Bombay High Court
NITIN MUNJAJIRAO IJATE AND OTHERSversusTHE STATE OF MAHARASHTRA AND OTHERS
- Disposal
- DISPOSED OFF
Holding
The order dated 05‑01‑2022 directing re‑fixation of pay and recovery of excess salary from the petitioners is arbitrary and unconstitutional and is hereby quashed.
Summary
The petitioners, nineteen Class‑III employees of the former Parbhani Municipal Council, challenged an order dated 05‑01‑2022 by the Deputy Commissioner of Parbhani Municipal Corporation that re‑fixed their pay scales and directed recovery of excess salary. They argued that the re‑fixation was arbitrary, that no fraud or misrepresentation on their part justified recovery, and that the earlier 2017 court order had already quashed a similar re‑fixation. The High Court examined the employees' classification, confirmed they were Class‑III, and held that recovery of excess emoluments from lower‑rung staff is iniquitous, arbitrary and violative of Article 14. Relying on the Supreme Court’s decision in State of Punjab v. Rafiq Masih (2015) 4 SCC 334 and the earlier Col. B.J. Akkara case, the Court found the 2022 order unconstitutional. Consequently, the writ petition was allowed and the order of 05‑01‑2022 was quashed.
Issues considered
- Whether the Deputy Commissioner’s order re‑fixing pay and directing recovery of excess salary is legally valid.
- Whether recovery of excess salary from Class‑III (Group C) employees is permissible under constitutional and statutory law.
- Whether the petitioners are entitled to relief under Article 226 of the Constitution.
Legislation cited
- Constitution of India — s. Article 14, Article 226
- Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships State Services (Absorption, Recruitment & Conditions of Service) Rules, 2006
Subjects
- Writ petition
- Article 226
- Pay fixation
- Salary recovery
- Class‑III employees
- Arbitrary action
- Article 14
- Municipal Corporation
- Absorption Rules
- Equity
- Judicial discretion
Judgment
2026:BHC-AUG:31091-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2836 OF 2022
1. Nitin s/o Munjajirao Ijate
Age : 46 years, Occu : Service,
R/o Municipal Colony, Darga Road,
Parbhani
2. Umesh s/o Jagannath Ardad,
Age : 47 years, Occu : Service,
R/o. Municipal Colony, Darga Road,
Parbhani
3. Muntajeeb Mehboob Khan
Age : 47 years, Occu : Service,
R/o. Azam Colony, Darga Road
Parbhani
4. Prasad s/o Purbhaji Pote,
Age : 54 years, Occu : Service,
R/o. Langot Galli, Jijamata Road,
Parbhani
5. Chandrakant s/o Limbajirao Pawar,
Age: 55 years, Occu: Service,
R/o. Samzota Colony, Karegaon Road, Parbhani.
6. Keshav s/o Venkatrao Daunde,
Age: 52 years, Occu: Service,
R/o. Sujate Nagar, Old Pedgaon Road, Parbhani.
7. Ab. Majjit Ab. Raheman Kaji,
Age: 58 years, Occu: Pensioner,
R/o. Darga Road, Parbhani.
8. Vishnu s/o Tanba Sawant,
Age: 57 years, Occu: Service,
R/o. Raygad Nagar, Old Pedgaon Road, Parbhani.
9. Laxman s/o Sambhaji Nandane,
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Age: 56 years, Occu: Service,
R/o. Sakhala Plot, Lohagaon Road, Parbhani.
10. Shaikh Kalim Shaikh Jilani,
Age: 57 years, Occu: Service,
R/o. Paraswat Nagar, Parbhani.
11. Smt. Vidya Vishnupant Pimpalwadkar,
Age: 53 years, Occu: Service,
R/o. Bhajan Galli, Parbhani.
12. Bhagwan s/o Ramrao Shinde,
Age: 47 years, Occu: Service,
R/o. Khanapur Nagar, Parbhani.
13. Govind s/o Bhaurao Tathe,
Age: 54 years, Occu: Service,
R/o. Yashodhan Nagar, Parbhani.
14. Vishwas s/o Uttamrao Latpate,
Age: 57 years, Occu: Service,
R/o. Yashodhan Nagar, Parbhani.
15. Babar Khan Ab. Hamid Khan,
Age: 52 years, Occu: Service,
R/o. Rameshwar Plot, Parbhani.
16. Ganesh s/o Baburao Survase,
Age: 53 years, Occu: Service,
R/o. Dadarao Plot, Parbhani.
17. Prabhakar s/o Shambhudev Taralkar,
Age: 54 years, Occu: Service,
R/o. Pokharni, Tq. & Dist. Parbhani.
18. Ashok s/o Vaijnath Swami,
Age: 52 years, Occu: Service,
R/o. c/o. Nagar Parishad, Renapur,
Tq. & Dist. Parbhani.
19. Shahed Ali Yakub Ali,
Age: 52 years, Occu: Service,
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R/o. Yusuf Colony, Parbhani. ...Petitioners
VERSUS
1. The State of Maharashtra
Through the Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai-32
2. The Divisional Commissioner &
The President of Divisional Absorption
Committee, Aurangabad
3. The Collector, Parbhani
4. The Commissioner,
Parbhani City Municipal Corporation,
Parbhani ...Respondents
…
Mr. S. T. Shelke, Advocate for the Petitioners.
Ms. Vaishali Chaudhari, AGP for Respondent Nos 1 to 3
Ms. Rani Bharuka-Bora h/f. Mr. S. S. Bora, Advocate for
Respondent No.4
...
CORAM : NITIN B. SURYAWANSHI AND
ABASAHEB D. SHINDE, JJ.
RESERVED ON : 30.06.2026
PRONOUNCED ON : 27.07.2026
JUDGMENT (Per Abasaheb D. Shinde J.) :-
1. Rule. Rule is made returnable forthwith. With the consent
of the parties, the writ petition is taken up for final hearing at
the stage of admission.
2. By this Writ Petition, filed under Article 226 of the
Constitution of India, the petitioners have put forth the
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following prayer :-
“(B) Quash and set aside the order dt. 05.01.2022 passed by the
Commissioner, Parbhani City Municipal Corporation at Exh. H
and for that purpose issue necessary writ or order.
3. It is the case of the petitioners that they were initially
appointed by the erstwhile Municipal Council, Parbhani on
11.01.2007. The State Government framed Rules viz. the
Maharashtra Municipal Councils, Nagar Panchayats and
Industrial Townships State Services (Absorption, Recruitment &
Conditions of Service) Rules, 2006 (hereinafter called as “the
Rules of 2006”). Pursuant to the said Rules on
22.10.2010/04.11.2010 under the orders of Divisional
Commissioner, Aurangabad, the employees of erstwhile
Municipal Council from the Marathwada Division were absorbed
w.e.f. 01.02.2010. On 12.10.2011, the Collector, Parbhani passed
an order thereby actually absorbing the employees of Municipal
Council, Parbhani. By order dated 24.10.2011, the Chief Officer
of the then Municipal Council, Parbhani made pay fixation as
per the absorption orders passed by the Divisional Commissioner
and Collector respectively. On 01.11.2011, the Municipal
Council, Parbhani got converted into Municipal Corporation.
The Deputy Commissioner, Municipal Corporation, Parbhani by
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order dated 23.03.2017 cancelled the earlier pay fixation made
by the Chief Officer of the then Municipal Council by making re-
fixation of pay scale and initiating recovery of excess amount
paid to the petitioners.
4. It is further contended by the petitioners that on
26.04.2017, the Divisional Commissioner, Aurangabad issued
posting orders of the petitioners accordingly. In the meanwhile,
the petitioners challenged the order dated 23.03.2017 of the
Deputy Commissioner, Municipal Corporation, Parbhani before
this Court by filing Writ Petition No.5134 of 2017. This Court by
an order dated 16.04.2018 allowed the said Writ Petition,
thereby quashing the re-fixation of petitioner’s pay scale and
directing the Deputy Commissioner, Municipal Corporation,
Parbhani to give opportunity of hearing to the petitioners before
re-fixation of their pay scale. On 05.01.2022, the Deputy
Commissioner, Parbhani, Municipal Corporation by maintaining
his earlier order dated 23.03.2017 made re-fixation of pay scale
of the petitioners and directed recovery of excess amount paid to
them. The petitioners are, therefore, before this Court.
5. Heard learned Counsel for the petitioner, learned Counsel
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appearing for Respondent No.4- the Commissioner, Municipal
Corporation, Parbhani and learned AGP for Respondent Nos.2
and 3.
6. In order to ascertain as to whether the petitioners were
Class-III employees, this Court directed learned Counsel for
Respondent No.4 to take instructions in that regard. Pursuant to
the said directions, learned Counsel appearing for Respondent
No.4 by placing on record communication dated 01.04.2026
received from Respondent No.4 fairly concedes that the
petitioners are Class-III employees.
7. It is an admitted fact that, the petitioners were working
on Class-III post and the fixation of their pay scale was carried
out by the erstwhile Municipal Council and thereafter their pay
fixation was revised by the Deputy Commissioner, Parbhani.
8. In view thereof, we are of the considered view that, the
pay fixation of the petitioners was not on account of any fraud
or misrepresentation attributable to the petitioners nor any
undertaking was obtained from the petitioners to the effect that
in case of re-fixation of their pay scale, the petitioners would
repay the excess amount received by them. Therefore the action
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of Respondent No.4 thereby initiating recovery from the salary
of the petitioners is arbitrary and unreasonable.
9. We find that the case of the petitioners is squarely covered
by the ratio laid down by the Hon’ble Apex Court in the case of
State of Punjab and Others Vs. Rafiq Masih (White Washer) and
Ors. reported in (2015) 4 SCC 334, wherein the Hon’ble Apex
Court in paragraphs 15 and 18 observed as under :-
“15. Examining a similar proposition, this Court in Col. B.J.
Akkara v. Government of India, (2006) 11 SCC 709, observed
as under:
"28. Such relief, restraining back recovery of excess
payment, is granted by courts not because of any right in
the employees, but in equity, in exercise of judicial
discretion to relieve the employees from the hardship that
will be caused if recovery is implemented. A government
servant, particularly one in the lower rungs of service
would spend whatever emoluments he receives for the
upkeep of his family. If he receives an excess payment for a
long period, he would spend it, genuinely believing that he
is entitled to it. As any subsequent action to recover the
excess payment will cause undue hardship to him, relief is
granted in that behalf. But where the employee had
knowledge that the payment received was in excess of what
was due or wrongly paid, or where the error is detected or
corrected within a short time of wrong payment, courts will
not grant relief against recovery. The matter being in the
realm of judicial discretion, courts may on the facts and
circumstances of any particular case refuse to grant such
relief against recovery."
(emphasis supplied)
A perusal of the aforesaid observations made by this Court in
Col. B.J. Akkara's case (supra) reveals a reiteration of the legal
position recorded in the earlier judgments rendered by this
Court, inasmuch as, it was again affirmed, that the right to
recover would be sustainable so long as the same was not
iniquitous or arbitrary. In the observation extracted above, this
Court also recorded, that recovery from employees in lower
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rung of service, would result in extreme hardship to them. The
apparent explanation for the aforesaid conclusion is, that
employees in lower rung of service would spend their entire
earnings in the upkeep and welfare of their family, and if such
excess payment is allowed to be recovered from them, it would
cause them far more hardship, than the reciprocal gains to the
employer. We are therefore satisfied in concluding, that such
recovery from employees belonging to the lower rungs (i.e.,
Class-III and Class-IV - sometimes denoted as Group 'C' and
Group 'D') of service, should not be subjected to the ordeal of
any recovery, even though they were beneficiaries of receiving
higher emoluments, than were due to them. Such recovery
would be iniquitous and arbitrary and therefore would also
breach the mandate contained in Article 14 of the Constitution
of India.
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.”
10. In view of dictum of the Hon’ble Apex Court in the case of
Rafiq Masih (White Washer) (supra), we find that the writ
petition deserves to be allowed. The Writ Petition is, therefore,
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allowed in terms of prayer clause B.
11. Rule is thus made absolute in the above terms.
( ABASAHEB D. SHINDE, J. ) ( N. B. SURYAWANSHI, J. )
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