-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.9790 OF 2004 NO.9790 OF 2004 NO.9790 OF 2004 Shri Sadashiv Rajaram Kulkarni ...Petitioner v/s The State of Maharashtra and anr. ...Respondents Mr R.P. Late for Petitioner. Mr S.P. Chincholikar, AGP for Respondent Nos.1 and 2. CORAM : D.K. DESHMUKH AND J.H. BHATIA JJ. DATE : 3RD APRIL 2008. -2- P.C. :- 1. By this petition, the petitioner challenges the action of the respondents of deducting the amount of Rs.39,580/- from the amount of pension payable to him. The relevant facts are that the petitioner was working under respondent No.1 - District and Sessions Judge, Kolhapur. While he was working as Assistant Superintendent, two advance increments were granted to him on 1st October 1987. The petitioner retired from service on 1st April 1998. He was given pension. The Government of Maharashtra decided to pay the difference of wages as per the recommendation of Vth Pay Commissioner to retired employees in three instalments. In March 2001, an amount of Rs.25,547/- was deducted from the amount payable to the petitioner and in the year 2002, an amount of Rs.14,033/- was deducted from the pension payable to the petitioner, totally an amount of Rs.39,580/- was deducted. This deduction is challenged in this petition. 2. According to the petitioner, the respondents are not justified in deducting this amount from the pension payable to him. According to the respondents, in 1987, two advance increments were released to the petitioner, however, the release of the increments to -3- the petitioner was on a mistake and was contrary to the Government Resolution dated 24th September 1980. This mistake was discovered when the papers were sent to the Pay Verification Unit and they raised an objection. It is not in dispute before us that the release of two advance increments to the petitioner in 1987 was a mistake and was contrary to the Government Resolution. The only question raised before us is whether deduction of the amount paid to the petitioner at such a late stage is justified. According to the petitioner, the respondents are not justified in making deduction even assuming that two advance increments were released by mistake. He relies on two judgments of the Supreme Court, one in the case of Sahib Ram v/s State of Haryana and others, reported in 1995 Supp (1) SCC 18 and the other in the case of Union of India and others, v/s M. Bhaskar and others, reported in (1996) 4 SCC 416. The learned counsel appearing for respondents, on the other hand, submits that as the increments were released by mistake, the respondents are entitled to recover it. It is submitted that the petitioner cannot keep the amount which he has received. There is no dispute before us that two advance increments were released in favour of the petitioner in the year 1987 contrary to the relevant Government Resolution. It is also not in dispute before us that therefore, the Government is entitled to refix the pension of the petitioner in accordance with law. -4- The only grievance of the petitioner is that he has not contributed anything in the release of two increments and as the two advance increments came to be released by the respondents without there being any contribution from the petitioner, the Government is not justified in recovering that amount at such a late stage. It appears that the Supreme Court has considered similar question in its judgment in the case of Sahib Ram (supra). The observations of the Supreme Court in paragraph 5 of that judgment, in our opinion, are relevant. They read as under :- "5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. under the circumstances the amount paid till date may not be recovered from the appellant. The -5- principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." . From the observations of the Supreme Court it appears that if the employee has not contributed to the mistake and the amount is not paid to him because of any misrepresentation made by him, then it would be unfair to recover the amount from him after expiry of a long period. In view of the law laid down by the Supreme Court in its judgment in Sahib Ram’s case, in our opinion, the respondents cannot be permitted to make the deductions. In our opinion, therefore, following order would meet the ends of justice. 3. The respondents are directed to refund to the petitioner the amount of Rs.39,580/- deducted from his total amount payable as expeditiously as possible and in any case within a period of eight weeks from today. It is clarified that this order will not come in the way of the respondents to refix the pension to which the petitioner is entitled in accordance with law, ignoring the two advance increments paid to him. Rule is made absolute with no order as to costs. . Parties to act on the copy of this order duly -6- authenticated by the Sheristedar / Private Secretary of the Court. . Certified copy expedited. ( D.K. DESHMUKH J.) ( J.H. BHATIA J.)