: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4440 OF 1996 WRIT PETITION NO.4440 OF 1996 WRIT PETITION NO.4440 OF 1996 WITH WITH WITH CIVIL APPLICATION NO.1577 OF 2008 CIVIL APPLICATION NO.1577 OF 2008 CIVIL APPLICATION NO.1577 OF 2008 Lakhu Gopal Gaikwad ...Petitioner. V/s. The State of Maharashtra & Ors. ...Respondents. Mr.D.S.Mhaispurkar i/by K.V.Saste , advs. for the Petitioner. Mr.C.R.Sonawane, AGP for the Respondent/State. CORAM: Bilal Nazki CORAM: Bilal Nazki CORAM: Bilal Nazki & J.H.Bhatia,JJ J.H.Bhatia,JJ J.H.Bhatia,JJ. DATE : 16th December, 2008. DATE : 16th December, 2008. DATE : 16th December, 2008. P.C.: P.C.: P.C.: 1. Petitioner was working as a teacher and has retired now with effect from 31st October, 2008. He initially got appointment as Assistant Teacher in the year 1978 in a different school. His pay was fixed at Rs.410/-. After his services were regularised and approved by the Competent Authority, he shifted to another school, which had another management, in 1980 and his pay was fixed in the same pay scale and his pay started at a pay of Rs.410/-. On 18-5-1993 auditor during the audit pointed out that the petitioner had been placed in wrong pay-scale at the time of his initial appointment, i.e., in 1978 and on the basis of this audit objection, respondents ordered : 2 : recovery of the arrears and deductions in the salary. Petitioner’s pay was fixed by the respondents as early as in 1978-79 and on the basis of earlier fixation, he got subsequent increments and benefits of revision for 15 years. After having given benefit of 15 years, auditor pointed out mistake in fixation of salary at the time of initial appointment and the respondents passed an order, which is impugned in this petition without even issuing show-cause notice to the petitioner. Order has a severe consequences. If the order is allowed to be complied, the petitioner, who is a teacher will have to pay back to the Government a huge sum of money, which he will not be in a position to do. When this Court entertained this writ petition in the year 1996, the Court passed interim relief staying the recovery for the amount already paid. The Court did not order that the respondents should not re-fix the salary of the petitioner in accordance with the report of the auditor. But it appears that the respondents continued to pay the salary to the petitioner as calculated on the basis that he was put in scale of Rs.410/- in the year 1978-79 so the net result is that the petitioner continued to draw salary as fixed by the respondents initially till 31st October, 2008. It has been stated in the counter affidavit that: : 3 : "However, as per interim relief in terms of prayer clause "C" of the petition granted by this Hon’ble High Court on 02.09.1996 the Petitioner is continued to draw his pay accordingly as held admissible to him as per higher starting basic pay of Rs.410/- given to him from the date of his initial appointment and even his subsequent pay fixation as on 1.1.1996 as per Fifth Pay Commission, and the same has been verified and certified by the Senior Auditor now designated as Accounts Officer, District Audit Squad (Education), Kolhapur. I say that the Petitioner is retiring by 31.10.2008." There was no direction by this Court to adopt the course as has been adopted by the respondents as revealed in the counter but still they adopted this course. It is material to note that the Accounts Officer, who is senior auditor also, verified and certified entitlement of the petitioner to the salary he was drawing till his retirement. Since the order impugned was passed after 15 years of fixation of the pay of the petitioner, it has severe consequences. The order was passed without even issuing show-cause notice to the petitioner and since respondents have continued to accept the petitioner’s salary as it was fixed from 1978, we feel that petition deserves to be allowed. The impugned order is set aside. Respondents are directed to fix the pay-scale of the petitioner on the basis of the salary last drawn. : 4 : 2. As the petition itself is disposed off, civil application does not survive and stands disposed off accordingly. (Bilal Nazki, J.) (Bilal Nazki, J.) (Bilal Nazki, J.) (J.H.Bhatia, J.) (J.H.Bhatia, J.) (J.H.Bhatia, J.)