wp-2836-2022-final.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2836 OF 2022 1. Nitin s/o Munjajirao Ijate Age : 46 years, Occu : Service, R/o Municipal Colony, Darga Road, Parbhani 2. Umesh s/o Jagannath Ardad, Age : 47 years, Occu : Service, R/o. Municipal Colony, Darga Road, Parbhani 3. Muntajeeb Mehboob Khan Age : 47 years, Occu : Service, R/o. Azam Colony, Darga Road Parbhani 4. Prasad s/o Purbhaji Pote, Age : 54 years, Occu : Service, R/o. Langot Galli, Jijamata Road, Parbhani 5. Chandrakant s/o Limbajirao Pawar, Age: 55 years, Occu: Service, R/o. Samzota Colony, Karegaon Road, Parbhani. 6. Keshav s/o Venkatrao Daunde, Age: 52 years, Occu: Service, R/o. Sujate Nagar, Old Pedgaon Road, Parbhani. 7. Ab. Majjit Ab. Raheman Kaji, Age: 58 years, Occu: Pensioner, R/o. Darga Road, Parbhani. 8. Vishnu s/o Tanba Sawant, Age: 57 years, Occu: Service, R/o. Raygad Nagar, Old Pedgaon Road, Parbhani. 9. Laxman s/o Sambhaji Nandane, Narwade 2026:BHC-AUG:31091-DB wp-2836-2022-final.odt 2 Age: 56 years, Occu: Service, R/o. Sakhala Plot, Lohagaon Road, Parbhani. 10. Shaikh Kalim Shaikh Jilani, Age: 57 years, Occu: Service, R/o. Paraswat Nagar, Parbhani. 11. Smt. Vidya Vishnupant Pimpalwadkar, Age: 53 years, Occu: Service, R/o. Bhajan Galli, Parbhani. 12. Bhagwan s/o Ramrao Shinde, Age: 47 years, Occu: Service, R/o. Khanapur Nagar, Parbhani. 13. Govind s/o Bhaurao Tathe, Age: 54 years, Occu: Service, R/o. Yashodhan Nagar, Parbhani. 14. Vishwas s/o Uttamrao Latpate, Age: 57 years, Occu: Service, R/o. Yashodhan Nagar, Parbhani. 15. Babar Khan Ab. Hamid Khan, Age: 52 years, Occu: Service, R/o. Rameshwar Plot, Parbhani. 16. Ganesh s/o Baburao Survase, Age: 53 years, Occu: Service, R/o. Dadarao Plot, Parbhani. 17. Prabhakar s/o Shambhudev Taralkar, Age: 54 years, Occu: Service, R/o. Pokharni, Tq. & Dist. Parbhani. 18. Ashok s/o Vaijnath Swami, Age: 52 years, Occu: Service, R/o. c/o. Nagar Parishad, Renapur, Tq. & Dist. Parbhani. 19. Shahed Ali Yakub Ali, Age: 52 years, Occu: Service, Narwade wp-2836-2022-final.odt 3 R/o. Yusuf Colony, Parbhani. ...Petitioners VERSUS 1. The State of Maharashtra Through the Principal Secretary, Urban Development Department, Mantralaya, Mumbai-32 2. The Divisional Commissioner & The President of Divisional Absorption Committee, Aurangabad 3. The Collector, Parbhani 4. The Commissioner, Parbhani City Municipal Corporation, Parbhani ...Respondents … Mr. S. T. Shelke, Advocate for the Petitioners. Ms. Vaishali Chaudhari, AGP for Respondent Nos 1 to 3 Ms. Rani Bharuka-Bora h/f. Mr. S. S. Bora, Advocate for Respondent No.4 ... CORAM : NITIN B. SURYAWANSHI AND ABASAHEB D. SHINDE, JJ. RESERVED ON : 30.06.2026 PRONOUNCED ON : 27.07.2026 JUDGMENT (Per Abasaheb D. Shinde J.) :- 1. Rule. Rule is made returnable forthwith. With the consent of the parties, the writ petition is taken up for final hearing at the stage of admission. 2. By this Writ Petition, filed under Article 226 of the Constitution of India, the petitioners have put forth the Narwade wp-2836-2022-final.odt 4 following prayer :- “(B) Quash and set aside the order dt. 05.01.2022 passed by the Commissioner, Parbhani City Municipal Corporation at Exh. H and for that purpose issue necessary writ or order. 3. It is the case of the petitioners that they were initially appointed by the erstwhile Municipal Council, Parbhani on 11.01.2007. The State Government framed Rules viz. the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships State Services (Absorption, Recruitment & Conditions of Service) Rules, 2006 (hereinafter called as “the Rules of 2006”). Pursuant to the said Rules on 22.10.2010/04.11.2010 under the orders of Divisional Commissioner, Aurangabad, the employees of erstwhile Municipal Council from the Marathwada Division were absorbed w.e.f. 01.02.2010. On 12.10.2011, the Collector, Parbhani passed an order thereby actually absorbing the employees of Municipal Council, Parbhani. By order dated 24.10.2011, the Chief Officer of the then Municipal Council, Parbhani made pay fixation as per the absorption orders passed by the Divisional Commissioner and Collector respectively. On 01.11.2011, the Municipal Council, Parbhani got converted into Municipal Corporation. The Deputy Commissioner, Municipal Corporation, Parbhani by Narwade wp-2836-2022-final.odt 5 order dated 23.03.2017 cancelled the earlier pay fixation made by the Chief Officer of the then Municipal Council by making re- fixation of pay scale and initiating recovery of excess amount paid to the petitioners. 4. It is further contended by the petitioners that on 26.04.2017, the Divisional Commissioner, Aurangabad issued posting orders of the petitioners accordingly. In the meanwhile, the petitioners challenged the order dated 23.03.2017 of the Deputy Commissioner, Municipal Corporation, Parbhani before this Court by filing Writ Petition No.5134 of 2017. This Court by an order dated 16.04.2018 allowed the said Writ Petition, thereby quashing the re-fixation of petitioner’s pay scale and directing the Deputy Commissioner, Municipal Corporation, Parbhani to give opportunity of hearing to the petitioners before re-fixation of their pay scale. On 05.01.2022, the Deputy Commissioner, Parbhani, Municipal Corporation by maintaining his earlier order dated 23.03.2017 made re-fixation of pay scale of the petitioners and directed recovery of excess amount paid to them. The petitioners are, therefore, before this Court. 5. Heard learned Counsel for the petitioner, learned Counsel Narwade wp-2836-2022-final.odt 6 appearing for Respondent No.4- the Commissioner, Municipal Corporation, Parbhani and learned AGP for Respondent Nos.2 and 3. 6. In order to ascertain as to whether the petitioners were Class-III employees, this Court directed learned Counsel for Respondent No.4 to take instructions in that regard. Pursuant to the said directions, learned Counsel appearing for Respondent No.4 by placing on record communication dated 01.04.2026 received from Respondent No.4 fairly concedes that the petitioners are Class-III employees. 7. It is an admitted fact that, the petitioners were working on Class-III post and the fixation of their pay scale was carried out by the erstwhile Municipal Council and thereafter their pay fixation was revised by the Deputy Commissioner, Parbhani. 8. In view thereof, we are of the considered view that, the pay fixation of the petitioners was not on account of any fraud or misrepresentation attributable to the petitioners nor any undertaking was obtained from the petitioners to the effect that in case of re-fixation of their pay scale, the petitioners would repay the excess amount received by them. Therefore the action Narwade wp-2836-2022-final.odt 7 of Respondent No.4 thereby initiating recovery from the salary of the petitioners is arbitrary and unreasonable. 9. We find that the case of the petitioners is squarely covered by the ratio laid down by the Hon’ble Apex Court in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and Ors. reported in (2015) 4 SCC 334, wherein the Hon’ble Apex Court in paragraphs 15 and 18 observed as under :- “15. Examining a similar proposition, this Court in Col. B.J. Akkara v. Government of India, (2006) 11 SCC 709, observed as under: "28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery." (emphasis supplied) A perusal of the aforesaid observations made by this Court in Col. B.J. Akkara's case (supra) reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from employees in lower Narwade wp-2836-2022-final.odt 8 rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e., Class-III and Class-IV - sometimes denoted as Group 'C' and Group 'D') of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India. 18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” 10. In view of dictum of the Hon’ble Apex Court in the case of Rafiq Masih (White Washer) (supra), we find that the writ petition deserves to be allowed. The Writ Petition is, therefore, Narwade wp-2836-2022-final.odt 9 allowed in terms of prayer clause B. 11. Rule is thus made absolute in the above terms. ( ABASAHEB D. SHINDE, J. ) ( N. B. SURYAWANSHI, J. ) Narwade