23-WP-8507-2022.DOCX IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8507 OF 2022 Vijay Raghunath Sonambekar & Anr ...Petitioner Versus The State of Maharashtra & Ors ...Respondents _______ Mr. Kiran Bapat i/b Mr. Prajakt, Mr. M. Arjunwadkar a/w P.S. Hande, O.S Shinde and J.B. Gharat for Petitioner. Mr. Neel Helekar a/w Mr. Akhilesh Adhav for Respondent No. 4 and Mr. A.R. Deolekar AGP for Respondent-State. _______ CORAM: G. S. KULKARNI & DR. NEELA GOKHALE, JJ. DATE: 31st AUGUST 2026 P.C.: 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, the petition is taken up for final hearing. 2. By this petition, the Petitioners seek to quash and set aside the Order dated 13th September 2021 issued by Respondent No. 3, Assistant Director of AYUSH (Mumbai), which was communicated to the Respondent No.4, the In charge Principal, A.S.S. Ayurved Mahavidyalaya, with a request to deduct three non- compounded advanced increments from the Petitioners’ salary and the consequential letter dated 28th September 2021, and the further letters dated 20th October 2021 and 25th October 2021, in that regard. 3. The Petitioner Nos. 1 and 2 hold post-graduate qualifications (M.D./M.S.) in Ayurveda and are working as Professor and Associate Professor respectively, in the A.S.S Ayurved Mahavidyalaya, a fully aided institute, since 1st April 2004. Page 1 of 5 23-WP-8507-2022.DOCX Under clause 2(5)(ii) of the Government Resolution dated 8th September 2011, teachers possessing M.D./M.S. qualifications were held entitled to 3 Non- Compounded Advanced Increments as an incentive. By a clarificatory circular dated 26th June 2012, Respondent No.1 fixed the effective date of this incentive as 1st April 2011 for teachers working at fully aided colleges. Pursuant thereto, the Petitioners were granted and paid the said 3 increments with effect from 1st April 2011, along with other similarly placed teachers. 4. While revising the Petitioners’ pay under the Seventh Pay Commission scales vide Government Resolution dated 18th May 2021 (effective from 1st January 2016), Respondent No. 4 first deducted the 3 Non-Compounded Advanced Increments from the Petitioners’ salaries. Thereafter, without issuing any show cause notice or affording an opportunity of hearing, Respondent No. 3, by the impugned Order dated 13th September 2021, directed the withdrawal of the said increments with effect from 01st April 2011 and the recovery of the resultant amount from the Petitioners' salaries. The Petitioners' signatures were obtained on a letter dated 25th October 2021 on the understanding that the excess payment would be adjusted against arrears due under the Seventh Pay Commission. 5. Heard the learned Mr Kiran Bapat, learned counsel for the Petitioners, Mr Neel Helekar, learned counsel for the Respondent No. 4, and Mr A.R. Deolekar, learned AGP for the Respondent-State. With their assistance, we have perused the record. 6. It is settled law that no order withdrawing a financial benefit already extended to an employee, much less an order directing recovery of amounts paid 23-WP-8507-2022.DOCX over several years, can be passed without affording the employee concerned an opportunity of hearing. This flows from the basic principles of natural justice and Article 14 of the Constitution of India. Examining a similar proposition, the Supreme Court in B. J. Akkara v. Government of India1, 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 emolumenis 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." 7. In State of Punjab and others v. Rafiq Masih2 the Supreme Court held that recovery of excess payment made to an employee, particularly where such payment was not occasioned by any misrepresentation or fraud on the part of the employee, ordinarily is not to be effected, especially where such recovery would cause undue hardship, or where the recovery is sought to be made after a significant lapse of time from the date of the erroneous payment. Paragraph No. 10 of Rafiq Masih (supra) reads thus: “10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, 1 (2006) 11 SCC 709 2 (2014) 8 SCC 883. Page 3 of 5 Ajit 23-WP-8507-2022.DOCX that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.” 8. A perusal of the aforesaid observations made by the Supreme Court in the aforesaid decisions reveals a reiteration of the legal position that the right to recover would be sustainable so long as it was not iniquitous or arbitrary. 9. In the present case, it is not in dispute that the three Non-Compounded Advanced Increments were sanctioned to the Petitioners pursuant to a Government Resolution dated 08th September 2011 and paid to them regularly for close to a decade thereafter. More than eleven years later, the impugned Order dated 13th September 2021 proceeds to withdraw this benefit and directs recovery without any show cause notice, without any hearing, and without giving reasons based on which Respondent No.2 came to conclude that the benefit was wrongly extended. This is contrary to the principles of natural justice and cannot be sustained. Such a civil suit for recovery of the paid amounts would be hopelessly time barred. 10. In view of the settled legal position and the factual matrix in the present case, we have no hesitation in quashing and setting aside the impugned Order dated 13th September 2021, issued by Respondent No. 3, Assistant Director of Ajit 23-WP-8507-2022.DOCX AYUSH (Mumbai), the consequential letter dated 28th September 2021, and the further letters dated 20th October 2021 and 25th October 20219. The Writ Petition is thus allowed. 11. Accordingly, the Rule is made absolute. 12. No costs. (DR. NEELA GOKHALE, J) (G. S. KULKARNI, J.) Ajit AJIT RAMESH PATHRIKAR Digitally signed by AJIT RAMESH PATHRIKAR Date: 2026.09.05 16:16:41 +0530