In a significant ruling of Varsha Kapil Doshi v/s The State of Maharashtra, Through the Additional Chief Secretary, Mumbai & Another, the Bombay High Court has quashed an order seeking to recover salary increments paid to a retired Assistant Public Prosecutor due to the delayed completion of a Marathi language exam. The petitioner, who had served in the Maharashtra Police as a Prosecutor and was later promoted to Assistant Public Prosecutor, challenged an order by the Maharashtra Administrative Tribunal (MAT) that upheld the recovery of increments from 1995 to 2015, citing non-completion of the mandatory Marathi Language Examination within the prescribed period.
Background of the Case:
The petitioner, who was appointed as a Police Prosecutor in August 1993 and later promoted to Assistant Public Prosecutor in May 1996, was required to pass the Lower and Higher Marathi Language Examination as per the Maharashtra Government Servant (Marathi Language Examination) Rules, 1987. The deadline for this was set for August 1995. However, the petitioner cleared the examination only in April 2015. Despite this delay, the petitioner continued to receive salary increments from August 1995 to January 2015.
In November 2018, the respondents (Maharashtra Government) issued an order to recover the increments paid during this period. Aggrieved by this recovery order, the petitioner filed an Original Application (OA) before the Maharashtra Administrative Tribunal, challenging the recovery action. However, the Tribunal dismissed the petition in September 2019, arguing that the petitioner had failed to disclose that she had not cleared the examination within the stipulated time and continued to receive increments.
Court's Analysis:
The petitioner argued that the respondents had admitted in their reply to the Tribunal that it was due to their own error that the increments had been released. The petitioner further stated that the respondents had acknowledged that her work had not been affected by her delayed completion of the language exam. She also cited the Supreme Court's decision in the case of State of Punjab v. Rafiq Masih (2015) to emphasize that recovery of excess payments made in good faith, especially when an employee is near retirement, is not justified.
The respondents countered by arguing that the decision in Rafiq Masih applied only to Class-III and Class-IV services, not to a Class-I officer like the petitioner. They further contended that the petitioner had suppressed her non-completion of the exam and misrepresented the facts.
Upon reviewing the case, the High Court noted that while the petitioner had indeed not cleared the Marathi exam on time, the respondents had themselves admitted that the increments were released due to their own mistake. Importantly, the Court found no evidence suggesting that the petitioner had concealed her failure to clear the exam. It was also noted that the petitioner’s work had not been hindered by the delay in passing the exam.
Supreme Court's Ruling in Rafiq Masih Case:
The High Court referred to the Rafiq Masih judgment, which laid down principles under which recovery from employees is impermissible. These include:
- Recovery from Class-III and Class-IV employees.
- Recovery from retired employees or those who are due to retire within a year.
- Recovery from employees when excess payments have been made for more than five years.
- Recovery when an employee has wrongfully been required to discharge duties of a higher post and paid accordingly.
In this case, the petitioner was due to retire within a few months, and the recovery order sought to reclaim increments paid over a period of more than 20 years. The Court ruled that, under these circumstances, recovery was unjustifiable.
Conclusion:
The Bombay High Court set aside both the recovery order and the MAT's decision, noting that the recovery of increments would be harsh, arbitrary, and inequitable in this instance. The Court observed that the employer's mistake in releasing the increments, combined with the imminent retirement of the petitioner, tipped the balance in favor of the employee.
As a result, the order of recovery issued in November 2018 was quashed. The petitioner was entitled to retain the increments paid to her from 1995 to 2015 and to receive her pension calculated accordingly, taking into account the date she cleared the requisite exams.
The Court’s ruling underscores the importance of fairness in administrative actions and reinforces the principle that recovery actions should not be punitive, particularly when they may cause disproportionate hardship to employees, especially those nearing retirement.
Order:
The communication of recovery dated November 17, 2018, was quashed.
The Maharashtra Administrative Tribunal's order was set aside.
Excess increments paid between 1995 and 2015 were deemed non-recoverable.
The petitioner was entitled to receive pension benefits from the date she cleared the exam.
