AI Structured Summary
Not yet generated for this judgment
Judgment
JUDGMENT : (Per Abasaheb D.Shinde, J.)
By this petition, the petitioners seek to challenge the order dated 21.06.2023 passed by the Maharashtra Administrative Tribunal, Mumbai, Bench at Aurangabad (hereinafter called as ‘the Tribunal’), thereby allowing the Original Application No.420/2020 filed by the respondent.
The facts in brief can be summarized as follows :-
The respondent joined the service with the petitioners as a Clerk on 04.08.1993. He passed the GDC and A examination in May 1993. He was granted exemption from passing Marathi Examination on 20.12.1995. He however completed Marathi Typing @ 30 w.p.m. and English Typing @ 40 w.p.m. in the year 1997.
He had undergone account training at Nashik during 07.07.2003 to 29.04.2003. Upon completion of 12 years of continuous service, the respondent was given benefit of 1st time bound promotional scale on 03.06.2006.
The respondent on 20.11.2017 had applied for getting exemption from passing Hindi examination however, the petitioners informed that the respondent can seek the said exemption only upon completion of the age of 50 years. In the meanwhile, upon completion of 24 years of service, the respondent was granted 2nd ACPS benefit on 27.11.2017.
In September 2018, the respondent appeared for the Hindi examination and successfully passed the same. On 01.03.2019 he applied to the petitioner No. 3 for taking the said entry in his service book. The petitioner No. 3 accordingly on 19.11.2019 took the entry in the service book of the respondent.
Petitioner No.3 however issued show cause notice to the respondent on 22.05.2020 calling upon him to show cause as to why his annual increments should not be stopped from 04.08.1996 by cancelling 2nd ACPS on account of his failure to pass Hindi Examination after completing 3 years of continuous service.
The respondent submitted his reply on 04.06.2020 explaining the facts and circumstances referred to hereinabove and requested the petitioners not to stop the increments. Petitioner No.2, however, on 31.10.2020, directed recovery from the respondent on the ground that both the ACPS benefits / time bound promotional scales were erroneously granted to him. The respondent, therefore, approached the Tribunal by filing the aforesaid Original Application.
The Tribunal, by the impugned order, allowed the said Original Application thereby setting aside the action of the petitioners of cancelling the grant of 2nd ACPS granted to the respondent and the recovery of increments granted to him from the year 1996 onwards. The Tribunal, further directed that there shall be no further recovery from the pay and allowances of the respondent. The petitioners, therefore, have approached this Court.
Learned AGP for the petitioners strenuously submits that the respondent was expected to pass Hindi Examination within 3 years of continuous service. She would submit that the respondent was wrongly granted the 2nd ACPS / time bound promotion despite having failed to pass the said examination. Though the respondent claims to have passed the said Examination, however, he did not intimate the said fact to the petitioners. The petitioners, therefore, were justified in cancelling the 2nd ACPS/time bound promotion of the respondent by directing recovery of the excess amount paid to him. She therefore urged that the Tribunal has committed an error in allowing the Original Application, therefore the impugned order passed by the Tribunal deserves to be quashed and set aside.
Per contra, learned Advocate appearing for the respondent supported the impugned order.
Having heard the learned AGP for the petitioners and the learned Advocate appearing for the respondent and after perusal of the record and the findings of the learned Tribunal, undisputedly the respondent was appointed as Clerk in the year 1993. In the year 1995, the petitioner was granted exemption from passing Marathi Examination. In the year 2006 after completing 12 years of his service the respondent was given benefit of 1st ACPS/time bound promotion. Thereafter upon completing 24 years of service he was also given benefit of 2nd ACPS/time bound promotion on 27.11.2017. The record depicts that, though respondent had applied for exemption from passing Hindi Examination on 20.11.2017, he was informed by the petitioners that the same can be granted only after attaining the age of 50 years. It is also a matter of record that in September 2018 the respondent has passed the Hindi Examination. The said entry was also taken in his service book on 30.11.2019. All these aspects unequivocally goes to show that the Respondent was eligible for the 2nd ACPS/time bound promotion.
In view thereof, we find that the petitioners have erroneously cancelled the 2nd ACPS/time bound promotion of the respondent and initiated the recovery from him. The case of the respondent therefore falls within the authoritative parameters laid down by the Hon’ble Apex Court in the case of State of Punjab and others Vs.Rafiq Masih (White Washer) etc., (2015) 4 SCC 334 = AIR 2015 SC 696, which reads as under :-
“18.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:
(i)Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii)Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii)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.
(iv)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.
(v)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 employer's right to recover.”
In our considered view, the Tribunal has rightly allowed the Original Application filed by the respondent. We, therefore, do not find any infirmity or perversity in the impugned order. No case is made out for interference under Article 226 of the Constitution of India.
The writ petition is devoid of any substance and deserves to be dismissed. In the result, writ petition stands dismissed.