-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.1690 OF 2004 NO.1690 OF 2004 NO.1690 OF 2004 Shri Sunil N. Bhavaskar and ors. ...Petitioners v/s Kalyan Dombivli Municipal Corporation, Kalyan, District Thane ...Respondents Mr V.K. Pradhan for Petitioners. Mr A.S. Rao for Respondents. CORAM : D.K. DESHMUKH AND V.M. KANADE JJ. DATE : 18TH MARCH 2008. -2- P.C. :- 1. By this petition, the petitioners challenge the order dated 5th February 2004 passed by the respondent - Corporation to the extent that it directs recovery of payment made to the petitioners as Accountants from March 1997 till February 2004. The relevant facts are that the respondent - Corporation issuedd an order dated 18th March 1997 promoting the petitioners to the post of Accountant. Though the order recites that the promotion is for a period of six months, it appears that the petitioners continued till February 2004. By order dated 5th February 2004, the petitioners have again been promoted the post of Accountant on regular basis. However, the order states that they will be entitled to the pay of the post of Accountant only from February 2004 and any payment made to them as Accountant before that date is to be recovered from them. The order is for recovery of payment made to the petitioners right from March 1997 though in the order dated 5th February 2004 itself it is stated that the posts were sanctioned from December 1999. 2. We have heard learned counsel for both the -3- sides. It is clear from the record and the order dated 5th February 2004 that though the petitioners were promoted on temporary basis to the post of Accountant by order dated 18th March 1997 for a period of six months, they continued working in the post and they were paid by the Corporation as Accountant. In our opinion, as admittedly the petitioners have worked in the post of Accountant right from March 1997 and they have also been paid salary of that post, the Corporation is not justified in recovering any part of the salary paid to the petitioners because the petitioners have admittedly worked in that post. The only justification given by the Corporation is that in the year 1997 when the promotion order was made, the Government had not sanctioned the posts and therefore, according to the Corporation as the post were sanctioned in December 1999, the Corporation should be permitted to make recovery from the period March 1997 to December 1999. In our opinion, even if the post is not sanctioned, because the Corporation made the petitioners to work in the post, the Corporation is liable to make payment for the work performed by the petitioners. If the posts were not sanctioned and still the promotions were given, it is for the Corporation to find out who were responsible for making those orders and if any recovery is to be made, should be made from those persons who were responsible for ordering promotions without there -4- being sanctioned posts. The recovery cannot be made from the petitioners because admittedly the petitioners have worked in those posts. In the result therefore, petition succeeds and is allowed. The order dated 5th February 2004 to the extent that it directs recovery of payment made to the petitioners from March 1997 as Accountants is set aside. Rule is made absolute accordingly with no order as to costs. . Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of the Court. . Certified copy expedited. ( D.K. DESHMUKH J.) ( V.M. KANADE J.)