1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6178 OF 1999 Ms C.T. Acharya, nee Dr. Mrs. Ashwini Ajitkumar Paradkar ..Petitioner. Vs. State of Maharashtra and others ..Respondents. ..... Mr. A.M. Joshi for the Petitioner. Mr. R.M. Patne, AGP for Respondents 1 and 2. .... CORAM: DR. D.Y. CHANDRACHUD, J. 17th April, 2008. P.C. : 1. The Third Respondent is the Deccan Education Society. Some time in 1979 an advertisement was issued by the Third Respondent inviting applications for the post of a lecturer in a Junior College in the subject of Physics. The Petitioner applied for the post and was duly selected. At the relevant time the Third Respondent was conducting a school owned by the Hindustan Organic Chemicals Limited at Rasayani which was a non-grant in aid school. The Petitioner had completed her M.S. from the University of Baroda and had submitted a Ph.D. thesis. Having regard to her qualifications the Petitioner claims that she was given a higher initial salary with the basic pay of Rs.600/-. With effect from 7th July, 1980 the Petitioner came to be transferred to the 2 Fergusson College at Pune which is also under the management of the Deccan Education Society. The Petitioner subsequently acquired a Diploma in higher education and applied for being placed in the graduate scale of Rs.600-1030. The Petitioner was accordingly granted the benefit of pay fixation in the graduate scale. 2. Upon the recommendations of the Fourth Pay Commission being accepted, the Petitioner was granted a basic pay of Rs.2,300/- as on 1st June, 1987. After she had completed 12 years of service, the Petitioner applied for a higher scale. Since no steps were taken by the Education Department, the Petitioner eventually instituted Writ Petition 3792 of 1998 for a suitable direction in regard to her pay fixation after completion of 12 years' service. On 9th November, 1998 a Division Bench of this Court directed the Deputy Director of Education to decide upon the Petitioner's claim within six weeks. Since the order was not complied with, it has been stated that on 3rd March, 1999 a contempt notice was issued suo motu against the Deputy Director of Education. Eventually, a pay fixation was carried out by the Deputy Director and the pay of the Petitioner came to be fixed. The 3 authorities have, however, directed that excess payment that was made to the Petitioner from 1st January, 1986 upto date, consequent upon wrong fixation of pay in the pay scales recommended by the Fourth Pay Commission be recovered. From the orders on the record it appears that the Petitioner was initially granted a pay fixation of Rs.2,240/- in the pay scale of Rs.2,000-3,500. The authorities have taken the position that the initial pay fixation of Rs.2,240/- was erroneous and that the correct fixation should have been of Rs.2,000/- on 1st January, 1986. On that basis, the pay of the Petitioner has been progressively recomputed so that on 1st July, 1991 she should be entitled to a pay fixation of Rs.2,650/-. Be that as it may, recoveries have been directed to be effected. 3. Counsel appearing for the Petitioner has submitted that the Petitioner is a highly qualified teacher who has spent long years of service and at this point of time it would be contrary to the interest of justice to direct that recovery should be made. It has been urged that there was no misrepresentation on the part of the Petitioner and the authorities concerned were placed in full possession of all relevant facts. Hence, erroneous pay fixation should not result in a consequence of recoveries at this point of time. 4 4. The submission which has been urged on behalf of the Petitioner is supported by the judgment of the Supreme Court in Sahib Ram v. State of Haryana1. In that case, the Supreme Court held that the Appellant who was a librarian did not possess the required educational qualifications to warrant a relaxation as claimed and the Principal erred in granting a relaxation. Since the date of the relaxation that was granted to the Appellant, the Appellant had been paid his salary in the revised scale. The Supreme Court observed that it was not on account of any misrepresentation made by the Appellant that the benefit of higher pay scale was given to him but that it was as a result of the wrong construction by the principal that the error took place for which the Appellant could not be held at fault. The Supreme Court, therefore directed that the amount which was paid until date would not be recovered. Applying the principles which have been laid by the Supreme Court in the aforesaid judgment, there is merit in the 1 1995 Supp (1) SCC 18. 5 submission which has been urged to the effect that the direction in regard to the making of recoveries should be quashed and set aside. During the pendency of these proceedings, an interim stay was granted on 16th August, 2000 restraining the Respondents from recovering any amount from the dues payable to the Petitioner. That order has continued to hold the field during the pendency of these proceedings. The Petition shall accordingly stand allowed in part by directing that no recoveries shall be made in respect of the excess payments made to the Petitioner in terms of the directions that are impugned in these proceedings. Rule is made absolute in the aforesaid terms. There shall be no order as to costs. *****