Shrinivas Ganesh Kulkarni vs Savitribai Phule Pune University and Others

JUDGMENT (Per : Aarti Sathe, J.):-

This petition under Article 226 of the Constitution of India is filed praying for the following substantive reliefs:-

The Petitioner, being a Class-III employee of Respondent No. 1-University, has challenged the legality of the notice dated 17^th April 2023 issued by Respondent No. 1-University seeking to recover from the Petitioner an amount of Rs. 39,94,343/- on the ground that the same amounted to excess payment. The Petitioner is seeking further direction to release his gratuity, earned leave encashment, the arrears of the 7^th Pay Commission dues under the Assured Career Progression Scheme, and accrued interest on Provident Fund which is due to him. The recovery of the aforesaid amount, according to the Petitioner, is an arbitrary action taken by Respondent No. 1-University, and more particularly post-retirement of the Petitioner, the same cannot be made from the Petitioner.

Briefly the facts are as follows:

The Petitioner joined the services of Respondent No. 1-University on the post of “Data Entry Operator” as per instructions of Respondent No. 1-University on job-work basis on 7^th June 1993. Thereafter, on 22^nd July 1993, the Petitioner was issued an official appointment order for the post of “Data Entry Operator” in the pay scale 1200-30-1560-EB-40-2040.

The Petitioner was given temporary appointment in Respondent No. 1-University as a Data Entry Operator on 22^nd July 1993 as stated aforesaid. On 26^th September 1994, a fresh appointment letter was issued to the Petitioner, by which the Petitioner was appointed to the post of Data Entry Operator on permanent basis. On 22^nd August 1995, since the Petitioner was already in the service of Respondent No. 1-University, it also protected his basic pay, and a pay protection letter was issued to the Petitioner of even date. Thereafter, on 10^th December 1998, a Government Notification was issued by the Finance Department of the State of Maharashtra, in which the pay scale of Rs. 9300-34800 with a grade pay of Rs. 4300 had been provided to the position of the Data Entry Operator. Thereafter, again on 4^th February 1999, through a Government Notification, the post of Data Entry Operator was included in the 5^th Pay scale and accordingly the pay band of the Petitioner was determined between 4000-100-6000.

On 13 January 2001, Respondent No.1 issued a letter to the Petitioner intimating him of his confirmation on the said post with effect from 7^th June 1995.

Thereafter, on 27^th June 2001, a letter was issued by the Department of Higher and Technical Education, which showed that the pay scale of Rs 9300-34800 with a grade pay of Rs. 4300 had been provided to the position of the Data Entry Operator at North Maharashtra University, Jalgaon. A resolution dated 5^th August 2005 was passed by the Management of Respondent No. 1-University, through which the employees appointed from the university funds were to be given salary at par with the employees working on the sanctioned post of the Government. Further, on 17^th October 2006, Respondent No. 1-University, by a letter of even date, awarded the benefits of the Time Bound Promotion Scheme to the Petitioner with effect from 7^th June 2005, after completion of 12 years service in Respondent No. 1-University. It is the Petitioner’s contention that the Petitioner was also supposed to receive the second benefit of the Assured Career Progression Scheme (scheme of promotion/next pay band), but the same was not given to the Petitioner, and the said benefit was there, up to the date of his retirement.

On 30^th January 2019, a Gazette Notification was issued by the Finance Department of the State of Maharashtra, which showed the pay scale for the position of Data Entry Operator under the Maharashtra Public State Commission (MPSC) as Rs.9300-34800 with grade of Rs. 4300.

The Petitioner retired from the service of Respondent No. 1-University on 31^st December 2022 due to superannuation. After his retirement, the Petitioner was also supposed to receive benefits such as gratuity, earned leave encashment, and interest due on Provident Fund. It is the contention of the Petitioner that, however, the said amount was not paid to him. Therefore, in respect thereof, the Petitioner enquired/approached Respondent No. 1-University, to provide him with a clarification regarding the same.

On 17^th April 2023, Respondent No. 1-University issued a letter to the Petitioner and informed him that there was an error in his pay fixation as per the 6^th Pay Commission, and therefore, there is a recovery to the tune of Rs. 39,94,343/- from him. The letter also stated that Respondent No. 1-University would take suitable action for the said recovery. The Petitioner thereafter was informed verbally that he would not be paid gratuity and earned leave encashment unless he repaid the aforesaid amount, which was given to him as excess payment. Respondent No. 1-University also issued to the Petitioner a pay revision chart showing that his pay scale under the 6^th Pay Commission ought to have been Rs.5200-20200 with grade pay of Rs. 2400 instead of Rs. 9300-34800 with grade of pay of Rs. 4300.

Between 8^th May 2023 and 21^st August 2023, the Petitioner addressed number of letters to Respondent No. 1-University and submitted that he had never demanded any pay scale, and that his salary was fixed by Respondent No. 1-University, and now since he had retired, it would not be possible for him to return the said amount which Respondent No. 1-University had claimed had been paid in excess towards the salary. He further requested Respondent No. 1-University to release the dues which had not been paid to him yet. However, Respondent No. 1-University has not replied to any of the aforesaid letters of the Petitioner, and it is the Petitioner’s contention that the said amount still remains unpaid.

As the Petitioner had not received any reply from Respondent No. 1-University, the Petitioner once again issued a reminder letter on 11^th September 2023 with a copy to the Governor of Maharashtra/ Chancellor of Respondent No. 1-University, Minister of Higher and Technical Education Department and the Secretary of Higher Education, Pune to the effect that the retiral dues of the Petitioner be returned to him. It is the Petitioner’s contention that he has retired from his services from 31^st December 2022, but except his Provident Fund, he has not received any of his post-retiral benefits such as gratuity, earned leave encashment, arrears of 7^th Pay Commission, and accrued interest of Provident Fund amount.

It is in the backdrop of the aforesaid facts that we proceed to decide the present petition, as to whether the letter dated 17^th April 2023 issued by Respondent No. 1-University to the Petitioner seeking to recover an amount of Rs. 39,94,343/- as excess payment of salary, which was paid to him allegedly by mistake, is a correct position which has been taken by Respondent No. 1-University.

Learned counsel Mr. Vaibhav Kulkarni, along with Mr. Prathamaesh Deshpande and Ms. Disha Rathod appeared on behalf of the Petitioner, Mr. Rajendra Anbhule along with Ms. Vaibhavi Shelar appeared for Respondent No. 1-University, and Mr. P.P. Kakade Addl. GP along with Ms. Priyanka B. Chavan AGP appeared on behalf of the State.

Learned Counsel for the Petitioner, at the very outset, has submitted that the facts of the present case are squarely covered by the decision of the Supreme Court in the case of State of Punjab and others v/s. Rafiq Masih and Ors.^{11.2015(4) SCC 334}, wherein it has been held that insofar as Class-III and Class-IV employees are concerned, even where the payments have mistakenly been made by the employer in excess of their entitlement, yet in those cases recoveries by the employers from such employees would be impermissible in law. He has further submitted that a Co-ordinate bench of this Court in the case of Anil Pralhad Dhande v/s The State of Maharashtra and Ors.^{22.Writ Petition No. 13029 of 2022} has followed the view taken by the Supreme Court in Rafiq Masih (supra), and in view thereof, the present matter also, on similar facts, stands covered by the aforesaid decisions. He has further submitted that in the present case also the Petitioner was also a Class III employee, and applying the principles as enunciated in the case of Rafiq Masih (supra), Respondent No. 1-University would not be correct in recovering the post-retiral benefits from the Petitioner.

It is the contention of learned Counsel for the Petitioner that the Petitioner had already retired from his services on 31^st December 2022, and Respondent No. 1-University had not paid him any of the post-retiral benefits, except his provident fund. The services of the Petitioner are non-pensionable, and his post-retiral benefits are the only source of income which the Petitioner has, and Respondent No. 1-University by seeking the alleged excess amount of Rs. 39,94,343/-, has, in that sense, trampled upon the Petitioner’s only source of income. Learned Counsel for the Petitioner submits that in fact, the Petitioner had addressed several letters to Respondent No. 1-University, but till date, there has been no reply from Respondent No. 1-University in respect of the alleged erroneous and excess payment which Respondent No. 1-University contends has been made to the Petitioner.

Per contra, learned counsel for Respondent No. 1-University Mr Anbhule seeks to place reliance on the affidavit-in-reply filed by Dr. Prasad Vishnu Kulkarni on behalf of Respondent No. 1-University to contend that the action taken by Respondent No. 1-University showing recovery against the Petitioner was the correct action. He has sought to place reliance on the fact that on 22^nd July 1993, the Petitioner came to be appointed on the post of Data Entry Operator, Class-III on a temporary basis, and he joined the University on the said date. Thereafter, as per advertisement No. 149/151/1993 and subsequent interview held on 1^st September 1994, the Petitioner by letter from Respondent No. 1-University dated 26^th September 1994 came to be appointed on the post of Data Entry Operator, Class-III under the university fund on the pay band of Rs. 1200-30-1560-EB-40-240. Thereafter, a Government Notification dated 4^th February 1999 was issued, wherein the post of Data Entry Operator was included in the 5^th Pay Scale, and the pay band of the Petitioner was 4000-100-6000. The Petitioner came to be confirmed by letter dated 7^th June 1995 on the post of Data Entry Operator created from the university funds, and a Time Bound Promotion was given to the Petitioner on 7^th June 2005. He also submitted that the appointment of the Petitioner was from the funds of Respondent No. 1-University, and as per Resolution No. M:158-05 dated 5^th August 2005 passed by the management of Respondent No. 1-University, the employees appointed from the university funds were to be given salary at par with the employees working on the sanctioned post of the Government. Thereafter, by the Government Notification dated 7^th October 2009, the 6^th Pay Commission came be to be implemented in Respondent No. 1-University, and in the said notification, for the post of Data Entry Operator at serial number 134, the pay band was fixed at PB-2,9300-34800 with Grade Pay Rs. 4300. He therefore contended that since the appointment of the Petitioner was made on pay band of Rs. 1200-30-1560-EB-40-240 by 5^th Pay scale, PB Rs. 4000-100-6000 was given to the Petitioner. In view of that, as per the 6^th Pay Commission, the PB 15200-20200 grade pay 2400 was required to be given to the Petitioner, but by mistake PB-2,9300-34800 Grade Pay 4300 was made applicable to the Petitioner, and in view thereof, the excess salary of Rs. 37,085,83/- was paid to the Petitioner, which Respondent No. 1-University has now sought to recover from the Petitioner. He further submitted that while applying the 6^th Pay Commission, the Petitioner had given an undertaking to the effect that if any excess payment may be found to be made as a result of incorrect fixation of pay for any excess payment detected in light of discrepancies noticed subsequently, he would refund the said amount to the Government either by adjustment for future payment, or otherwise. The relevant paragraphs of affidavit filed by Dr. Prasad are reproduced below:-

Learned Counsel for the Respondents also relied upon the additional affidavit-in-reply filed by Dr. Prasad Vishnu Kulkarni, wherein in it was once again reiterated that the payment of excess salary was made erroneously to the Petitioner, and in fact, the Petitioner had misled the Court by citing the schedule indicating the designation of Data Entry Operator (Grade I-Bioinformatics) with regard to the existing and revised pay scale of the Maharashtra Government Notification dated 7^th October 2009. He submitted that in fact, the Petitioner’s designation is of Data Entry Operator (Grade-III) at serial No. 252 of the Government Notification dated 7^th October 2009, wherein the existing pay scale of Rs. 4000-6000 and revised pay structure Rs. 5200-20200 with Grade Pay 2400 is what is payable to the Petitioner. He therefore submitted that the Petitioner has deliberately concealed/suppressed the facts by not attaching the complete Government Notification dated 7^th October 2009, and therefore the petition is liable to be dismissed and does not deserve any consideration. The relevant paragraphs of the additional affidavit dated 11^th December 2024 are reproduced below:-

We have heard learned Counsel for the parties and perused the papers and proceedings with their assistance. At the very outset, this Court has passed several orders in the present petition, and in one of the said orders it has been categorically recorded by the Co-ordinate bench of this Court that, they were of the prima facie view that the facts of the present case are covered by the decision of the Supreme Court in Syed Abdul Qadir v/s State of Bihar and others^{33.2009(3) SCC 475} and in the case of Rafiq Masih (supra). The Co-ordinate bench of this Court also directed the Respondent No. 1-University to deposit the entire retiral dues of the Petitioner in this Court, including gratuity amount on or before 14^th November 2024, pending the final disposal of the aforesaid Petition by order dated 16^th October 2024. Pursuant to the aforesaid order, Respondent No. 1-University had deposited Demand Draft (DD) No. 187828 dated 11^th November 2024 amounting to Rs. 7,36,164/- drawn from Bank of Maharashtra, Pune University Campus Branch and DD No. 187829 dated 11^th November 2024 amounting to Rs. 3,16,387/- drawn from Bank of Maharashtra, Pune University Campus Branch with this Court. The relevant order of the Co-ordinate bench of this Court dated 16^th October 2024 is reproduced below:-

Considering the facts of the present case, and also the orders passed by the Co-ordinate bench of this Court as reproduced above, and on perusal of the decision of the Supreme Court in Rafiq Masih (supra), we are of the considered view that the facts in the present case get squarely covered by the decision in Rafiq Masih (supra). We come to this conclusion considering that the Petitioner in the present case was also a Class III employee, and insofar as the contention of Respondent No. 1-University is concerned, that the Petitioner had given an undertaking during the application of the 6^th Pay Commission that he would refund the amount to the Respondent No. 1-University in the event there were any discrepancies or mistakes while calculating the said amount, the same would not come in the way of the Petitioner’s case, inasmuch as the decision in case of Rafiq Masih (supra) categorically lays down the law that insofar as recovery from employees belonging to Class III and Class IV service is concerned, the same is impermissible in law, and even if it has been mistakenly been made by the employees. Considering the clear position of law as set out in the case of Rafiq Masih (supra), we do not see as to how the facts of the present case can be differentiated and the guidelines as laid down by the Supreme Court in Rafiq Masih (supra) would not be applicable to the present case. The relevant paragraphs of the decision of Rafiq Masih (supra) are reproduced below:-

We are also in agreement with the submission made on behalf of the learned Counsel for the Petitioner that the Co-ordinate bench of this Court in the case of Anil Pralhad Dhande (supra) has also applied the principles/guidelines as set out in the Rafiq Masih (supra) to hold that any retiral benefits which are sought to be taken from a Class III employee cannot be taken, inasmuch as the Petitioner therein, fell in the categories (i) and (ii) of the guidelines as laid down in the case of Rafiq Masih (supra). The relevant paragraphs of the order of the Co-ordinate bench of this Court in the case Anil Pralhad Dhande (supra) are reproduced below:-

We are also of the view that the letter dated 17^th April 2023 in the present case seeking to recover the alleged excess amount from the Petitioner has been issued post the retirement of the Petitioner, i.e., on 31^st December 2022. This, to our mind, also strengthens the case of the Petitioner that an amount which has already been paid to the Petitioner cannot now be recovered from the Petitioner on the ground of a mistake on the part of the employer. Further, it is not disputed before us that the Petitioner is a Class III employee, and hence the decisions in Rafiq Masih (supra) and Anil Pralhad Dhande (supra) would completely cover the facts of the present case. Even otherwise for recovery of such amounts even a civil suit was hopelessly time barred.

Insofar as the reliance by learned Counsel on behalf of the Respondent No. 1-University on the case of High Court of Punjab and Haryana v. Jagdev Singh^{44.(2016) 14 SCC 267} is concerned, the same is distinguishable from the facts of the present case, inasmuch, as in the said case the recovery was claimed from a Class I officer, who was a judicial officer, and to whom a revised pay scale was granted after he furnished an undertaking and recovery was initiated. In the facts of the present case, it is an undisputed fact that the Petitioner is a Class III employee and not a Class I employee, and therefore, the decision in Jagdev Singh (supra) as sought to be relied on by learned Counsel for Respondent No. 1-University would not be applicable to the facts of the present case. Insofar as the case of Mandeep Singh Kohli and Others v. Union of India^{55.2021 (1) Mh.L.J. 370} is concerned, the same is distinguishable from the facts of the present case, inasmuch as the Petitioners therein had themselves challenged the classification of Data Entry Operators under the pay scale of Rs. 11500-1500 before the Central Administrative Tribunal (CAT), subsequent to which the CAT had directed the Respondents therein to examine whether similarly situated employees had been granted a higher pay scale on the basis of any order of a Court. Pursuant to the same, the Respondents had provided the Petitioners with the pay scale of Rs. 1350-2200, after taking undertakings from each Petitioner that if they were found disentitled for the pay scale in the future, the dues thereof could be recovered from their pay and allowances, including retiral benefits. The undertakings were therefore taken in view of the pendency of the issue of the pay scale applicable to the Petitioners therein. Thereafter, an order was passed by the Supreme Court, through which the Petitioners were held disentitled for the higher pay scale. However, in the present case, the Petitioner was paid salary under the pay scale of Rs. 9300-34800 with Grade Pay of Rs. 4300 merely due to an alleged mistake by the Respondent Authorities. Further, in the case of Mandeep Singh Kohli (supra), the Petitioners therein were held disentitled for the higher pay scale after a period of merely 20 months, whereas in the present case the Petitioner was informed that he was disentitled for the pay scale of Rs. 9300-34800 with Grade Pay of Rs. 4300 only after his retirement on 31^st December 2022, after a lapse of considerable amount of time.

Considering the aforesaid factual and legal backdrop, we are of the opinion that it would be illegal and arbitrary to recover the amount of Rs.39,94,343/- from the Petitioner’s retiral benefits, more so when the Petitioner is a Class III employee. In view thereof, we are of the view that this Writ Petition deserves to succeed, and the illegal recovery made by Respondent No. 1-University deserves to be set aside. We therefore pass the following order which will meet the ends of justice:-