitioner was appointed after 30.09.1970. The petitioner stood superannuated on 30.11.2005. However, on 01.12.2005, the petitioner received the salary certificate to the effect that at the time of retirement, his pay scale was Rs.8500/-, therefore, the petitioner is entitled to receive pension on the basis of pay scale which was regularly paid to him till