1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.723 OF 2008. Shri Thomas A. Fernandes aged 60 year, resident of Alto de Guimaraes, Panaji, Goa. .. Petitioner Versus (1) The Director of Education, Government of Goa, having office at Directorate of Education, Panaji-Goa (2) State of Goa, through its Chief Secretary, having office at Secretariat, Porvorim, Bardez- Goa. (3) The Headmistress, Government High School, Namoshim, Guirim, Bardez-Goa. .. Respondents. Mr. M. S. Sonak,Advocate for the petitioner. Mr. Vivek Rodrigues, Additional Government Advocate for the respondent Nos. 1 & 2. CORAM :- B. P. DHARMADHIKARI & U. D. SALVI, JJ. DATE : 22 nd June, 2009 . ORAL JUDGMENT : (PER B. P. DHARMADHIKARI) 1. Rule, returnable forthwith. Heard finally by consent. 2 2. The challenge is to the recovery order on the ground that excess payment has been made to the petitioner while implementing the directions of the Central Administrative Tribunal as contained in its judgment dated 11.07.1990 delivered in T.R. 95/1987 and 98/1987. By the said judgment, the Central Administrative Tribunal found that the petitioner though appointed against an additional post of Laboratory Assistant, could not have been given pay scale of Rs.260-430/- as relevant pay scale for the said post was Rs.290-500/- The Central Administrative Tribunal, however, directed release of emoluments as per its order from 16.09.1985 by declining the arrears. The entitlement of the petitioner has been worked out accordingly and his pay scale has been initially fixed in the said pay scale of Rs.290-500/- on 18.12.1975 by releasing notional increment and then every year, the notional increment has been released in his favour and then his pay as on 18.12.1985 has been worked out and thereafter, he has been paid the arrears for the period as directed by the orders of the Central Administrative Tribunal. His pay has also been revised and fixed in the pay scale of Rs.330-530/- with effect from 03.03.1983. 3 3. Then, the show cause notice dated 12.09.2006 came to be served upon him mentioning that the amounts are paid to him in excess. The show cause notice mentions that the petitioner's pay scale should have been fixed @ Rs.260/- as on 18.12.1975 in the pay scale of Rs.290-500/-. The petitioner after receipt of said show cause notice has made number of representations, but those representations have not been considered and ultimately by the order dated 10.10.2008 while fixing his pension upon his superannuation at the age of 60, his provisional pension was fixed @ Rs.1,913/- only. 4. In this background, Advocate Sonak for the petitioner has contended that the petitioner has been victimised only because after his fixation after the order of the Central Administrative Tribunal, he has again approached this Court in the matter of age of superannuation with grievance that proposed action of his retirement at the age of 58 was unsustainable. He states that as entire cadre of Laboratory Assistant was to benefit from the said decision, with a view to punish him, the alleged excess payment has been worked out. 4 5. The learned Additional Government Advocate has contended that the show cause notice as also the orders subsequently passed clearly show that the representation made by the petitioner was not found satisfactory and his pay has been properly fixed as per the directions of the Central Administrative Tribunal. He states that his pay was fixed on 18.12.1975 @ Rs.260/- in the pay scale of Rs.260-430/- and then it has been refixed in the pay scale of Rs.330-530/- with effect from 16.9.1985. He has invited our attention to the impugned communication dated 3.9.2007 annexed by the petitioner. He states that the petitioner had made representation to the Director of Education, thereafter, vide order dated 12.05.2008 that representation has been turned down. 6. We perused the orders of the Central Administrative Tribunal, show cause notice and also the impugned order. The stand of the respondent Government before the Central Administrative Tribunal is that as the petitioner was appointed against an additional post of Laboratory Assistant, the pay scale of Rs.260-430/- was only applicable to him and he could not have been given the pay 5 scale of Rs.290-500/-. The said stand has been found to be incorrect and the Central Administrative Tribunal has held that the right pay scale to be applied at that time was Rs.290- 500/-. This adjudication by the Central Administrative Tribunal has become final and has, thereafter, been also implemented. It is, therefore, obvious that the impugned action of fixing the pay of the petitioner @ Rs.260/- on 18.12.1975 cannot be sustained because the pay scale of Rs.260-430/- was never applicable to the petitioner. The show cause notice itself shows non-application of mind because though it mentions the pay scale of Rs.290-500/-, it fixes the pay of the petitioner at Rs.260/- at that stage. We have enquired from learned Additional Government Advocate and we do not find that the respondents contend that the notional release of increment in favour of the petitioner was incorrect and resulted in any excess payment to him. That is not the case made out at all. 7. In view of this position, we are not considering the other arguments advanced by Advocate Sonak that when the petitioner is not responsible for alleged excess payment, the same cannot be recovered from him after so many years and that too at the stage of his retirement. 6 8. We find that the show cause notice dated 12.09.2006 as also the impugned order dated 3/13.9.2007 unsustainable and contrary to the orders of the Central Administrative Tribunal and the same are accordingly, quashed and set aside. Consequentially, the order fixing the pension of the petitioner provisionally and proposing certain deductions also stands quashed and set aside. The order dated 12.05.2008 passed by the Director of Education on representation of the petitioner also stands set aside. The writ petition is allowed. In the facts and circumstances of the case, there shall be no order as to costs. Rule is made absolute accordingly. B. P. DHARMADHIKARI, J. U. D. SALVI, J. SMA