Decided on March 10,2017

Dr.Ravindra S/O. Shamrao Darunte Appellant


Sangitrao S. Patil, J. - (1.) Rule, returnable forthwith. With the consent of the learned counsel for the contesting parties, heard finally.
(2.) The learned counsel for the petitioner submits that the petitioner, who was working as a Medical Officer, retired on 31.07.2015. After receiving information from respondent nos. 6 and 7 i.e. Chief Executive Officer and District Health Officer, respectively of Zilla Parishad, Aurangabad, respondent no.3 i.e. the Accountant General (A & E) passed an order dated 12.05.2016 withholding the amount of Rs.6,65,718/from death-cum-retirement gratuity and pension of the petitioner, on the ground that it was liable to be recovered from the petitioner, on account of excess payment made to him due to wrong fixation of his pay. According to the learned counsel for the petitioner, the mistake in fixation of pay of the petitioner was on the part of respondent nos.6 and 7. It was not because of any fraud played or misrepresentation made the petitioner that he got any excess amount. Therefore, relying on the judgments in the cases of Syed Abdul Qadir and Ors. v. State of Bihar and Ors. (2009) 3 SCC 475 , Shyam Babu Verma and Ors. v. Union of India (UOI) and Ors. (1994) 2 SCC 521 and State of Punjab v. Rafiq Masih (2015) 4 SCC 334, as well as the unreported common judgment/order of this Court in Writ Petition No. 7814/2014, Vilas s/o Ganpatrao Mahajan v. State of Maharashtra and others and the conneted Writ Petitions, decided on 02.07.2015 and Writ Petition No.11228/2015, Dr.Nivruti s/o Baliram Kalyan v. The State of Maharashtra and others, decided on 21.12.2015 , the learned counsel for the petitioner submits that the order dated 23.12.2015 passed by respondent no.7 and consequential order dated 12.05.2016 passed by respondent no.3 being illegal, may be quashed and set aside and the said respondents may be directed to pay the death cum retirement gratuity of the petitioner, as has already been fixed.
(3.) Respondent nos. 6 and 7 strongly opposed the petition by filing reply. The learned counsel for respondent nos.6 and 7 submits that the petitioner is not entitled to get benefits of the judgments referred to above. He submits that the petitioner was not a Class III or Class IV employee. At the time of fixation of his pay on 11.01.2010, the petitioner had given an undertaking that any excess payment due to incorrect fixation of pay or any excess payment detected in the light of discrepancy noticed subsequently will be refunded by him to the Government either by adjustment against future payments due to him or otherwise. He, further, pointed out to the consent letter dated 16.02.2016, executed by the petitioner assuring that he would refund the amount of excess payment or allow respondent nos.6 and 7 to recover that amount from his gratuity. The said undertakings have been produced with the reply. The learned counsel referred to Rule 134A of the Maharashtra Civil Services (Pension) Rules, 1982, ( "Pension Rules ", for short) where under, respondent nos.6 and 7 were empowered to recover the amount of excess payment made to the petitioner because of wrong pay fixation. Relying on the judgment in the case of High Court of Punjab & Haryana & Ors. v. Jagdev Singh Civil Appeal No.3500 of 2006, decided by the Apex Court on 29.07.2016, he submits that the petitioner is liable to refund the amount of excess payment received by him on account of wrong fixation of his pay and therefore, respondent nos.6 and 7 have rightly passed an order for recovery of the above mentioned amount and respondent no.3 also has rightly passed an order for recovery of the said amount from the gratuity and pension of the petitioner. He, therefore, prays that the petition may be dismissed.;

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