1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.651 OF 1995 Mrs.Pushpa Laxman Choudhari, Indian Citizen, Adult, Occu. Service, Residing at Room No.12, Shivganga Bldg., 1st Floor, Nava Pada, Subhash Road, Dombivli (W), 421 202. ..... Petitioner V/s. 1. The State of Maharashtra, through Secretary, Govt. of Maharashtra, Department of Education and Employment, Mantralaya, Bombay. 2. The Deputy Director (Education), Nashik, Division Nashik. 3. The Education Officer, Jilha Parishad, Thane. 4. The Education Officer, Kalyan Mahanagarpalika, Kalyan. 5. The Principal, Vidyamandir Shala, Dattakrupa, Thangewadi, Murbad, K.M.C. School No.47, Kalyan. ..... Respondents WITH WRIT PETITION NO.1887 OF 2005 Smt.Pushpa Laxman Choudhary, Aged : Adult, Occu – Service, R/o Room No.12, Shivganga Bldg., 1st Floor, Naupada, Subhash Road, 2 Dombivli (E), District. Thane. ...... Petitioner V/s. 1. The State of Maharashtra, Through the Secretary, School Education Department, Mantralaya, Mumbai – 400 032. 2. The Dy.Director of Education, Mumbai Region, Mumbai. 3. The Administrative Officer, Kalyan Dombivli Municipal Corporation, School Board, Kalyan Dist. Thane. 4. The Principal, New Satara Welfare Centre’s Vidyamandir Shala, at Thangewadi, Kalyan (W), District Thane. ..... Respondents Mr.N.V.Bandiwadekar, for the petitioner. Mr.A.I.Patel, AGP, for respondents – State. CORAM :P.B.MAJMUDAR & R.M.SAVANT, JJ. DATE : 08th June, 2010 ORAL JUDGMENT ( PER R.M.SAVANT, J.) :- 1. In writ petition No.651 of 1995, the petitioner seeks a declaration that the petitioner is entitled to salary in the pay scale of Rs. 1200-2040 with effect from her initial appointment. The said scale as per the amendment granted by this Court, has been corrected to Rs. 3 1400-2600. The petitioner also claims a relief that the respondents be directed to fix the pay of the petitioner according to the aforesaid pay scale from the date of her initial appointment and give her all consequential benefits flowing therefrom forthwith. 2. In Writ petition No.1887 of 2005, the petitioner challenges the order dated 05-02-2005 issued by the respondent No.3, by which it has been directed to recover the excess amount of salary paid to the petitioner from 20-12-1987 to March 1992. 3. The factual matrix in brief, can be stated thus : The petitioner came to be appointed as a Teacher in the respondent No.4 School in the trained pay scale on 20-12-1987. The petitioner worked on full time basis. However, suddenly from 1992, the petitioner was paid the salary of an untrained teacher for the month of March 1992 and on inquiry made by the petitioner, she was informed that she has been relegated to the pay scale of an untrained teacher. The Petitioner has passed S.S.C., and Art Teacher’s Diploma Course. Thereafter, the petitioner has acquired qualification of Art Master’s Degree and she therefore, had requested the respondents to make an entry in the service book. The respondent No.4 had also made recommendation to the Director of Education to consider the representation of the petitioner. The petitioner received reply on 30-03-1993, by which she was informed that 4 the pay scale is in accordance with her qualification and as per Government Resolution dated 09-08-1989. As indicated above, the petitioner has been paid a salary of an untrained teacher, though she was being paid a salary of trained teacher since from the date of her initial appointment i.e. 20-12-1987. The respondents sought to make recovery against the petitioner of the excess amount paid to her as a trained teacher and therefore, the petitioner was constrained to file the second petition being Writ Petition No.1887 of 2005. The said petition challenges the consequential action of recovery being taken by the respondents after lowering the petitioner to the scale of an untrained teacher. 4. The principal grievance made in the above petition is that the petitioner has not been heard by the respondents before taking any decision, as regards lowering the petitioner to the scale of an untrained teacher. The said position has not been disputed by the learned AGP appearing for the Education Officer. It is trite that when an action has a penal consequence, the least that is expected is that modicum of procedure is required to be followed before the decision is taken which is prejudicial to any party. In our view, therefore, interest of justice would be served if the impugned orders dated 30-03-1993 of lowering the petitioner to the scale of an untrained teacher, is set aside as also the decision for the recovery of the excess amount from the petitioner, and the matter is 5 relegated back to the Education Officer i.e. respondent No.3 for de novo consideration of the pay scale, to which the petitioner would be entitled to in terms of her qualification. On such remand, the respondent No.3 would hear the petitioner and other concerned parties and pass appropriate order in accordance with law. 5. The petitioner to appear before the Education Officer (Primary) Zilla Parishad, Thane, (respondent No.3), on 20-06-2010 at 11.00 a.m. The respondent No.3 thereafter to fix the schedule for deciding the matter as per his convenience and in any event to pass final orders within two months from 20-06-2010. The parties would be entitled to rely upon such material as they deem fit in support of their respective cases. Pending consideration of the matter by the respondent No.3, the respondents are restrained from effecting any recovery against the petitioner and the same would hinge upon the final order that would be passed by the respondent No.3, after hearing the petitioner and the concerned parties. 6. On behalf of the petitioner, statement is made by her learned counsel, that though order dated 30-03-1993 has been set aside, the petitioner would not claim the benefit of the higher scale of trained teacher pending consideration of the matter by the respondent No.3 and would be bound by the decision of the respondent No.3, subject to further 6 challenges, if any. It is made clear that contentions of the respective parties are explicitly kept open for being agitated before the respondent No.3. In case the decision of the Education Officer is adverse to the petitioner, recovery shall not be effected from the salary of the petitioner for a period of eight weeks from the date of the communication of the said decision. 5. Both the Writ Petitions are accordingly disposed of by making the rule absolute in the above terms. ( R.M.SAVANT, J. ) ( P.B.MAJMUDAR, J. )