Bombay High Court
BANWIRSINGH GULABSINGH GOURversusTHE STATE OF MAHARASHTRA AND OTHERS
- Disposal
- DISPOSED OFF
Holding
Recovery of the alleged excess salary from the petitioner’s retirement benefits is not permissible; the recovery order is quashed and the respondents must refund the amount with interest.
Summary
The petitioner, a retired primary teacher, challenged a 2017 recovery order that sought to deduct Rs. 2,88,946 from his pension on the ground that he had received increments despite not obtaining a B.Ed. qualification. The petitioner argued that the pay scales for graduate primary teachers and primary teachers after 12 years of service were identical, and cited the Supreme Court’s decision in State of Punjab & Others v. Rafiq Masih. The High Court noted that the petitioner was a Class‑III employee who had retired and that recovery from retirement benefits, especially after a stay order, is impermissible. It held that the respondents were not justified in deducting the amount and that the recovery order was unsustainable. Consequently, the petition was allowed, the recovery order was quashed, and the respondents were directed to refund the amount with 6% simple interest.
Issues considered
- Whether the respondents could recover alleged excess salary from the petitioner’s retirement benefits despite a stay order.
- Whether the petitioner’s failure to obtain a B.Ed. qualification justifies cessation of increments from 01.07.2011.
- Whether recovery is permissible when excess payment has been made for a period exceeding five years or when the employee is within one year of retirement.
- Whether the recovery order should be set aside and the amount refunded with interest.
Subjects
- retirement benefits
- salary recovery
- pay fixation
- B.Ed. qualification
- stay order
- pension deduction
- interest on refund
- service rules
Judgment
2026:BHC-AUG:21479-DB
907 - WP Allowed, Direction 8W
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
907 WRIT PETITION NO. 9198 OF 2019
Banwirsingh S/o Gulabsingh Gour
Age : 42 Years, Occ : Service,
R/o Plot No. 104-A, Builder Housing
Co-operative Society, Nandanvan Colony,
Aurangabad. ... PETITIONER
...VERSUS...
1. The State of Maharashtra
(Through its Secretary,
Rural Development and Water
Conservation Department,
Mantralaya, Mumbai-32.
2. Zilla Parishad, Aurangabad,
Through its Chief Executive Officer.
3. The Education Officer (Primary),
Zilla Parishad, Aurangabad.
4. The Block Education Officer,
Panchayat Samiti, Paithan,
Tq. Paithan, Dist. Aurangabad. ... RESPONDENTS
________________________________________________________________
Adv. Dhakne Vijay A. for the Petitioner
Mrs. R. P. Gaur, AGP for State
Adv. Prashant R. Nangare for Respondent Nos. 2 and 3
________________________________________________________________
CORAM : NITIN B. SURYAWANSHI AND
VAISHALI PATIL-JADHAV, JJ.
DATE : 28.04.2026
ORAL JUDGMENT : [Per Nitin B. Suryawanshi, J.]
. Rule. Rule made returnable forthwith and heard finally with the
consent of the parties.
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2. The petitioner challenges the recovery chart dated 17.04.2017
issued by respondent No. 4 by which a recovery of Rs. 2,88,946/- is
proposed against the petitioner towards increments paid to him during
the period between 2004 to 2010.
3. The petitioner was appointed as a primary teacher in the year
1991. The first Time Bound Promotion Scheme benefits were granted to
the petitioner on completion of his 12 years of service on 01.08.2003. By
order dated 27.01.2004, the petitioner was appointed as graduate
primary teacher on a condition to acquire B.Ed. qualification within five
years. Appointment order mentions that if the said appointment is
refused then the petitioner will not be entitled to claim next higher pay
scale.
4. The petitioner failed to acquire B.Ed. qualification within the
stipulated period. However, as the pay scale of Rs. 5500-175-9000 in
respect of graduate primary teacher and higher pay scale of Rs. 5000-
150-8000 to the post of primary teacher after completion of 12 years of
service is one and the same, the petitioner continued to receive the
admissible pay and increments even after 01.07.2011. On 03.09.2016,
the petitioner was promoted as Headmaster as per seniority.
5. On 17.04.2017, respondent No. 4 has done pay fixation of the
petitioner, according to the petitioner, by wrongly calculating his basic
pay of Headmaster's post on the ground that petitioner failed to acquire
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B.Ed. qualification and therefore, his increments are required to be
stopped from 01.07.2011. A chart was also prepared showing recovery of
Rs. 2,88,946/- from the petitioner towards difference of the salary
payable to the petitioner and the salary which the petitioner received.
6. The petitioner preferred representation dated 11.03.2019
requesting the respondents not to recover the said amount in view of the
decision of the Apex Court in State of Punjab and others Vs. Rafiq Masih
(White Washer); (2015) 4 SCC 334. The petitioner has therefore,
approached this Court. While issuing notice on 25.07.2019, this Court
directed that "The respondent No. 2 shall not claim recovery pursuant to the
impugned communication."
7. During the pendency of this petition, the petitioner attained
age of superannuation on 31.07.2023. At the time of paying pensionary
benefits to the petitioner, a consent was obtained from the petitioner for
recovery of the amount of Rs. 2,89,946/- and the said amount was
deducted from the pensionary benefits of the petitioner.
8. In the affidavit-in-reply, respondent No. 3 - Education Officer
has tendered unconditional apology for deducting the said amount in
spite of stay order operating in favour of the petitioner.
9. Heard learned advocate for the petitioner, learned advocate for
the respondents and learned AGP for the State. Perused the record.
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10. It is not in dispute that petitioner is a Class-III Employee and is
retired from service. He has not played any fraud when his salary was
fixed by the respondents. There appears substance in the contention of
the petitioner that the pay scale of Rs. 5500-175-9000 of graduate
primary teacher and higher pay scale of Rs. 5000-150-8000 to the post of
primary teacher after completion of 12 years of service is one and the
same. This Court has consistently held that recovery on the basis of
undertaking obtained from the employee, at the time of his retirement of
his retirement is not justified, as the employee is pressurized to give
undertaking at the time of retirement or else his retiral benefits are
threatened to be withheld.
11. Therefore, we are of the view that respondents were not
justified in recovering the amount from the retiral benefits of the
petitioner, more so in view of stay granted by this Court. The said
recovery is therefore unsustainable. The case of the petitioner is also
covered by the decision of the Apex Court in Rafiq Masih (supra),
wherein it is categorically held that recovery from the retired employees
or employees who are due to retire within one year of the order of
recovery is not permissible. It is further held that recovery from
employees where excess payment has been made for a period exceeding
five years prior to the order of recovery is also not permissible.
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12. For the aforestated reasons, the impugned action of the
respondents of deducting amount of Rs. 2,88,946/- from the retiral
benefits of the petitioner cannot be sustained.
13. In the result, Writ Petition is allowed.
14. The impugned order dated 17.04.2017 to the extent it directs
recovery from the retiral benefits of the petitioner is hereby quashed and
set aside.
15. The respondents shall refund the amount of Rs. 2,88,946/- to
the petitioner within eight (8) weeks from the date of receipt of copy of
this order.
16. Since the recovery is made in spite of stay order passed by this
Court, we accept the unconditional apology tendered by respondent No.
3. However, in facts of the present case, we direct the respondents to pay
simple interest at the rate of 6% per annum on the refunded amount
from the date of recovery till its actual realization.
17. Rule is made absolute in above terms.
[VAISHALI PATIL-JADHAV, J.] [NITIN B. SURYAWANSHI, J.]
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