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Bombay High Court

MONIKA BRIJ KUNJversusTHE STATE OF MAHARASHTRA AND ORS

Disposal
Disposed Off

Holding

The Court held that recovery of the alleged excess salary is impermissible as the petitioner was lawfully appointed on the graduate pay scale, performed duties of a higher post, and falls within the categories barred by the Supreme Court in Raiq Masih, thus the impugned order is quashed.

Summary

The petitioner, a teacher appointed in 2003 on a graduate (B.Ed.) pay scale, was later subjected to a recovery order for alleged excess salary, claiming she was paid beyond a sanctioned D.Ed. post. The audit raised objections for the financial years 2007-2009, and the education department sought recovery of Rs.3,33,752. The petitioner contended that she was duly qualified, taught secondary subjects, and that recovery was barred by the five‑year limitation and Supreme Court precedent in Raiq Masih. The respondents argued that the recovery was within the limitation period and that the appointment exceeded the sanctioned graduate post. The Court examined the appointment, the nature of duties, the applicable limitation, and the Supreme Court’s ruling, concluding that the recovery was impermissible. Consequently, the impugned recovery order was quashed and the writ petition was allowed.

Issues considered

  • Whether the recovery of alleged excess salary paid to the petitioner is permissible under law.
  • Whether the five‑year limitation period for recovery applies to the present case.
  • Whether a Class‑III employee can be required to repay salary received for performing duties of a higher post not sanctioned.
  • Whether the petitioner’s appointment complied with the sanctioned staffing pattern.

Subjects

  • salary recovery
  • public servant
  • limitation period
  • Class-III service
  • appointment
  • pay scale
  • education department
  • Raiq Masih case
  • excess salary
  • government employee

Judgment

                                                  38-WP-7205-2021-J.doc


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIRCUIT BENCH AT KOLHAPUR
                     CIVIL APPELLATE JURISDICTION

                    WRIT PETITION NO. 7205 OF 2021

Monika Brij Kunj,
Age: 47 years, Occupation: Service,
R/o. At/Post: Achara, Taluka: Malvan,
District: Sindhudurg.                        ...Petitioner.
               Versus
1.     The State of Maharashtra,
       Through the Secretary,
       School Education and Sports
       Department, Mantralaya,
       Mumbai 400 032.

2.      The Dy. Director of Education,
        Kolhapur Region, Kolhapur,
        Having oice at Somwar Peth,
        Hatti Mahal, Ganji Galli,
        Kolhapur 416 002.

3.      The Education Oicer (Secondary),
        Zilla Parishad, Sindhudurg,
        Having oice at Zilla Parishad
        Building, Sindhudurg Nagari-Oros.

4.      Shri. Bhagwati Education Society,
        Munage, Taluka: Devgad,
        District: Sindhudurg,
        Through its President/Secretary.

5.      Shri Bhagwati High School,
        Munage, Taluka: Devgad,
        District: Sindhudurg,
        Through its Head Master.

6.      Account Oicer, Inspection Unit
        (Education), Sindhudurg,
        Sindhudurgnagari-Oros.               ...Respondents.




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                               WITH
                INTERIM APPLICATION NO. 9672 OF 2024
The Education Oicer (Secondary)
Zilla Parishad Sindhudurg             ...Applicant.
In the Matter in Between :
Monika Brij Kunj                      ...Petitioner.
         Versus
The State of Maharashtra and Others   ...Respondents.
                            ——————
Mr. Prashant Bhavake for the Petitioner.
Mr. Siddheshwar B. Kalel, AGP for the Respondents-State.
                                ——————
                                  Coram :     Sharmila U. Deshmukh &
                                              Neeraj P. Dhote, JJ.
                                  Date      : August 28, 2026.
ORAL JUDGMENT : (Per Sharmila U. Deshmukh, J.)

1.      Rule.   Rule made returnable forthwith and heard inally by

consent.

2.      By the present petition, challenge is to the order dated 23 rd June

2021 passed by the Respondent No.2-Deputy Director, upholding the

order dated 8th April 2021 passed by the Respondent No.5-School and

the order dated 8th August 2011 passed by the Respondent No. 6-

Accounts Oicer, Inspection Unit (Education), initiating recovery against

the Petitioner.

3.      Briely stated, the facts of the case are that the Petitioner's father

expired on 4th February 1997 and the Petitioner submitted an

application for appointment on compassionate ground, which was

pending with the Respondent No. 3-Education Oicer.


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4.      The Respondent No. 3, in view of the vacancy of B.Sc., B.Ed.

teacher at Respondent No. 5-School, issued an order dated 8 th

December 2003, directing absorption of the Petitioner on the post of

‘Shikshan Sevak’, having qualiication B.Sc., B.Ed., and subsequently, the

Petitioner was appointed to the post of ‘Shikshan Sevak’ on probation

for three (3) years with efect from 10th December 2003 to 10th

December 2006.


5.      The individual approval was granted to the Petitioner’s

appointment to post of ‘Shikshan Sevak’ on 19 th December 2003. The

Petitioner's services came to be approved as ‘Assistant Teacher’ in

regular pay scale by the Respondent No. 3, vide order dated 26 th

January 2007.


6.      The Respondent No. 6 conducted an audit for the inancial years

2007–2008 and 2008–2009 and raised objections, including an objection

that though one post of D.Ed. Scale is vacant, teacher on B.Ed. Scale was

appointed and directed recovery of diference amount from 10 th

December 2013 from the Petitioner, being the diference in the B.Ed.

Scale and D.Ed. Scale.

7.      Subsequently, in the year 2015, the Respondent No. 5-School was

directed to deposit the alleged excess amount paid to the Petitioner. In

response, it was pointed out to the Respondent No. 3 that the request



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was made to provide surplus teacher for science subject and

accordingly, the Graduate Pay Scale was given to the Petitioner, and

hence, there is no question of recovery.

8.      As demand was raised upon the Petitioner, to deposit the amount

of Rs.3,33,752/-, which was the excess amount, the Petitioner iled a

detailed representation dated 5th April 2021 informing Respondent No.

5-School that since she is holding B.Sc., B.Ed. qualiication and

appointed on B.Ed, scale, there is no excess, and there can be no

recovery.

9.      The order of recovery came to be challenged by the Petitioner by

iling an application-cum-appeal with the Respondent No. 2-Deputy

Director of Education, which led to passing of the impugned order.

Hence, the present petition has been iled.

10.     Mr. Bhavake, learned counsel appearing for the Petitioner has

taken this Court through the records and proceedings and would point

out that the Petitioner was appointed on the B.Ed. Scale, possessing

B.Sc., B.Ed. qualiication, and was teaching Mathematic and Science in

the secondary section. He submits that accordingly, her appointment

was approved by the Education Oicer and the graduate pay scale was

being paid to her. He submits that though the Petitioner's appointment

was in the year 2003, it is only in the year 2011, that the audit objection


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was raised and recovery was sought to be initiated, which is beyond the

period of ive (5) years, drawing support from the decision of the

Hon'ble Apex Court in the case of State of Punjab & Ors. vs. Raiq

Masih (White Washer) & Ors.1


11.     He would further submit that though the representation stated

the Petitioner's qualiication being B.Sc., B.Ed. and discharging duties in

the secondary section, no cognizance has been taken of the same. He

would further submit that paragraph 18 of the decision in the case of

Raiq Masih (supra) speciically provides that recovery from the

employees belonging to Class-III and Class-IV, as well as recovery in

cases, where an employee has been wrongfully 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, is

impermissible in law. He submits that given the settled position in law,

the recovery could not have been initiated against the Petitioner.


12.     Mr. Kalel, learned AGP, would submit that the submission on the

aspect of period of ive (5) years will not apply in the present case, as

the Petitioner was appointed in 2003 and completed three (3) years of

probation in 2006. He points out that the audit objection was in respect

of the excess amount paid for 2007–2008 to 2008–2009, and the


1   (2015) 4 SCC 334.


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recovery was initiated by communication of 8 th August 2011 to the

Principal of Respondent No. 5-School, which is within the period of ive

(5) years.


13.     He would further submit that it cannot be disputed that there was

no vacant post of ‘Graduate Teacher’, when the Petitioner came to be

appointed, and against a D.Ed. post, the Petitioner has rendered

services and excess amount came to be paid, which is sought to be

recovered.

14.     We have considered the submissions and perused the record.

15.     The Petitioner was appointed in the year 2003 on the post of

‘Shikshan Sevak’, which services acquired deemed permanency after

period of three (3) years and approval was also granted by the

Respondent No. 3-Education Oicer to the Petitioner as ‘Assistant

Teacher’ in regular pay scale on 26th January 2007.

16.     The Petitioner was teaching the subjects of Mathematic and

Science in the secondary section, given her educational qualiication of

B.Sc., B.Ed., and was accordingly paid the graduate teacher pay scale.

The audit objection, which has been raised, was on account of the fact

that at the time of the appointment of the Petitioner in the year 2003–

2004, considering the staing pattern, the sanctioned post was of 1

Headmaster, 5 trained Graduate Teachers, 3 Undergraduate Teachers




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and 1 Graduate Teacher. The reason of the wrongful payment of salary

as a ‘Graduate Teacher’ was attributed to the fact that at the relevant

time, apart from the Headmaster, 6 Graduate Teachers were getting the

pay scale and, therefore, the Petitioner was being paid a graduate pay

scale, which was excess of the sanctioned staf. The sum and substance

of the reasoning for the recovery is that without any sanctioned post of

graduate teacher, a graduate pay scale was being paid to the Petitioner.

There is no material placed on record to dispute the position that the

Petitioner was teaching in the secondary section in the subjects of

Mathematics and Science. The Petitioner was, therefore, discharging

the duties of a higher post, which was not the sanctioned post at the

relevant time, and should have been teaching as an undergraduate

teacher in the primary section. The case of the Petitioner, therefore,

squarely falls within the categories, enumerated in paragraph 18(iv) of

the decision of the Hon'ble Apex Court in the case of Raiq Masih

(supra). The Hon'ble Apex Court has speciically held that such recovery

is impermissible in law. This is apart from the fact that the Petitioner

falls to Class-III service and, therefore, such recovery has also been held

to be bad by the Hon'ble Apex Court. Considering the law laid down by

the Hon’ble Apex Court, the order of recovery is impermissible.

17.     In so far as paragraph 2 of the impugned order is concerned, no

submissions have been canvassed in that respect. The submissions


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                        canvassed are in respect of the recovery of the alleged excess amount

                        and considering the decision of the Hon'ble Apex Court in the case of

                        Raiq Masih (supra), paragraph 1 of the impugned order is clearly

                        unsustainable. In light of the discussion above, paragraph 1 of the

                        impugned order dated 23rd June 2021 is hereby quashed and set aside.

                        18.     Resultantly, there can be no recovery of any excess amount from

                        the Petitioner.

                        19.     The Writ Petition is allowed in the above terms.

                        20.     Needless to clarify that as the impugned order insofar as the

                        recovery of the excess is concerned is set aside, necessary

                        consequences to follow.

                        21.     The Interim Application would not survive and the same stands

                        disposed of.

                        22.     If any amount is recovered on the basis of the impugned order,

                        the same to be accordingly adjusted.



                         [Neeraj P. Dhote, J.]                       [Sharmila U. Deshmukh, J.]

           Digitally
           signed by
           RAJU
RAJU       DATTATRAYA
DATTATRAYA GAIKWAD
GAIKWAD    Date:
           2026.09.01
           10:48:04
           +0530




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