Jayshri Sanjay Chandode vs The State Of Maharashtra Through Its Secretary And Others

2026:BHC-AUG:17337-DB
wp 13261 2023 (2).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 13261 OF 2023
1. Jayshri w/o Sanjay Chandode
Age: 48 years, Occ: Homemaker,
R/o: Behind S.B. High School,
Income Tax Colony, Old Jalna,
Jalna 431203.
… PETITIONER
...VERSUS...
1. The State of Maharashtra,
Through its Secretary,
Ministry of Water Supply and Sanitation,
Mantralaya, Mumbai.
2. The Director of Groundwater Survey & Development Agency
Maharashtra State,
Agriculture College Campus, Wakdewadi Road,
Shivajinagar, Pune.
3. The Regional Deputy Director,
Groundwater Survey and Development Agency,
Aurangabad Region, Aurangabad.
… RESPONDENTS
_______________________________________________________________
• Mr. Pratik K. Bhosle, Advocate for Petitioner
• Mr. A.V. Lavte, AGP for Respondent/State
_______________________________________________________________
CORAM : NITIN B. SURYAWANSHI AND
VAISHALI PATIL – JADHAV, JJ.
RESERVED ON : MARCH 26, 2026
PRONOUNCED ON : APRIL 21, 2026
J U D G M E N T [Per Vaishali Patil – Jadhav, J.] :
. Rule. Rule made returnable forthwith. Heard finally with
the consent of learned advocates for the parties.
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2. By this petition, the petitioner challenges the action of the
respondent authorities in effecting recovery of an amount of
Rs.3,11,194/- from the gratuity payable to the petitioner -widow after
the death of her husband-government employee, towards recovery of
excess payment made to him.
3. Brief facts leading to filing of present Writ Petition are as
under :-
The petitioner is the widow of one Sanjay Bhagirath
Chandode, who was working as a peon in the office of Respondent no.3
- Regional Deputy Director, Groundwater Survey and Development
Agency, Aurangabad Region, Aurangabad. He expired while in service
on 11.03.2022, due to cardiac arrest. Pursuant to his death, a proposal
for grant of pension and death gratuity was forwarded to the
Accountant General, which was sanctioned vide family pension
payment order dated 21.04.2023 and the petitioner was held entitled
for monthly family pension of Rs.15,850/- and gratuity of
Rs.8,71,750/-.
On 20.03.2023, respondent no.3 forwarded a proposal to
the Accountant General stating that an excess payment of Rs.3,11,194/-
had been made to the deceased employee for the period from
01.01.2006 to 11.03.2022, on account of wrong pay fixation during the
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service tenure of the deceased employee. Consequent thereto, recovery
was initiated by the office order dated 11.05.2023 and an amount of
Rs.3,11,194/- was deducted from the death gratuity amount payable to
the petitioner.
Aggrieved by the recovery, the petitioner has approached
this Court seeking directions to the respondent authorities to refund the
recovered amount of Rs.3,11,194/-.
4. Learned Advocate Mr. Pratik K. Bhosle, appearing for the
petitioner would submit that the recovery in the present case from
death gratuity stands on a higher pedestal than from ordinary
retirement gratuity benefits. The deduction of a substantial portion of
such amount, especially when the family has lost the sole breadwinner,
is harsh and arbitrary. Learned Advocate for the petitioner has placed
reliance on the judgment of the Hon'ble Supreme Court in the case of
State of Punjab and others Vs. Rafiq Masih (White Washer) etc., (2015
AIR SCW 501) contending that since the husband of the petitioner was
a Class IV employee and no fault is attributable to him for the excess
payment made, recovery of such amount is impermissible as it would
cause more hardship to the petitioner, who is the widow of the deceased
employee, while no loss would be caused to the State if the amount is
refunded. Hence, applying the said ratio in the case of Rafiq Masih
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(supra), the petition should be allowed and prayed for refund of the
recovered amount.
5. Learned Advocate for the petitioner has also placed reliance
on the judgments in the case of Shaikh Amir Shaikh Kadar Vs. The State
of Maharashtra and others in Writ Petition No.3320/2023 and along
with connected matters, dated 23.03.2023, Smt. Sudha Bhagirath
Meshram Vs. Zilla Parishad and others in Writ Petition No.4835/2021,
dated 27.03.2023, Ex. Naik Bhag Chand Vs. Director General of Police,
CRPF and others in Writ Petition No.4626/2019, dated 14.02.2024,
Indakar S/o Gopalrao Khandekar Vs. The State of Maharashtra and
others in Writ Petition No.2527 of 2023 dated 26.09.2024 and Dr.
Chetna Rajput Vs. Modern Education Society, Pune and others in Writ
Petition No.11027 of 2024 dated 28.03.2025.
6. Per contra, learned A.G.P. Mr. A. V. Lavte, appearing for the
Respondent-State would submit that the amount has been rightly
recovered from the death gratuity on account of excess payment made
to the deceased employee during his service tenure. He would submit
that the recovery is based on the undertakings given by the deceased
employee as per clause 15.6 of the Circular dated 20.04.2009 and
clause 14.6 of the Circular dated 20.02.2019, Rule 6(2) of the
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Maharashtra Civil Services (Revised Pay) Rules, 2019 (For short, "Rules
of 2019"). Learned A.G.P. would submit that the reliance placed by the
petitioner on the judgment in the case of Rafiq Masih (supra) is
misplaced and distinguishable on facts. Herein, the recovery is made on
the basis of the statutory undertakings and hence the case falls outside
the propositions laid down in the said judgment.
Learned A.G.P. has placed reliance on the judgments in the
case of High Court of Punjab & Haryana and others Vs. Jagdev Singh
[(2016) 14 SCC 267], The State of Maharashtra and others Vs. Mrs.
Rekha Vijay Dubey in Writ Petition No.7154 of 2019 and other
connected matters, The State of Maharashtra and another Vs. Bhagwan
and others in Civil Appeal Nos.7682-7684 of 2021.
7. Heard learned Advocate Mr. Pratik K. Bhosle for the
petitioner and learned A.G.P. Mr. A.V. Lavte for the Respondent-State, at
length. We have considered the submission canvassed by the learned
advocates for respective parties.
8. In the decision in Rafiq Masih (supra), the Hon'ble
Supreme Court has dealt with the issue of the right of an employer to
recover the amount paid in excess to an employee without any fault on
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the part of the employee. The Supreme Court in paragraph no.18 of the
judgment has held as under:-
"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
hereinabove, 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."
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9. The Hon'ble Supreme Court in Jagdev Singh (supra) after
considering one of the propositions enumerated in the decision in the
case of Rafiq Masih (supra), has held as under:-
"11. The principle enunciated in proposition (ii) above
cannot apply to a situation such as in the present case.
In the present case, the officer to whom the payment
was made in the first instance was clearly placed on
notice that any payment found to have been made in
excess would be required to be refunded. The officer
furnished an undertaking while opting for the revised
pay scale. He is bound by the undertaking.
12. For these reasons, the judgment of the High
Court which set aside the action for recovery is
unsustainable. However, we are of the view that the
recovery should be made in reasonable instalments. We
direct that the recovery be made in equated monthly
instalments spread over a period of two years."
10. In Writ Petition No. 7154/2019 and other connected
matters decided on 24.09.2021 by High Court of Bombay (Coram:
Dipankar Datta, CJ & M.S. Karnik, J.), while distinguishing Jagdev
Singh (supra) with the facts of the case therein, the Court has made the
following observations:-
"8. First, the undertaking given by the respondent in
Jagdev Singh (supra), while opting for the revised pay-
scale, was in pursuance of the Haryana Civil Service
(Judicial Branch) and Haryana Superior Judicial
Service Revised Pay Rules, 2001. Since the respondent
had submitted an undertaking under the said Rules
that he would refund to the Government any amount
paid to him in excess either by adjustment against
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future payment due or otherwise, he was held to be
bound by such undertaking. Additionally, the
respondent had not retired from service on
superannuation but he was compulsorily retired from
service. Also, the respondent being a judicial officer
was not holding a Class III/Group ‘C’ post on the date
he was compulsorily retired. It is in such circumstances
that the Supreme Court held that the respondent was
bound by the undertaking given by him and that the
Government was justified in its action of seeking to
recover excess payment that was made. That is not the
case here. The facts here are quite dissimilar and,
therefore, having regard to the settled proposition of
law that a judgment is an authority for what it decides
and not what can logically be deduced therefrom, we
hold the decision in Jagdev Singh (supra) to be
distinguishable on facts."
In the same judgment, in Para 9, while distinguishing
Jagdev Singh by holding that the petitioner therein was a Class I
employee and there was a statutory undertaking given, the Court has
left the question open as to "whether Jagdev Singh (supra) would apply
to cases of Class III/Group ‘C’ employees who by giving declaration
mandated by a statutory rule, undertake to refund any sum received in
excess of their entitlement.”
11. To answer the issue raised in this petition, it is apposite to
consider the relevant provisions of law. The case of the petitioner is
governed by Maharashtra Civil Services (Revised Pay) Rules, 2009 (for
short, “Rules of 2009"), which are framed for fixation of initial pay in
th
the revised pay structure of the 6 Pay Commission. In furtherance of
these rules, the Government issued a circular dated 29.04.2009,
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explaining more clearly the way of operation of the provisions of the
MCS (Revised Pay) Rules, 2009.
12. Clause 15.6 of the Circular dated 29.04.2009 is relevant,
which is as follows:-
" 15.6 In the absence of pre-check there is likelihood of the
arrears being wrongly calculated resulting in over-payment
which might have to be recovered subsequently. The
Drawing and Disbursing officers should make it clear to the
Government servants under them, while crediting the
arrears in Provident Fund Account that the credits are
being made subject to adjustment of any amounts due from
them subsequently in the light of discrepancies noticed
later. For this purpose every employee will be required to
give an undertaking in the proforma given in Annexure II
in writing, while receiving first salary in the revised pay
Structure or thereafter to the effect that any excess credit
that may be found to have been made as a result of fixation
of pay will be refunded by him to Government, either by
adjustment against future payment or otherwise. "
13. In terms of above provision, an undertaking given by the
husband of the petitioner, is as follows :-

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14. Again, in the year 2019 the State Government came up
th
with Rules of 2019, for fixation of pay scale for giving benefits of the 7
Pay Commission, from 2016, and with a circular dated 20.02.2019,
along with a proforma of undertaking given in Annexure IV.
15. Rule 6 (2) of Rules of 2019 is applicable to the facts of the
present case. Relevant rule is as follows :-
"6. Exercise of option.-
(1) The option under the proviso to rule 5 shall be
exercised in writing in the form appended to these
Rules as Annexure III, so as to reach the authority
mentioned in sub-rule (2) within one month from the
date of publication of these rules in the Official Gazette
or where an existing pay structure has been revised by
any amendment to these Rules within one month of the
date of such order :
.........
(2) The option in the form appended to these Rules as
Annexure III shall be intimated by the Government
servant to the Head of his Office along-with an
undertaking, in the form appended to these Rules as
Annexure IV.
(3) If the intimation regarding option is not received
within the time mentioned in sub-rule (1), the
Government servant shall be deemed to have elected to
be governed by the revised pay structure with effect on
and from the 1st day of January 2016. In such cases,
the undertaking in the form appended to these Rules as
Annexure IV shall be obtained from the Government
servant by Head of Office.
(4) ......"
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16. Similarly like in the year 2009, the Government issued
Circular dated 20.02.2019 laying down the procedure for operation of
the provisions of Rules, 2019. Clause 14.6 of the Circular is as follows:-
"१४.६ पूर्व तपासणीच्या अभावी काही थकबाकी चुकीने परिगणित
होण्याची शक्यता आहे आणि ती अतिप्रदान म्हणून ठरल्यास त्याची
नंतर वसुली करावी लागेल. यासाठी प्रत्येक कर्मचाऱ्याला सुधारित वेतन
संरचनेत वेतननिश्चिती करण्यापूर्वी नियमांसोबतच्या जोडपत्र-चार
अनुसार असे लेखी वचनपत्र द्यावे लागेल की, वेतनाच्या निश्चितीमुळे
काही जास्त रक्कम जमा झाली असे आढळून आल्यास ती भविष्यात देय
होणाऱ्या रकमेशी समायोजित करुन अथवा इतर प्रकारे शासनास परत
करील."
17. In terms of the above, the deceased husband of the
petitioner has given following undertaking :-

वचन पत्र

२०१९ मधील तरतूदींशी विसंगत वेतननिश्चितीच्या परिणामी किंवा पुढे वेतननिश्चितीमध्ये विसंगती
आढळून आल्यामुळे मला अतिप्रदान झाल्याचे निदर्शनास आल्यास ते भविष्यात मला प्रदान
करण्यात येणाऱ्या रकमेतून समायोजीत करून किंवा इतर प्रकारे शासनास परत करीन.

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18. Here it is pertinent to note that Rules 132, 134A and 142 of
MCS (Pension) Rules, 1982, provide for recovery and adjustment of
excess amount paid from pensionary benefits and from death gratuity,
which are reproduced below:
Rule 132 of the Maharashtra Civil Services (Pension) Rules,
1982 reads as under :-
"132. Recovery and adjustment of Government dues.
(1) It shall be the duty of the Head of Office to
ascertain and assess Government dues, payable by a
Government servant due for retirement.
(2) …..
(3) The expression ‘Government dues’ includes-
(a) …..
(b) dues other than those pertaining to Government
accommodation, namely, balance of house building or
conveyance or any other advance, overpayment of pay
and allowances or leave salary and arrears of income-
tax deduction at source under the Income Tax Act,
1961 (43 of 1961).
Rule 134A of the Maharashtra Civil Services (Pension)
Rules, 1982 reads as under :-
“134A. Recovery and adjustment of excess amount paid.
[If in the case of a Government servant, who has retired or
has been allowed to retire, -
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(i) it is found that due to any reason whatsoever an excess
amount has been paid to him during the period of his
service including service rendered upon re-employment
after retirement, or
(ii) any amount is found to be payable by the pensioner
during such period and which has not been paid by or
recovered from him, or
(iii) it is found that the amount of licence fee and any
other dues pertaining to Government accommodation is
recoverable from him for the occupation of the
Government accommodation after the retirement,
then the excess amount so paid, the amount so found
payable or recoverable shall be recovered from the amount
of pension sanctioned to him]:
Provided that, the Government shall give a reasonable
opportunity to the pensioner to show cause as to why the
amount due should not be recovered from him:
Provided further that, the amount found due may be
recovered from the pensioner in instalments so that the
amount of pension is not reduced below the minimum
fixed by Government.]”
Rule 142 of the said Rules reads as under :-
"142. Adjustment of Government dues
(1) ...........
(2) Dues other than those referred to in sub-rule (1)-
The Head of Office shall within one month of the
receipt of intimation regarding death of a Government
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servant, take steps to ascertain if any dues as referred to in
rule 132 excluding the dues pertaining to the allotment of
Government accommodation were recoverable from the
deceased Government servant. Such ascertainable dues
shall be recovered from the amount of (death gratuity)
becoming payable to the family of the deceased
Government servant."
19. The propositions (i) to (v) laid down in Rafiq Masih
(supra) do not cover the situation where statutory undertaking is given
by the Class III and Class IV employee. In Jagdev Singh (supra) after
considering Rafiq Masih (supra) Hon’ble Supreme Court has observed
that once the employee gives an undertaking while opting for revised
pay scale with an understanding that any excess payment made to him
will be recovered from him against the future benefits, then, the
employee is bound by such an undertaking.
In the case at hand, the undertaking is a statutory
undertaking, given at the time of refixation of pay of the employee i.e.
in the year 2009 and in the year 2019. Rafiq Masih (supra) prohibits
recovery from the amount of pension. Herein, the recovery is made
from the amount of death gratuity and the monthly pension is already
granted to the petitioner.
20. Respondent No. 3 deducted the excess payment made to
the deceased employee from the amount of death gratuity payable to
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the petitioner. The deductions were made as the employee had given a
statutory undertaking to that effect. The undertaking dated 12.06.2009
and of the year 2019 are statutory undertakings given under the Rules
of 2009 and 2019. The deceased employee was aware and was put to
notice by way of an understanding that any excess payment made will
be adjusted from the future payments. As such, there is no reason to
nullify the effect of the undertakings and, they would operate with all
their legal effects and consequences.
21. It is thus, in view of the Rules 132, 134A and 142 that the
respondents are entitled to make recovery of excess payment from the
retirement benefits and from the amount of death gratuity, when it is
found that due to any reason, whatsoever, excess amount has been paid
to the employee during the period of his service.
22. The decisions relied upon by the petitioner will not enure
to her benefit as the facts in those cases are distinguishable and, in none
of the decisions statutory undertaking was in question as in the present
case.
(i) In Ex. Bhagchand (supra), the Court held that recovery
cannot be effected from the legal heirs in the absence of a statutory
provision. In the present case, however, the recovery is not sought to be
made from the legal heirs, but has been effected by deduction from the
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death gratuity payable. The said decision is, therefore, clearly
distinguishable and of no assistance to the petitioner.
(ii) In Smt. Sudha Bhagirath Meshram (supra), the undertaking
in question was not furnished under any statutory rules, but was
obtained at the time of pay fixation. Moreover, the recovery therein was
sought after a lapse of 16 years from pay fixation and nearly five years
after the death of the employee, from the family pension payable to the
widow. In such circumstances, the said decision does not support the
petitioner’s case.
(iii) In Indakar s/o Gopalrao Khandekar (supra), the issue of a
statutory undertaking did not arise for consideration. The facts being
totally different, the said decision is also of no assistance to the
petitioner.
(iv) Reliance is placed on Dr. Chetna Rajput (supra), wherein it
is observed that gratuity ought to be released immediately within one
month of employee's retirement, death, resignation and employee
should not be made to approach the Court, is also misplaced. The said
observations, in the peculiar facts of the present case, do not support
the petitioner’s case.
23. Taking into consideration the MCS (Revised Pay) Rules, the
circulars dated 29.04.2009 and 20.02.2019, the undertakings furnished
pursuant thereto and Rules 132, 134A and 142(2), and in the light of
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the legal position emanating from the judgment in Jagdev Singh
(supra). It thus, apparent that if an employee tenders an undertaking
binding himself to refund the excess amount if he is subsequently found
dis-entitled, a recovery of such amount cannot be set aside. The
deductions made by the respondents to recover the excess payment
made to the deceased employee from the amount of death gratuity are,
in our considered view, in discharge of the statutory obligation cast
upon them and, therefore, warrant no interference at the hands of this
Court. When the Rules expressly provide for recovery and the
employees agree to the same by way of a statutory undertaking, which
uniformly applies to all employees irrespective of whether they fall in
Class I, II, III or IV, and in the absence of any differentiation in the Rules
or Circulars between the classes of employees, the provision operates on
the fundamental principle that the law applies equally to all.
24. In view of the aforestated observations, the petition is liable
to be dismissed. The writ petition is dismissed with no order as to costs.
25. Rule is discharged.
26. Pending Applications, if any, also stand disposed of.
[VAISHALI PATIL – JADHAV, J.] [NITIN B. SURYAWANSHI, J.]
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