{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4740 OF 2009 1. The State of Maharashtra 2. The Superintending Engineer, Minor Irrigation (Local Sector) Circle Nashik 3. The Executive Engineer Minor Irrigation (Local Sector) Division Jalgaon 4. The Accountant General, Maharashtra (A and E) I, Pratibha Bhavan, 101 Maharshi Karve Mag Mumbai 400 020 PETITIONERS VERSUS Renukadas Raghunath Deshmukh Age-60 years, Occ-Nil Pension R/o Narayan Nagar, Near Banti Building Latur 413 531 RESPONDENT ....... Mr.K.B.Chaudhari, Addl.G.P. for petitioners ....... [CORAM : P.V.HARDAS, and A.V.POTDAR, J.J.] DATE : 22nd July 2009 ORAL ORDER (PER A.V.POTDAR, J.): 1. By the present writ petition, under Article 227 r/w 226 {2} of the Constitution of India, the Government of Maharashtra, through its Superintending Engineer, Minor Irrigation (Local Sector) Nashik Circle as well as Jalgaon Division, has challenged the judgment and order dated 06.06.2008 passed by the Maharashtra Administrative Tribunal, Bench at Aurangabad in Original Application No.318/2007. 2. The facts, which gave rise to file the present writ petition, can be summarized as follows- The present respondent stood retired from Government service on attaining the age of super annuation, while working as a Sectional Engineer with petitioner No.3. It was intimated to the respondent by communication dated 20.03.2007 that an objection was raised in respect of his pay fixed by Lower Terna Canal Division No.2, Latur as per pay fixation of 01.04.1981 and hence vide order No.76/2006 dated 24.04.2006 the same was canceled and rectified accordingly. Along with the said communication 6 copies of the order of rectified pay fixation and temporary pension fixed, in triplicate, was forwarded to the respondent. Due to this rectification in the pay fixation, the extra amount, allegedly, paid to the respondent was sought to be recovered with direction to take note of the same in his service book. It appears that by filing Original Application No.318/2007, the respondent had challenged the said communication dated {3} 20.03.2007 and also requested for directions to the present petitioners not to revise the pay, which has been made applicable to him for last more than 25 years and to continue to treat the pay which he was drawing on 31.08.2005. Vide judgment and order dated 06.06.2008, the Original Application filed by the respondent came to be allowed by setting aside the order of recovery of Rs. 1,41,143/- by holding that the Accountant General has correctly fixed the pension of the present respondent on the basis of the pensionable pay, as shown vide letter dated 03.06.2008. The Tribunal has also observed that no directions can be given to revise the pay of present respondent as on 01.04.1981 by rectifying the alleged mistake. It is also directed to expedite the payment of pensionary benefits to the present respondent in accordance with the rules. This judgment and order is under challenge by way of present writ petition. 3. Heard learned Addl.G.P. Mr.K.B.Chaudhari for the State, petitioners. Perused the impugned judgment with the assistance of learned AGP. It is nowhere the case of the petitioners that the pay of the respondent was fixed on some misrepresentation on the part of the respondent or while fixation of the pay any fraud was played by him on the petitioners. In this premise, it is necessary to consider the ratio laid down by the Apex Court in the judgment reported in AIR 1994 SC 2480 in the matter of “Bhagwan Shikla V/s Union of India”. The Apex Court has observed in the said judgment that the justification furnished {4} by the respondents for reducing the basic pay that the same had been “wrongly” fixed initially and that the position had continued due to “administrative lapses” for about twenty years and when it is realized it was decided to rectify the mistake, cannot be accepted. The Apex Court in the judgments reported in 1995 Sulpp 1 SCC 18 in the matter of Sahib Ram V/s State of Haryana, 1994 (2) SCC 521 in the matter of Shyam Babu Verma V/s Union of India, 1996 (4) SCC 416 in the matter of Union of India V/s M.Bhaskar and AIR 1997 SC 2776 in the matter of V.Gangaram V/s Regional Joint Director” has also observed that the excess payment was not made on account of any misrepresentation or fraud on the part of the employee. Such excess payment was made by the employer by applying a wrong principle for calculating the pay / allowance or on the basis of a particular interpretation of rule / order, which is subsequently found to be erroneous. In such circumstances, recovery of excess payment is restrained by the Court in exercise of judicial discretion. Considering the ratio laid down by the Apex Court and in view of the fact that the analysis done by the Tribunal is not perverse and erroneous, the impugned order does not require any interference at the hands of this Court. 4. In the result, the writ petition, which is sans merits is dismissed in limine with no order as to costs. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/wp4740-09