Abasaheb D. Shinde J.
1. Rule. Rule made returnable forthwith. By consent of the parties, Writ Petition is taken up for final hearing at the stage of admission.
2. By this Writ Petition under Article 226 of the Constitution of India, the petitioners have put forth the following prayers :-
“(A) By a writ of mandamus, orders or directions in the nature of mandamus, the respondent authority may kindly be directed to treat the petitioners on par with graduate teachers appointed after 2014.
(B) By a writ of mandamus, orders or directions in the nature of mandamus, the respondent authority may kindly be directed not to ask the petitioners to acquire the qualification of B.Ed. as per mandate of GR dated 13.10.2016.
(C) By a writ of mandamus, orders or directions in the nature of mandamus, the respondent authority may kindly be directed not to recover the amount of increment given to the petitioners for not acquiring the qualification of B.Ed.
(D) By a writ of mandamus, orders or directions in the nature of mandamus, the respondent authority may kindly be directed not to stop the increment of the petitioners for not acquiring the qualification of B.Ed.
(E) By a writ of mandamus, orders or directions in the nature of mandamus, the respondent authority may kindly be directed not to revert the petitioner to the lower pay-scale for not acquiring the qualification of B.Ed.
(F) Alternatively by a writ of mandamus, orders or directions in the nature of mandamus, the respondent No. 2 & 3 may kindly be directed to revert the petitioners to their earlier posts of assistant teachers and make payable them an increment and other benefits of the post of assistant teacher.”
3. It is the case of the petitioners that they possess the qualifications of graduation and a Diploma in Education (D.Ed.), Respondent No.2 appointed the petitioners as Graduate Teachers after following the due process of law. The details of the petitioners’ appointments are summarized in the following table :-
| Sr. No. | Name of Petitioners | Date of Appointment as Graduate Teacher |
| 1. | Shahnawaz Shahnoor Patel | 03.11.2006 |
| 2. | Mukund Bhagwanrao Kulkarni | 28.04.2008 |
| 3. | Bapu Dhondiba Dolas | 28.04.2008 |
| 4. | Sanjay Fakirchand Sarang | 31.01.2004 |
| 5. | Sanjay Ramkrishna Bhosle | 27.06.2001 |
| 6. | Shivaji Kacharu Lokhande | 27.04.2008 |
| 7. | Vilas Ramsing Jadhav | 31.10.2006 |
| 8. | Tohran Abrar Shaikh | 15.04.2011 |
| 9. | Babasaheb Madhavrao Mahale | 06.07.2005 |
| 10. | Muralidhar Dayaram Sonone | 15.04.2011 |
| 11. | Minakshi Amrutrao Shinde | 27.04.2008 |
| 12. | Ganesh Fakirba Tupe | 27.04.2008 |
| 13. | Santosh Laxman Kekate | 10.08.2011 |
| 14. | Vilas Bajirao Wagh | 18.07.2011 |
5. Learned Counsel for the petitioners submits that the petitioners have been serving as Graduate Teachers with Respondent Nos.2 and 3 since last more than 15-25 years. Merely because the petitioners have failed to acquire B.Ed. degree within a stipulated period, neither their increments can be withdrawn nor the amounts paid towards increments could be recovered from them. According to learned Counsel, the Graduate Teachers appointed after 2014 have been exempted from acquiring B.Ed. degree within a stipulated period, whereas the benefits conferred upon the petitioners are being withdrawn on that ground which is discriminatory and violative of Article 14 of the Constitution of India. He would submit that seeking recovery of the amounts of increments from the petitioners after several years of their appointments is contrary to the law laid down by the Hon’ble Apex Court in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and Others. reported in (2015) 4 SCC 334.
6. Per contra, learned Counsel for Respondent Nos. 2 and 3 relying on the affidavit-in-reply filed by them would submit that as per Government policy, the candidates appointed as Graduate Teachers during the relevant period were required to complete the B.Ed. course within a stipulated period of their appointments. Since the petitioners have failed to acquire the said Degree within a stipulated period, the respondents are justified in effecting recovery of increments paid to the petitioners. He, therefore, urged that the Writ Petition is devoid of any substance and the same deserves to be dismissed.
7. We have heard learned Counsel for the Petitioners, learned AGP for the State and learned Counsel appearing for Respondent Nos. 2 and 3 at length and perused the record.
8. At the outset, though the petitioners have put forth several other prayers; however, we do not propose to delve into the said prayers as we are mainly concerned with the aspect as to whether the increments once paid to the petitioners can now be recovered from them.
9. Indisputably, the petitioners are working on their respective posts for last several years. Some of the petitioners are now promoted to the post of Headmaster. It is not the case of the Respondent Nos. 2 and 3 that the petitioners were instrumental in any fraud or misrepresentation when they were appointed as Graduate Teachers or while granting them increments. Moreover, no undertaking whatsoever was taken from the petitioners to the effect that, if they fail to obtain B.Ed. degree within a stipulated period, they would refund the amounts of increments already paid to them. In the light of above, it would be profitable to rely on the underlying principles laid down by the Hon’ble Apex Court as regards recovery of excess amount paid to the employees. In the case of Shyam Babu Verma Vs. Union of India; (1994) 2 SCC 521, the Hon’ble Apex Court has held thus :
“11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. 1-1-1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from 1-1-1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same.”
10. The Hon’ble Apex Court in the case of Sahib Ram Vs. Union of India; 1995 Supp (1) SCC 18, made the following observations :
“4. Mr Prem Malhotra, learned counsel for the appellant, contended that the previous scale of Rs 220-550 to which the appellant was entitled became Rs 700-1600 since the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any force in this contention. It is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges to Rs 700-1600 but they insisted upon the minimum educational qualification of first or second class MA, MSc, MCom plus a first or second class BLib Science or a Diploma in Library Science. The relaxation given was only as regards obtaining first or second class in the prescribed educational qualification but not relaxation in the educational qualification itself.
5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.”
11. Similarly, the Hon’ble Apex Court in the case of B.J. Akkara Vs. Government of India; (2006) 11 SCC 709, has observed thus :
“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.”
12. It would also be apt to rely on the observations of the Hon’ble Apex Court in the case of Syed Abdul Qadir Vs. State of Bihar; (2009) 3 SCC 475, which read thus :
“58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess.
“59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. The learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.”
13. It would also be apposite to consider the authoritative parameters laid down by the Hon’ble Apex Court in the case of Rafiq Masih (White Washer) and Ors. (supra), which read thus :
“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.”
14. At the cost of repetition, we may observe that, since the petitioners have been rendering their services for the last 15-25 years and some of the petitioners are due for retirement in the near future and some of them have already superannuated, the cases of the petitioners certainly falls within Clauses (ii) to (v) of the authoritative parameters laid down by the Hon’ble Apex Court in the case of Rafiq Masih (White Washer) and Ors. (supra). We, therefore, are of the considered view that the action of Respondent Nos. 2 to 3 in initiating recovery of the increments already paid to the petitioners is unsustainable. In the result, the following order :-
ORDER:
(i) Writ Petition is partly allowed in terms of prayer clause (C).
(ii) Rule is thus made absolute in above terms.