Public Prosecutor – Mah.Govt.Servant Marathi Language Examination Rules 1987 – Increment given even without passing the examination in stipulated period – Legality of action for its recovery at fag end of retirement
On 12.8.1993, the petitioner was appointed as Police Prosecutor and on 2.5.1996 promoted as Assistant Public Prosecutor.
Maharashtra Government Servant (other than the Judicial Department Service) Marathi Language Examination Rules 1987, required the petitioner to pass lower and higher Marathi Language Examination in two years from the date of appointment and the said period expired on 12.8.1995. The said examination is mandatory and for not passing the said examination, increment is not given or withheld.
The petitioner passed the said examination on 10.4.2015. However, she was given increments during the said period of 1995 to 2015.
On 17.11.2018, the respondents initiated action for recovery of increments given from 1995 to 2015. On 30.1.2019, the petitioner retired from service.
The action of recovery was challenged before the Maharashtra Administrative Tribunal. By the order dated 25.9.2019 the Tribunal dismissed the case.
HELD that the respondents admitted their own mistake in releasing the payment of increment. It is not the case of the respondents that there was suppression by the petitioner. The respondents have also not stated that the works of the petitioner had suffered for not passing the examination. Following the decision of the Supreme Court in Rafiq Masih (2015 (4) SCC 334) it was noted that recovery is not permissible in law when excess payment was made for a period in excess of five years before the order of recovery and no recovery is permissible from employee due for retirement in one year from the order of recovery. It was seen that other directions in the said judgment are applicable to all class of employees. In view of this, the recovery from the petitioner is not legal.
Judgment dated 20.2.2024 in Writ Petition No.564 of 2023 of Smt. Varsha Kapil Doshi Vs. State of Maharashtra and another
