1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1341 OF 2001 Ashok S/o Khanderao Rajurkar, age : 45 years, Occu. : Service, as Site Engineer, R/o "Saish", 159, Ganeshnagar, Nanded. .. Petitioner Versus 1. Shri Guru Govindsinghji College, of Engineering and Technology, Nanded. 2. The State of Maharashtra .. Respondents Shri A. B. Kadethankar, Advocate for Petitioner. Shri R. V. Ghuge, Advocate for Respondent No. 1. Shri S. K. Tambe, A.G.P. for Respondent No. 2. CORAM : NARESH H. PATIL & N. D. DESHPANDE, JJ. DATE : 24TH APRIL, 2009. ORAL JUDGMENT [PER NARESH H. PATIL, J] : 1. The petitioner was appointed as site engineer in the pay 2 scale of Rs. 680­40­1100­50­1250. During the course of service, petitioner was granted benefits of the IIIrd and IVth Pay Commissions from time to time. As Vth Pay Commission was made applicable to the petitioner's post his scale was revised to Rs. 2200­75­2800­100­3700. The petitioner received a notice dated 27.07.2000 issued by respondent No. 1 showing its inability to recommend the petitioner the benefits granted under Vth Pay Commission. The petitioner was granted additional increments while his initial appointment was made. The respondent No. 2 on 10.07.2000 communicated that such additional increment given were not proper. The respondent No. 2 further directed to recover the amount of additional increment from the date of appointment of the petitioner. The contention of the learned counsel for the petitioner is that petitioner was not at fault and once particular pay scale was attributed to an employee the benefits under the said pay scale cannot be snatched lateron. The respondents initiated proceedings for recovery of amount towards salary paid to the petitioner. The said action according to the counsel was without hearing the petitioner and without any notice. The learned counsel placed reliance on two judgments : 1. (1994) 2 SCC 521, Shyam Babu Verma v Union of Indian. 2. 2006 (5) Bom. C. R. 125 Union of India and others Vs. Jangam Anant Amrutling. 3 2. Learned counsel for respondent No. 1 Shri Ghuge submits that part of the arrears were already recovered from the petitioner and only an amount of Rs. 68,641/­ remains to be recovered. In the facts of the case both the counsel submit that the order passed by the authorities regarding recovery of the amount from the petitioner need not be interfered with. We have perused the judgment cited above in the case reported in 1994 (2) Supreme Court 521 Shyam Babu Verma and others Vs. Union of India and others. The Apex Court in the facts of the case observed that : "9. It was then urged on behalf of the petitioners that on principle of 'equal pay for equal work' they were entitled to pay scale of Rs. 330­560. It was pointed out that they have been performing the same nature of work, which was being performed by other Pharmacists Grade­B who have been given the scale of Rs. 330­560. The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principle of 'equal pay for equal work' should not be applied in a mechanical or causal manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of 'equal pay for equal work' to them. The principle of 4 'equal pay for equal work' has been examined in State of M. P. Vs. Pramod Bhartiya by this Court. Before any direction is issued by the Court, the claimants have to establish that there was no reasonable basis to treat them separately in matters of payment of wages or salary. Then only it can be held that there has been a discrimination, within the meaning of Article 14 of the Constitution. 11. Although we have held that the petitioners were entitled only to the pay scale of Rs. 330­480 in terms of the recommendations of the IIIrd 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. 330­560 but as they have received the scale of Rs. 330­560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 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." 3. In the case of 2006 (5) B.C.R. 125 Union of India and others Vs. Jangan Anant Amrutling, the Bench of Bombay High Court in the facts of the case observed in para No. 6 : 5 "6. 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 pay­scale 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 by the respondent. The Supreme Court in the case of Shyam Babu Verma (supra) has observed in identical case in para 11." 4. We find that the respondent No. 1 has already attached the amount of Rs. 70,710/­ and had initiated proceeding for the recovery of the remaining amount. 5. From the material placed on record and the facts of the case, we find that the remaining amount of Rs. 58,000/­ need not be recovered from the petitioner. The petitioner is aged of 54 and still he is working. This petition was filed in the year 2001. Interim relief was granted in favour of petitioner for some time. 6. We have perused the judgments cited above. In the facts of the case, we find that the request of the petitioners counsel that the 6 respondents be directed to refund the amount already recovered shall not be granted. We find that it would be appropriate and reasonable to direct the respondent not to recover the remaining amount of Rs. 58,000/­ from the petitioner. The petition was filed in the year 2001, near about 8 to 9 years have passed. The petitioner has also enjoyed relief already granted in his favour. 7. In the facts of the case we do not find it appropriate to direct the respondents to refund the amount already recovered from the petitioner. It would be just and appropriate to direct the respondent not to recover the amount of Rs. 58,000/­ from the petitioner. We find that these directions would be reasonable, just and appropriate in the peculiar facts of this case. The rule is made absolute in the above said directions. [ N. D. DESHPANDE, J ] [ NARESH H. PATIL, J. ] bsb/June09/wp1341.01