{1} wp812909.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8129 OF 2009 Vasudeo s/o Ichharam Bharambe, age: 58 years, Occ: Pensioner, R/o Near Milind Floor Mill, Shivajinagar, Faizpur, Taluka Yawal, District Jalgaon. Petitioner Versus 1 The State of Maharashtra, through its Secretary, Department of Urban Development, Mantralaya, Mumbai-32. 2 The Hon’ble State Minister, Department of Urban Development, Mantralaya, Mumbai. 3 The Director / Commissioner, Director of Municipal Council Administration, Mumbai, 3rd Floor, Government Transport Service Building, Sir Pochkhanwala Road, Worli, Mumbai-30. 4 The Municipal Council, Faizpur, Taluka Yawal, District Jalgaon, through its Chief Officer. Respondents Mr. S.S.Jadhavar, advocate for the petitioner. Mr. D.R.Kale, A.G.P for respondents no.1 to 3. Mr. G.D.Jain, advocate holding for Mr.A.B.Girase, advocate for Respondent No.4. {2} wp812909.odt CORAM : R.M.BORDE, JJ. DATE : 28 th January, 2011 ORAL JUDGMENT: 1 Heard learned Counsel for respective parties. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 The petitioner is assailing the order dated 12.01.2005, passed by the Director of Municipal Administration, whereby benefits of higher pay scale conferred on the employee since 07.11.1996 came to be withdrawn and the Municipal Council was directed to recover the amount paid to the employee towards conferment of higher pay scale. 3 The petitioner is in employment of Municipal Council and at the relevant time was serving as Head Clerk. By virtue of the order dated 07.11.1996, the Director of Municipal Administration approved the recommendation of Municipal Council to confer higher pay scale of Rs.1400-2600 on the petitioner employee in exercise of powers conferred under Section 76(2) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. It is noted in the order passed on 07.11.1996 that the pay admissible to the cadre of Head Clerk, as per Fourth Pay Commission recommendation, is Rs.1200-2040, however, {3} wp812909.odt considering other relevant circumstances, the Director of Municipal Administration, though it fit to confer higher pay scale of Rs.1400-2600 to the post of Head Clerk on the establishment of Municipal Council, in accordance with the decision of the Municipal Council dated 30th August, 1996. It is the contention of the petitioner that the Director of Municipal Administration, in the year 2005, has abruptly and without giving any opportunity to explain to the petitioner, withdrawn the order of conferment of higher pay scale and further directed recovery of amount paid in accordance with conferment of higher pay scale to the employee. It is directed by the Director, by virtue of order dated 12.11.2005, that the petitioner, in fact, is entitled to draw salary in the pay scale of Rs.1200-2040 and conferment of higher pay scale on the petitioner is erroneous. 4 Petitioner raised exception to the order passed by the Director of Municipal Administration by presenting Revision to the State Government. However, the Revision Application tendered by the petitioner, came to be rejected by the State Government in view of the order passed on 23.10.2009. 5 I have perused the orders passed by the Director of Municipal Administration as well as revisional order passed by the State Government. {4} wp812909.odt 6 Learned Counsel appearing for the petitioner has invited my attention to the judgment of Division Bench of this Court in the matter of Union of India Vs. Jangam Anant Amrutling, reported in 2006 (5) Bom. C.R. 125, and contended that the amount paid to the employee, in view of conferment of higher pay scale, cannot be recovered by the employer at belated stage. Learned Counsel for the petitioner further contends that petitioner was not instrumental in misleading the employer or suppressing any material facts while securing the order of conferment of higher pay scale. In similar circumstances, while quashing and setting aside identical order passed by the Union of India, the Division Bench, in the aforesaid judgment, while placing reliance on the judgment of the Apex Court in the matter of Shyam Babu Verma & others Vs. Union of India & others, reported in 1994 (2) SCC 521, has observed thus: “The learned Counsel appearing on behalf of the respondent, on the other hand, relied upon the judgment of the Supreme Court in the case of (Shyam Babu Verma and others Vs. Union of India and others), reported in 1994 (2) S.C.C. 521. It is an admitted position that the pay-scale of the respondent was sought to be rectified almost after a lapse of 11 years. Further, it is also admitted that the error was committed by the petitioners and the respondent was not in any way responsible. It is not the case of the petitioners that the error was on account of wrong representation made {5} wp812909.odt by the respondent. The Supreme Court in the case of Shyam Babu Verma (supra) has observed in identical case in para 11 as under: “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. January 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 January, 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.” 7 Considering the contentions raised by the petitioner and the law laid down by this Court as well as the Apex Court in the judgment cited supra, instant petition also deserves to be allowed and same is accordingly allowed. The impugned order passed by the Director of Municipal Administration on 12.01.2005, which has been confirmed by the State Government in Revision Application presented by the petitioner, in view of the order dated 23.10.2009, is quashed and set aside. It is made clear that the {6} wp812909.odt employer is not entitled to recover the amount paid to the petitioner-employee in consonance with conferment of higher pay scale in view of the order passed earlier on 07.11.1996. Learned Counsel appearing for Respondent-Municipal Council makes a statement that the Municipal Council would disburse the amount receivable by the petitioner-employee within a period of six months. The statement made by Respondent- Municipal Council is accepted. 8 Rule is accordingly made absolute. In the facts and circumstances of this case, there shall be no order as to costs. R.M.BORDE JUDGE adb/wp812909