907 - WP Allowed, Direction 8W IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 907 WRIT PETITION NO. 9198 OF 2019 Banwirsingh S/o Gulabsingh Gour Age : 42 Years, Occ : Service, R/o Plot No. 104-A, Builder Housing Co-operative Society, Nandanvan Colony, Aurangabad. ... PETITIONER ...VERSUS... 1. The State of Maharashtra (Through its Secretary, Rural Development and Water Conservation Department, Mantralaya, Mumbai-32. 2. Zilla Parishad, Aurangabad, Through its Chief Executive Officer. 3. The Education Officer (Primary), Zilla Parishad, Aurangabad. 4. The Block Education Officer, Panchayat Samiti, Paithan, Tq. Paithan, Dist. Aurangabad. ... RESPONDENTS ________________________________________________________________ Adv. Dhakne Vijay A. for the Petitioner Mrs. R. P. Gaur, AGP for State Adv. Prashant R. Nangare for Respondent Nos. 2 and 3 ________________________________________________________________ CORAM : NITIN B. SURYAWANSHI AND VAISHALI PATIL-JADHAV, JJ. DATE : 28.04.2026 ORAL JUDGMENT : [Per Nitin B. Suryawanshi, J.] . Rule. Rule made returnable forthwith and heard finally with the consent of the parties. ksk/ 1/5 2026:BHC-AUG:21479-DB 907 - WP Allowed, Direction 8W 2. The petitioner challenges the recovery chart dated 17.04.2017 issued by respondent No. 4 by which a recovery of Rs. 2,88,946/- is proposed against the petitioner towards increments paid to him during the period between 2004 to 2010. 3. The petitioner was appointed as a primary teacher in the year 1991. The first Time Bound Promotion Scheme benefits were granted to the petitioner on completion of his 12 years of service on 01.08.2003. By order dated 27.01.2004, the petitioner was appointed as graduate primary teacher on a condition to acquire B.Ed. qualification within five years. Appointment order mentions that if the said appointment is refused then the petitioner will not be entitled to claim next higher pay scale. 4. The petitioner failed to acquire B.Ed. qualification within the stipulated period. However, as the pay scale of Rs. 5500-175-9000 in respect of graduate primary teacher and higher pay scale of Rs. 5000- 150-8000 to the post of primary teacher after completion of 12 years of service is one and the same, the petitioner continued to receive the admissible pay and increments even after 01.07.2011. On 03.09.2016, the petitioner was promoted as Headmaster as per seniority. 5. On 17.04.2017, respondent No. 4 has done pay fixation of the petitioner, according to the petitioner, by wrongly calculating his basic pay of Headmaster's post on the ground that petitioner failed to acquire ksk/ 2/5 907 - WP Allowed, Direction 8W B.Ed. qualification and therefore, his increments are required to be stopped from 01.07.2011. A chart was also prepared showing recovery of Rs. 2,88,946/- from the petitioner towards difference of the salary payable to the petitioner and the salary which the petitioner received. 6. The petitioner preferred representation dated 11.03.2019 requesting the respondents not to recover the said amount in view of the decision of the Apex Court in State of Punjab and others Vs. Rafiq Masih (White Washer); (2015) 4 SCC 334. The petitioner has therefore, approached this Court. While issuing notice on 25.07.2019, this Court directed that "The respondent No. 2 shall not claim recovery pursuant to the impugned communication." 7. During the pendency of this petition, the petitioner attained age of superannuation on 31.07.2023. At the time of paying pensionary benefits to the petitioner, a consent was obtained from the petitioner for recovery of the amount of Rs. 2,89,946/- and the said amount was deducted from the pensionary benefits of the petitioner. 8. In the affidavit-in-reply, respondent No. 3 - Education Officer has tendered unconditional apology for deducting the said amount in spite of stay order operating in favour of the petitioner. 9. Heard learned advocate for the petitioner, learned advocate for the respondents and learned AGP for the State. Perused the record. ksk/ 3/5 907 - WP Allowed, Direction 8W 10. It is not in dispute that petitioner is a Class-III Employee and is retired from service. He has not played any fraud when his salary was fixed by the respondents. There appears substance in the contention of the petitioner that the pay scale of Rs. 5500-175-9000 of graduate primary teacher and higher pay scale of Rs. 5000-150-8000 to the post of primary teacher after completion of 12 years of service is one and the same. This Court has consistently held that recovery on the basis of undertaking obtained from the employee, at the time of his retirement of his retirement is not justified, as the employee is pressurized to give undertaking at the time of retirement or else his retiral benefits are threatened to be withheld. 11. Therefore, we are of the view that respondents were not justified in recovering the amount from the retiral benefits of the petitioner, more so in view of stay granted by this Court. The said recovery is therefore unsustainable. The case of the petitioner is also covered by the decision of the Apex Court in Rafiq Masih (supra), wherein it is categorically held that recovery from the retired employees or employees who are due to retire within one year of the order of recovery is not permissible. It is further held that recovery from employees where excess payment has been made for a period exceeding five years prior to the order of recovery is also not permissible. ksk/ 4/5 907 - WP Allowed, Direction 8W 12. For the aforestated reasons, the impugned action of the respondents of deducting amount of Rs. 2,88,946/- from the retiral benefits of the petitioner cannot be sustained. 13. In the result, Writ Petition is allowed. 14. The impugned order dated 17.04.2017 to the extent it directs recovery from the retiral benefits of the petitioner is hereby quashed and set aside. 15. The respondents shall refund the amount of Rs. 2,88,946/- to the petitioner within eight (8) weeks from the date of receipt of copy of this order. 16. Since the recovery is made in spite of stay order passed by this Court, we accept the unconditional apology tendered by respondent No. 3. However, in facts of the present case, we direct the respondents to pay simple interest at the rate of 6% per annum on the refunded amount from the date of recovery till its actual realization. 17. Rule is made absolute in above terms. [VAISHALI PATIL-JADHAV, J.] [NITIN B. SURYAWANSHI, J.] ksk/ 5/5