VINAY RAGHUNATH SONAMBEKAR AND ANRversusTHE STATE OF MAHARASHTRA THR. PRINCIPAL SECRETARY AND ORS

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                    WRIT PETITION NO. 8507 OF 2022
Vijay Raghunath Sonambekar & Anr                                          ...Petitioner
       Versus
The State of Maharashtra & Ors                                         ...Respondents
                                 _______
Mr. Kiran Bapat i/b Mr. Prajakt, Mr. M. Arjunwadkar a/w P.S. Hande, O.S Shinde
and J.B. Gharat for Petitioner.

Mr. Neel Helekar a/w Mr. Akhilesh Adhav for Respondent No. 4 and Mr. A.R.
Deolekar AGP for Respondent-State.
                                       _______

                                     CORAM:         G. S. KULKARNI &
                                                    DR. NEELA GOKHALE, JJ.
                                     DATE:          31st AUGUST 2026
P.C.:

1.      Rule. Rule made returnable forthwith. With the consent of the learned

counsel for the parties, the petition is taken up for final hearing.

2.      By this petition, the Petitioners seek to quash and set aside the Order dated

13th September 2021 issued by Respondent No. 3, Assistant Director of AYUSH

(Mumbai), which was communicated to the Respondent No.4, the In charge

Principal, A.S.S. Ayurved Mahavidyalaya, with a request to deduct three non-

compounded advanced increments from the Petitioners’ salary and the

consequential letter dated 28th September 2021, and the further letters dated 20 th

October 2021 and 25th October 2021, in that regard.

3.      The Petitioner Nos. 1 and 2 hold post-graduate qualifications (M.D./M.S.)

in Ayurveda and are working as Professor and Associate Professor respectively, in

the A.S.S Ayurved Mahavidyalaya, a fully aided institute, since 1 st April 2004.


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Under clause 2(5)(ii) of the Government Resolution dated 8 th September 2011,

teachers possessing M.D./M.S. qualifications were held entitled to 3 Non-

Compounded Advanced Increments as an incentive. By a clarificatory circular

dated 26th June 2012, Respondent No.1 fixed the effective date of this incentive as

1st April 2011 for teachers working at fully aided colleges. Pursuant thereto, the

Petitioners were granted and paid the said 3 increments with effect from 1 st April

2011, along with other similarly placed teachers.

4.        While revising the Petitioners’ pay under the Seventh Pay Commission

scales vide Government Resolution dated 18 th May 2021 (effective from 1st

January 2016), Respondent No. 4 first deducted the 3 Non-Compounded

Advanced Increments from the Petitioners’ salaries. Thereafter, without issuing any

show cause notice or affording an opportunity of hearing, Respondent No. 3, by

the impugned Order dated 13th September 2021, directed the withdrawal of the

said increments with effect from 01st April 2011 and the recovery of the resultant

amount from the Petitioners' salaries. The Petitioners' signatures were obtained on

a letter dated 25th October 2021 on the understanding that the excess payment

would be adjusted against arrears due under the Seventh Pay Commission.

5.        Heard the learned Mr Kiran Bapat, learned counsel for the Petitioners, Mr

Neel Helekar, learned counsel for the Respondent No. 4, and Mr A.R. Deolekar,

learned AGP for the Respondent-State. With their assistance, we have perused the

record.

6.        It is settled law that no order withdrawing a financial benefit already

extended to an employee, much less an order directing recovery of amounts paid


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over several years, can be passed without affording the employee concerned an

opportunity of hearing. This flows from the basic principles of natural justice and

Article 14 of the Constitution of India. Examining a similar proposition, the

Supreme Court in B. J. Akkara v. Government of India1, 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 emolumenis 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."

7.      In State of Punjab and others v. Rafiq Masih 2 the Supreme Court held that

recovery of excess payment made to an employee, particularly where such payment

was not occasioned by any misrepresentation or fraud on the part of the employee,

ordinarily is not to be effected, especially where such recovery would cause undue

hardship, or where the recovery is sought to be made after a significant lapse of

time from the date of the erroneous payment. Paragraph No. 10 of Rafiq Masih

(supra) reads thus:

       “10.      In view of the afore-stated constitutional mandate, equity and good
       conscience, in the matter of livelihood of the people of this country, has to be the
       basis of all governmental actions. An action of the State, ordering a recovery from an
       employee, would be in order, so long as it is not rendered iniquitous to the extent,
1
        (2006) 11 SCC 709
2
        (2014) 8 SCC 883.



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       that the action of recovery would be more unfair, more wrongful, more improper,
       and more unwarranted, than the corresponding right of the employer, to recover the
       amount. Or in other words, till such time as the recovery would have a harsh and
       arbitrary effect on the employee, it would be permissible in law. Orders passed in
       given situations repeatedly, even in exercise of the power vested in this Court under
       Article 142 of the Constitution of India, will disclose the parameters of the realm of
       an action of recovery (of an excess amount paid to an employee) which would breach
       the obligations of the State, to citizens of this country, and render the action
       arbitrary, and therefore, violative of the mandate contained in Article 14 of the
       Constitution of India.”

8.      A perusal of the aforesaid observations made by the Supreme Court in the

aforesaid decisions reveals a reiteration of the legal position that the right to recover

would be sustainable so long as it was not iniquitous or arbitrary.


9.      In the present case, it is not in dispute that the three Non-Compounded

Advanced Increments were sanctioned to the Petitioners pursuant to a

Government Resolution dated 08th September 2011 and paid to them regularly for

close to a decade thereafter. More than eleven years later, the impugned Order

dated 13th September 2021 proceeds to withdraw this benefit and directs recovery

without any show cause notice, without any hearing, and without giving reasons

based on which Respondent No.2 came to conclude that the benefit was wrongly

extended. This is contrary to the principles of natural justice and cannot be

sustained. Such a civil suit for recovery of the paid amounts would be hopelessly

time barred.

10.     In view of the settled legal position and the factual matrix in the present

case, we have no hesitation in quashing and setting aside the impugned Order

dated 13th September 2021, issued by Respondent No. 3, Assistant Director of



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                       AYUSH (Mumbai), the consequential letter dated 28th September 2021, and the

                       further letters dated 20th October 2021 and 25th October 20219. The Writ Petition

                       is thus allowed.

                       11.    Accordingly, the Rule is made absolute.

                       12.    No costs.




                       (DR. NEELA GOKHALE, J)                                (G. S. KULKARNI, J.)


          Digitally
          signed by
          AJIT
AJIT      RAMESH
RAMESH    PATHRIKAR
PATHRIKAR Date:
          2026.09.05
          16:16:41
          +0530




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