Full Judgment Text
2026:BHC-KOL:2381-DB
910-6988-2025-CWP=.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6988 OF 2025
Balaso Bapu Desai … Petitioner
Digitally
signed by
UDAY
SHIVAJI
JAGTAP
Date:
2026.03.30
21:00:59
+0530
UDAY
SHIVAJI
JAGTAP
Versus
The State Of Maharashtra Throrugh The Secretary … Respondent
Village Development
………….
Mr. Prashant Bhavake for the Petitioner.
Ms. T.J. Kapre, AGP for the Respondent – State.
Mr. Kedar Lad a/w Mr. Indrayani Patil for respondent Nos. 2 and 3.
………….
CORAM : MADHAV J. JAMDAR &
PRAVIN S. PATIL, JJ.
th
DATE : 27 MARCH, 2026.
ORAL JUDGMENT : (Per Pravin S. Patil, J.)
1.
Heard Mr. Bhavake, learned counsel for the petitioner and learned
AGP for the respondent - State.
2.
At the outset, learned counsel for respondent Nos.2 and 3 tendered
written submissions on record. The same are accepted.
3.
The petitioner approached before this Court challenging the order
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th
dated 18 June 2024 passed by respondent No.2 – Chief Executive
Officer, Zilla Parishad, Kolhapur thereby declaring the termination period
th th
of the petitioner from 12 June 1997 to 20 September 2004 as ‘break in
th
service’ and also challenging the order dated 24 February 2025, passed
by respondent No.3 – Deputy Chief Executive Officer, Zilla Parishad,
Kolhapur by which they have revised the pay-scale of the petitioner in
th
pursuance of order dated 18 June 2024 and passed the order of
recovery of excess amount of Rs. 6,90,441/- from pensionary and other
retirement benefits.
4.
It will be relevant in the present matter to state certain facts of the
th
case. The present petitioner was initially appointed on 24 October 1985
as a Driver at respondent – Zilla Parishad, Kolhapur. After rendering 12
years of service, he was terminated by respondent No.2 without
th
conducting any inquiry, on 13 June 1997. The petitioner challenged
the said termination order before this Court by preferring Writ Petition
No. 8663 of 2003. This Court by considering the entire submissions of
th
both the parties vide order dated 9 September 2004, passed the
following order :-
th
“(i) The impugned order dated 18 June 1997 (Exhibit “G”)
is quashed and set aside. Consequently the petitioner shall be
entitled to reinstatement but without back wages.
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(ii) The respondent No.3 shall be at liberty, however, to
initiate fresh enquiry against the petitioner if the appointment
was obtained by the petitioner fraudulently or illegally under
the employment of freedom fighter scheme in the government
th
service as per the Government circular dated 12 October,
1965.”
5.
In pursuance of the order of this Court, the respondent – Zilla
Parishad, Kolhapur has reinstated the petitioner in service and granted all
consequential benefits, including revision of pay-scale and allowances
accordingly. The petitioner also pointed out that from the date of
reinstatement up to the age of superannuation, he has been treated as a
regular employee and all consequential benefits of service, including
benefits of Assured Career Progression (ACP) Scheme has been also
awarded to the petitioner. As such, the petitioner received all the
benefits of service as a regular employee. Accordingly, the petitioner,
st
having attained the age of superannuation, on 31 January 2023 get
superannuated.
6.
After the superannuation of the petitioner, his pension proposal
was not processed by the respondent – Zilla Parishad and, therefore, the
petitioner was constrained to approach before this Court by filing Writ
Petition No. 10573 of 2023. This Court after considering the grievance
Uday S. Jagtap 3 of 10
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th
raised by the petitioner passed the order on 16 January 2025, which
reads thus :-
“1. We are told that the benefit of pension is denied to the
Petitioner only on the ground that the enquiry into the aspect
as to whether nomination of 'freedom fighter' was validly
conferred upon him or not and when we specifically asked the
learned counsel for Zilla Parishad about what is the outcome of
the said enquiry, he state that the enquiry is still pending.
2. We are surprised that enquiry into a small issue like this has
been kept pending for more than two decades and definitely
we do not approve of such a conduct on part of the employer.
3. We are informed that the Petitioner has completed 37
years of service and in light of these circumstances, ignoring
the pendency of the enquiry, considering whether the service
rendered by the Petitioner would make him entitle for
conferment of pensionary benefits, we direct Respondent Nos.2
and 3 to forward his proposal for pensionary benefits to the
competent authority within a period of four weeks from today.
We would have disposed of the Petition, but since we want to
ensure the compliance of the order, we direct listing of the
Petitioner on 03/03/2025, under caption, 'for compliance'.”
7.
After the order of this Court, the proposal of pension of the
petitioner was forwarded to the concerned Authority. The Authority has
considered the pension case of the petitioner, however, it is pointed out
th
that as per the order of this Court dated 9 September 2004, as he was
not granted the back salary, it amounts to break in the service. On that
th
basis the respondent – Zilla Parishad passed the order dated 18 June
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th
2024 thereby held that the period of service of the petitioner from 12
th
June 1997 to 20 September 2004 shall be treated as break in service for
th
all purposes. As a result, further order came to be passed on 24
February 2025 and by this order the pay-scale of the petitioner was
revised and an amount of Rs. 6,90,441/- was directed to be recovered
from the petitioner.
8.
In the background of abovesaid factual position, the petitioner
again approached before this Court by way of present petition,
challenging the orders passed by the respondent – Zilla Parishad.
9.
The respondent – Zilla Parishad in response to the notices issued by
this Court, appeared and filed their written submissions. According to
th
the respondent – Zilla Parishad, this Court vide its order dated 9
September 2004 has only stated that the petitioner be reinstated but
without back wages. According to them, as the petitioner was not held
entitled for the back wages, consequently the period from the date of
termination till the date of reinstatement, is required to be treated as
‘break in service’ and, therefore, they have taken this decision.
10.
Learned AGP also supported the submission made by the
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respondent – Zilla Parishad in the matter and strongly opposed the
present petition.
11.
In light of the above submissions of both the parties, it is clear that
this Court while deciding Writ Petition No.8663 of 2003 by its judgment
th
and order dated 9 September 2004, has decided the case on its own
merit and held that termination of petitioner is illegal. This Court has
directed the respondent – Zilla Parishad to reinstate the petitioner in
service but without back wages. It is nowhere stated that petitioner will
not be entitled for continuity of service.
12.
In our considered opinion, observations of this Court ‘without back
wages’ means that the employee would not be entitled for the salary of
the period from the date of termination till the date of reinstatement, but
he would be entitled for all benefits of service. The word ‘reinstatement’
means to reinstall, to re-establish, to place again in a former state,
condition, or office; to restore to a state or position position. As such, in
our opinion as this Court has directed the reinstatement without back
wages means, the petitioner is entitled for all consequential benefits of
service but without back wages for the said period.
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13.
In the circumstances, it would be relevant to refer the judgment of
the Hon’ble Supreme Court of India in case of Deepali Gundu Surwase
1
Vs. Kranti Junior Adhyapak Mahavidyalaya & Ors. wherein in para 21
the Hon’ble Supreme Court has discussed the meaning of the
‘reinstatement’. Paragraph 21 of the said decision reads thus :-
“21. The word "reinstatement" has not been defined in the Act
and the Rules. As per Shorter Oxford English Dictionary, Vol. 2,
3rd Edn., the word "reinstate" means to reinstall or re-establish
(a person or thing in a place, station, condition, etc.); to
restore to its proper or original state; to reinstate afresh and
the word "reinstatement" means the action of reinstating; re-
establishment. As per Law Lexicon, 2nd Edn., the word
"reinstate" means to reinstall; to re-establish; to place again in
a former state, condition or office; to restore to a state or
position from which the object or person had been removed
and the word "reinstatement" means establishing in former
condition, position or authority (as) reinstatement of a
deposed prince. As per Merriam-Webster Dictionary, the word
"reinstate" means to place again (as in possession or in a
former position), to restore to a previous effective state. As per
Black's Law Dictionary, 6th Edn., "reinstatement" means:
"To reinstall, to re-establish, to place again in a former state,
condition, or office; to restore to a state or position from which
the object or person had been removed."
14.
In the present matter, it would also be relevant to consider the fact
that the respondent – Zilla Parishad immediately after the order passed
by this Court in the year 2004, has rightly reinstated the petitioner in
service and granted him all benefits, including the notional increment
1 (2013) 10 SCC 324
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and benefits of ACP Scheme. As such, till the date of superannuation, the
petitioner has been awarded all the benefits. But immediately after his
superannuation, the respondent – Zilla Parishad has passed the impugned
th th
orders on 18 June 2024 and 24 February 2025.
15.
In the background of this factual position, it will be relevant to
refer the Judgment of Hon’ble Supreme Court of India in the case of State
2
of Punjab and Ors. Vs. Rafiq Masih and observed in paragraph no.18 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 the employees belonging to Class III
and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees
who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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.
2 (2015) 4 SCC 334
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(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.”
16.
As per the law laid down by the Hon’ble Supreme Court of India in
case of Rafiq Masih (supra) , it is held that in a case where an employee
who is Class III or Class IV category, then in such cases, the recovery of
his salary is not permissible if he is due for retirement within one year, of
the order of recovery.
17.
In the present case, admittedly after the superannuation of the
petitioner, this impugned order came to be passed by the respondent –
Zilla Parishad, which according to us is illegal for the simple and valid
reason that there is no break in the service of the petitioner. In addition
to same, as per the judgment of the Rafiq Masih (supra) , the recovery of
amount is not permissible. Hence, on both counts, the impugned orders
th th
dated 18 June 2024 and 24 February 2025 do not survive and
accordingly same are set aside.
18.
For the reasons stated above, the present petition deserves to be
allowed. Hence, we pass the following order :-
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O R D E R
(i) The Writ Petition is allowed.
th th
(ii) The impugned orders dated 18 June 2024 and 24 February 2025
are hereby quashed and set aside. It is made clear that the petitioner’s
th th
services from 12 June 1997 to 20 September 2004 will be treated as
continuous in service. Accordingly, he is entitled for all consequential
nd rd
benefits of continuity of service, including the 2 and 3 benefits of ACP
Scheme.
th
(iii) It is made clear that order dated 24 February 2025 is quashed and
set aside only to the extent of recovery of Rs.6,90,441/- from the
petitioner and the rest of the order is confirmed.
(iv) It is needless to clarify that by considering continuity of service, the
petitioner will be entitled for revised pension, as per rules.
19.
The Writ Petition stands disposed of in the aforesaid directions.
[PRAVIN S. PATIL, J. ] [MADHAV J. JAMDAR, J.]
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6988 OF 2025
Balaso Bapu Desai … Petitioner
Digitally
signed by
UDAY
SHIVAJI
JAGTAP
Date:
2026.03.30
21:00:59
+0530
UDAY
SHIVAJI
JAGTAP
Versus
The State Of Maharashtra Throrugh The Secretary … Respondent
Village Development
………….
Mr. Prashant Bhavake for the Petitioner.
Ms. T.J. Kapre, AGP for the Respondent – State.
Mr. Kedar Lad a/w Mr. Indrayani Patil for respondent Nos. 2 and 3.
………….
CORAM : MADHAV J. JAMDAR &
PRAVIN S. PATIL, JJ.
th
DATE : 27 MARCH, 2026.
ORAL JUDGMENT : (Per Pravin S. Patil, J.)
1.
Heard Mr. Bhavake, learned counsel for the petitioner and learned
AGP for the respondent - State.
2.
At the outset, learned counsel for respondent Nos.2 and 3 tendered
written submissions on record. The same are accepted.
3.
The petitioner approached before this Court challenging the order
Uday S. Jagtap 1 of 10
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th
dated 18 June 2024 passed by respondent No.2 – Chief Executive
Officer, Zilla Parishad, Kolhapur thereby declaring the termination period
th th
of the petitioner from 12 June 1997 to 20 September 2004 as ‘break in
th
service’ and also challenging the order dated 24 February 2025, passed
by respondent No.3 – Deputy Chief Executive Officer, Zilla Parishad,
Kolhapur by which they have revised the pay-scale of the petitioner in
th
pursuance of order dated 18 June 2024 and passed the order of
recovery of excess amount of Rs. 6,90,441/- from pensionary and other
retirement benefits.
4.
It will be relevant in the present matter to state certain facts of the
th
case. The present petitioner was initially appointed on 24 October 1985
as a Driver at respondent – Zilla Parishad, Kolhapur. After rendering 12
years of service, he was terminated by respondent No.2 without
th
conducting any inquiry, on 13 June 1997. The petitioner challenged
the said termination order before this Court by preferring Writ Petition
No. 8663 of 2003. This Court by considering the entire submissions of
th
both the parties vide order dated 9 September 2004, passed the
following order :-
th
“(i) The impugned order dated 18 June 1997 (Exhibit “G”)
is quashed and set aside. Consequently the petitioner shall be
entitled to reinstatement but without back wages.
Uday S. Jagtap 2 of 10
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(ii) The respondent No.3 shall be at liberty, however, to
initiate fresh enquiry against the petitioner if the appointment
was obtained by the petitioner fraudulently or illegally under
the employment of freedom fighter scheme in the government
th
service as per the Government circular dated 12 October,
1965.”
5.
In pursuance of the order of this Court, the respondent – Zilla
Parishad, Kolhapur has reinstated the petitioner in service and granted all
consequential benefits, including revision of pay-scale and allowances
accordingly. The petitioner also pointed out that from the date of
reinstatement up to the age of superannuation, he has been treated as a
regular employee and all consequential benefits of service, including
benefits of Assured Career Progression (ACP) Scheme has been also
awarded to the petitioner. As such, the petitioner received all the
benefits of service as a regular employee. Accordingly, the petitioner,
st
having attained the age of superannuation, on 31 January 2023 get
superannuated.
6.
After the superannuation of the petitioner, his pension proposal
was not processed by the respondent – Zilla Parishad and, therefore, the
petitioner was constrained to approach before this Court by filing Writ
Petition No. 10573 of 2023. This Court after considering the grievance
Uday S. Jagtap 3 of 10
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th
raised by the petitioner passed the order on 16 January 2025, which
reads thus :-
“1. We are told that the benefit of pension is denied to the
Petitioner only on the ground that the enquiry into the aspect
as to whether nomination of 'freedom fighter' was validly
conferred upon him or not and when we specifically asked the
learned counsel for Zilla Parishad about what is the outcome of
the said enquiry, he state that the enquiry is still pending.
2. We are surprised that enquiry into a small issue like this has
been kept pending for more than two decades and definitely
we do not approve of such a conduct on part of the employer.
3. We are informed that the Petitioner has completed 37
years of service and in light of these circumstances, ignoring
the pendency of the enquiry, considering whether the service
rendered by the Petitioner would make him entitle for
conferment of pensionary benefits, we direct Respondent Nos.2
and 3 to forward his proposal for pensionary benefits to the
competent authority within a period of four weeks from today.
We would have disposed of the Petition, but since we want to
ensure the compliance of the order, we direct listing of the
Petitioner on 03/03/2025, under caption, 'for compliance'.”
7.
After the order of this Court, the proposal of pension of the
petitioner was forwarded to the concerned Authority. The Authority has
considered the pension case of the petitioner, however, it is pointed out
th
that as per the order of this Court dated 9 September 2004, as he was
not granted the back salary, it amounts to break in the service. On that
th
basis the respondent – Zilla Parishad passed the order dated 18 June
Uday S. Jagtap 4 of 10
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th
2024 thereby held that the period of service of the petitioner from 12
th
June 1997 to 20 September 2004 shall be treated as break in service for
th
all purposes. As a result, further order came to be passed on 24
February 2025 and by this order the pay-scale of the petitioner was
revised and an amount of Rs. 6,90,441/- was directed to be recovered
from the petitioner.
8.
In the background of abovesaid factual position, the petitioner
again approached before this Court by way of present petition,
challenging the orders passed by the respondent – Zilla Parishad.
9.
The respondent – Zilla Parishad in response to the notices issued by
this Court, appeared and filed their written submissions. According to
th
the respondent – Zilla Parishad, this Court vide its order dated 9
September 2004 has only stated that the petitioner be reinstated but
without back wages. According to them, as the petitioner was not held
entitled for the back wages, consequently the period from the date of
termination till the date of reinstatement, is required to be treated as
‘break in service’ and, therefore, they have taken this decision.
10.
Learned AGP also supported the submission made by the
Uday S. Jagtap 5 of 10
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respondent – Zilla Parishad in the matter and strongly opposed the
present petition.
11.
In light of the above submissions of both the parties, it is clear that
this Court while deciding Writ Petition No.8663 of 2003 by its judgment
th
and order dated 9 September 2004, has decided the case on its own
merit and held that termination of petitioner is illegal. This Court has
directed the respondent – Zilla Parishad to reinstate the petitioner in
service but without back wages. It is nowhere stated that petitioner will
not be entitled for continuity of service.
12.
In our considered opinion, observations of this Court ‘without back
wages’ means that the employee would not be entitled for the salary of
the period from the date of termination till the date of reinstatement, but
he would be entitled for all benefits of service. The word ‘reinstatement’
means to reinstall, to re-establish, to place again in a former state,
condition, or office; to restore to a state or position position. As such, in
our opinion as this Court has directed the reinstatement without back
wages means, the petitioner is entitled for all consequential benefits of
service but without back wages for the said period.
Uday S. Jagtap 6 of 10
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13.
In the circumstances, it would be relevant to refer the judgment of
the Hon’ble Supreme Court of India in case of Deepali Gundu Surwase
1
Vs. Kranti Junior Adhyapak Mahavidyalaya & Ors. wherein in para 21
the Hon’ble Supreme Court has discussed the meaning of the
‘reinstatement’. Paragraph 21 of the said decision reads thus :-
“21. The word "reinstatement" has not been defined in the Act
and the Rules. As per Shorter Oxford English Dictionary, Vol. 2,
3rd Edn., the word "reinstate" means to reinstall or re-establish
(a person or thing in a place, station, condition, etc.); to
restore to its proper or original state; to reinstate afresh and
the word "reinstatement" means the action of reinstating; re-
establishment. As per Law Lexicon, 2nd Edn., the word
"reinstate" means to reinstall; to re-establish; to place again in
a former state, condition or office; to restore to a state or
position from which the object or person had been removed
and the word "reinstatement" means establishing in former
condition, position or authority (as) reinstatement of a
deposed prince. As per Merriam-Webster Dictionary, the word
"reinstate" means to place again (as in possession or in a
former position), to restore to a previous effective state. As per
Black's Law Dictionary, 6th Edn., "reinstatement" means:
"To reinstall, to re-establish, to place again in a former state,
condition, or office; to restore to a state or position from which
the object or person had been removed."
14.
In the present matter, it would also be relevant to consider the fact
that the respondent – Zilla Parishad immediately after the order passed
by this Court in the year 2004, has rightly reinstated the petitioner in
service and granted him all benefits, including the notional increment
1 (2013) 10 SCC 324
Uday S. Jagtap 7 of 10
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and benefits of ACP Scheme. As such, till the date of superannuation, the
petitioner has been awarded all the benefits. But immediately after his
superannuation, the respondent – Zilla Parishad has passed the impugned
th th
orders on 18 June 2024 and 24 February 2025.
15.
In the background of this factual position, it will be relevant to
refer the Judgment of Hon’ble Supreme Court of India in the case of State
2
of Punjab and Ors. Vs. Rafiq Masih and observed in paragraph no.18 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 the employees belonging to Class III
and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees
who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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.
2 (2015) 4 SCC 334
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(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.”
16.
As per the law laid down by the Hon’ble Supreme Court of India in
case of Rafiq Masih (supra) , it is held that in a case where an employee
who is Class III or Class IV category, then in such cases, the recovery of
his salary is not permissible if he is due for retirement within one year, of
the order of recovery.
17.
In the present case, admittedly after the superannuation of the
petitioner, this impugned order came to be passed by the respondent –
Zilla Parishad, which according to us is illegal for the simple and valid
reason that there is no break in the service of the petitioner. In addition
to same, as per the judgment of the Rafiq Masih (supra) , the recovery of
amount is not permissible. Hence, on both counts, the impugned orders
th th
dated 18 June 2024 and 24 February 2025 do not survive and
accordingly same are set aside.
18.
For the reasons stated above, the present petition deserves to be
allowed. Hence, we pass the following order :-
Uday S. Jagtap 9 of 10
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O R D E R
(i) The Writ Petition is allowed.
th th
(ii) The impugned orders dated 18 June 2024 and 24 February 2025
are hereby quashed and set aside. It is made clear that the petitioner’s
th th
services from 12 June 1997 to 20 September 2004 will be treated as
continuous in service. Accordingly, he is entitled for all consequential
nd rd
benefits of continuity of service, including the 2 and 3 benefits of ACP
Scheme.
th
(iii) It is made clear that order dated 24 February 2025 is quashed and
set aside only to the extent of recovery of Rs.6,90,441/- from the
petitioner and the rest of the order is confirmed.
(iv) It is needless to clarify that by considering continuity of service, the
petitioner will be entitled for revised pension, as per rules.
19.
The Writ Petition stands disposed of in the aforesaid directions.
[PRAVIN S. PATIL, J. ] [MADHAV J. JAMDAR, J.]
Uday S. Jagtap of 10 10
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