(1) WP 8182.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8182 OF 2011 Vilas Balkrishna Chiplunkar Age : 69 years, Occu.: Nil-Pensioner, R/o: Plot No.132, 'Samarpan' Bungalow, Suman Colony, Dharmadhikari Mala, Behind Premdan Hotel, Savedi, Ahmednagar PETITIONER VERSUS 1. The State of Maharashtra Through G.P. High Court, Aurangabad Bench 2. The Director of Vocational Education and Training, 3, Mahapalika Marg, V.T. Mumbai 3. The Accountant General (A & E) I, Maharashtra, 101, Maharshi Karve Marg, Mumbai 400 020 4. The Treasury Officer, Ahmednagar RESPONDENTS ..... Mrs. Manjusha Deshpande, Advocate for the Petitioner. Mr. S.G. Nandedkar, A.G.P. for the Respondent-State. ..... CORAM : B.R. GAVAI AND M.T. JOSHI, JJ. DATE OF RESERVING : 30TH NOVEMBER, 2011 DATE OF PRONOUNCING: 15TH DECEMBER, 2011 JUDGMENT (PER - M.T. JOSHI, J.): 1. Rule. Rule made returnable forthwith. By consent of the parties, the Petition is heard finally. (2) WP 8182.2011 2. The petitioner by way of present Petition is challenging the decision of the Maharashtra Administrative Tribunal passed in Original Application no.177 of 2011 dated 19.08.2011. 3. The petitioner has filed the said Original Application, aggrieved by the downward revision of his pension after a period of 4 years from the date of his superannuation and the consequent recovery of the excess payment of pension. The said application was dismissed by the learned Member of the Maharashtra Administrative Tribunal. 4. The petitioner was working as Assistant Engineering Superintendent with Government Technical High School, Ahmednagar at the time of his superannuation on 31.07.2001. During his service period, due to the implementation of the recommendation of the 5th Pay Commission with effect from 01.01.1996 his pay was fixed by the concerned authorities at the rate of ` 10,100/- on 01.01.1996 in the revised pay scale of 6500-200-10500. At that time, an undertaking was obtained from the petitioner (3) WP 8182.2011 to the effect that in case the pay fixation is found to be wrong, recovery of excess amount paid to him may be made. Thereafter, after four years of the superannuation, the Headmaster of the Government Technical High School, Ahmednagar vide his letter dated 01.07.2010 had forwarded a proposal to Accountant General for reduction of pension to the disadvantage of the petitioner by informing that the fixation of pay of the petitioner at the time of grant of benefit of the recommendation of the 5th Pay Commission was wrong. Therefore, his pension at the rate of ` 5350/- per month with effect from 01.08.2010 was reduced to ` 4870/- per month. In the situation, the Senior Accountant Officer of the Principal Accountant General (Accounts and Entitlement), Maharashtra vide letter dated 5.2.2011 directed reduction in pension, gratuity and commutation of part of the pension of the petitioner. 5. Aggrieved by the said order, the petitioner filed the Original Application. The learned Member of the Maharashtra Administrative Tribunal dismissed the Application, principally on the ground that the petitioner had given an undertaking at the time of (4) WP 8182.2011 receiving all the benefits of the revised pay fixation of recovery of the excess amount, if any. 6. Learned Advocate Mrs. Manjusha Deshpande appearing for the petitioner relied on Syed Abdul Qadir and ors. Vs. State of Bihar and ors. 2009 (1) Supreme 163, wherein it has been held that if any amount is paid to the employee, because of any inaction, negligence or carelessness of the concerned official, the employee cannot be punished by effecting the recovery of the same. It was further held that if it was found that the excess payment of the salary was not paid on account of any misrepresentation or fraud on the part of the employee, the recovery cannot be directed merely on the ground that subsequent to the payment of the salary, the interpretation of rule or order was found erroneous. 7. In the present case, after four years of superannuation of the petitioner on the basis of a letter issued by the Headmaster, the Senior Accounts Officer of the Principal Accountant General (Accounts and Entitlement), Maharashtra had revised the (5) WP 8182.2011 pension, which is disadvantageous to the petitioner. In view of this matter, merely because the petitioner has given an undertaking, he cannot be penalised for the wrong fixation of pay made by his superior and compelled to shell out a handsome amount from his pension being received in the old age. 8. In view of this matter, the Petition is therefore allowed only to the extent of change in the fixation of pension and other consequential fixation. Since the issue of recovery of rent as is referred to in the letter dated 09.09.2010 sent by the Deputy Director of Vocational Education and Training is not subject matter of the present dispute in the Writ Petition, the said recovery shall not be affected by the present order. 9. Rule is therefore made absolute in the above terms with no order as to costs. Sd/- Sd/- [M. T. JOSHI, J.] [B. R. GAVAI, J.] arp/