1 908wp4548.2018.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, AT NAGPUR. WRIT PETITION NO. 4548 OF 2018 (Union of India, through the Secretary, Ministry of Mines, New Delhi and ors Vs. Ashok s/o raghobaji Dandekar, Nagpur) __________________________________________________________________________________________ Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders __________________________________________________________________________________________ Mr. S.A. Chaudhari, Advocate for petitioners. Mr. U.J. Deshpande, Advocate for respondent. CORAM : ANIL S. KILOR & RAJNISH R. VYAS,JJ. DATE : 29/09/2026 Heard. 2. By way of this petition, the Union of India has raised a challenge to the judgment and order dated 10.3.2017, passed by Central Administrative Tribunal, Mumbai Bench, Nagpur Camp, in Original Application No. 2111/2016, partly allowing the Original Application filed by the respondent, who was working as Senior Hindi Translator in the office of the Additional Director General, Geological Survey of India, Nagpur, and was aggrieved by the order dated 15.3.2026 withdrawing grant of grade pay of Rs. 4800/- and Rs. 5400/-. Prayer for not recovering an amount of Rs. 4,47,156/- towards alleged over payment, was also made. 3. The Tribunal while partly allowing the Original Application has held that fixation of grade pay of Rs. 4800/- w.e.f. 19.10.2008 shall stand unchanged, the order of recovery of Rs. 4,87,156/- was set aside. 4. We have heard Mr. S.A. Chaudhary, learned counsel for petitioners and Mr. U.J. Deshpande, learned counsel for respondent. Belkhede 2 908wp4548.2018.doc 5. It is to be noted that as far as order of re-fixation of grade pay of Rs. 4800/- w.e.f. 19.8.2008 is concerned, challenge has not been raised to it. The challenge made is to the order of setting aside of recovery of Rs. 4,87,156/-. 6. It is submitted that the learned Tribunal has relied upon the judgment in case of State of Punjab and others Vs. Rafiq Masih (White Washer) “Rafiq Masih”, reported in 2015(4) SCC 334. It is submitted that said judgment will not be applicable to the case of the petitioners for two reasons. Firstly, the petitioner is class II employee and not class III or class IV to whom the said judgment is applicable and secondly, the recovery of excess payment is not available for a period not in excess of five years as observed by the Hon’ble Supreme Court of India in clause 2 of the aforementioned judgment. 7. Mr. U.J. Deshpande, learned counsel for respondent in reply submits that recovery order is dated 11.5.2016 and the respondent was superannuated on 30.9.2016, i.e., within a period of less than one year. It is submitted that recovery is not permissible as per the case of Rafiq Masih (supra) wherein the employee was due for retirement within one year of the order of recovery. 8. He further submits that fixation of grade pay was with retrospective effect. The fixation was done in the year 2011 w.e.f. 2008 and it was paid till the date of order of recovery. 9. It is submitted that there are no allegations of any misrepresentation by the respondent and therefore, he submits that in view of the judgment in the case of Syed Abdul Qadir Vs. State of Bihar, reported in (2009)3 SCC 475, the amount is not recoverable. He lastly argued that excess payment has been made for a period in Belkhede 3 908wp4548.2018.doc excess of 5 years and therefore, it is not recoverable in view of the judgment in the case of Rafiq Masih (supra). 10. Having heard learned counsel for respective parties and on perusal of the record, it is evident that recovery order is dated 11.5.2016 and the respondent was superannuated on 30.9.2016, i.e., within four months from the order of recovery. In case of Rafiq Masih(supra) it is observed by Hon’ble Supreme Court of India that recovery is impermissible where recovery is from retired employee or the employee who is due for retirement within one year of the order of recovery. Thus, the petitioner falls within clause 2 of the aforesaid judgment. 11. Furthermore, the Hon’ble Supreme Court of India, in paragraph 59, in the case of Syed Qadir (supra), has held thus: “59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter- affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. The learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.” Belkhede 4 908wp4548.2018.doc By applying the above referred observation to the present case, admittedly, it is not the case of the petitioner that excess payment was made because of misrepresentation by the respondent or a fraud played by him. Thus, on this count also, we are of the opinion that in the present case, recovery is impermissible. 12. Furthermore, since recovery was made in the year 2016 and whereas, in 2011 with retrospective effect, i.e., 2008 excess payment was made, it can safely be said that period of recovery is in excess of 5 years. As per clause 3 of the order of the Hon’ble Supreme Court of India in case of Rafiq Masih (supra), since period is in excess of 5 years, recovery from respondent is impermissible. 13. In this view of the matter, we do not find any error committed by the learned Tribunal, hence, petition is dismissed. (RAJNISH R. VYAS, J.) (ANIL S. KILOR, J.) Belkhede Signed by: Mr. R. S. Belkhede Designation: PS To Honourable Judge Date: 30/09/2026 19:39:28