1wp-3599-97 -KKT Lrs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No.3599 of 1997 Shri Gajanan S. Chalke ..Petitioner. vs. State of Maharashtra & Ors. ..Respondents. Shri Suresh S. Pakale, Advocate for the Petitioner. Mr S.N. Bhosale, A.G.P., for Respondent Nos. 1 and 3. CORAM: D.K. DESHMUKH AND K.K.TATED,JJ DATED: 10TH NOVEMBER,2009 2wp-3599-97 -KKT ORDER:- (Per K.K.Tated,J) 1. Heard the learned counsel for the parties. Perused the petition. 2. By this petition, under Article 226 of the Constitution of India, the petitioner challenges recovery of sum of Rs.4,432/- which was recovered by the Respondent No.2 from his salary as excess payment. The petitioner further seeks direction against the respondent Nos.1 and 2 to refix his pension in the pay scale of Rs. 435-15-770 and claims pension accordingly. It is the case of the petitioner that he joined the service of the respondent No.2 as Assistant Teacher on 23.10.1958 and thereafter the petitioner was appointed as a Graduate Teacher in the pay scale of Rs.420-15-770 on 12.2.1980. Subsequently, the petitioner was promoted to the post of Central School Headmaster and posted at Central School Sangalwadi on 23.11.1990. Thereafter, the Auditor raised an objection as 3wp-3599-97 -KKT regards the petitioner s pay fixation on 12.7.1991 and suggested a recovery of Rs.4,432/- from the petitioner s salary. The case of the petitioner is that the respondent No.1 ought to have fixed the pay scale of the petitioner as eligible to the Graduate Teacher and the same was not done, and therefore the Auditor raised objection for recovery of sum of Rs.4432/-. The case of the petitioner is that on completion of graduation in 1977 he was given appointment as Graduate Teacher on 12.2.1980 and posted at Central School, Nathawadi, Taluka Vaibhavwadi. Thereafter, the petitioner was promoted to the post of Central School Headmaster on 23.11.1990. It is the case of the petitioner that since he was given appointment as a Graduate Teacher he became entitled to get graduate pay scale. The case of the petitioner is that he was given appointment as Graduate Teacher with effect from 12.2.1980 and on that date he was in the pay scale of Rs.420-15-770. Therefore, it is the 4wp-3599-97 -KKT case of the petitioner that as per rules he ought to have been given a pay scale of Rs. 435-15-770 by giving one additional increment. However, the respondent Nos. 2 and 3 did not fix his salary accordingly and therefore the Auditor raised objection and directed to recover a sum of Rs.4432/- from petitioner s salary/pension. 3. On the other hand, the learned Asstt. Government Pleader, appearing on behalf of the respondents, submitted that on 12.2.1980 the petitioner was appointed as an Assistant Primary Teacher (Graduate) in the pay scale of Rs. 360-15-500-20-660-EXTN-20-760 (Revised as Rs. 1400-2600 on 1.1.1986). It was not a promotion but was a change in the pay scale and hence his pay was simply to be fixed as per the Maharashtra Civil Services (Pay)Rules 1981 i.e. Rule 11(1) (A) instead of Rule 11 (2). 4. The respondents specifically stated that when the pay scale was changed the option was given to the petitioner but same was not 5wp-3599-97 -KKT accepted by the petitioner within two months. The petitioner submitted his option on 1.12.1990 i.e., after expiry of time and therefore same was not accepted. As the petitioner failed to accept the option within a specified time, the Auditor raised objection about the excess payment. Therefore, the respondent issued notice dated 8.1.1993 to the petitioner for recovery of excess amount. It is admitted fact that as the petitioner failed to opt in a specified time the Auditor raised objection about the excess payment. It is to be noted that the petitioner executed affidavit dated 25th August, 1994 stating that if any excess amount is paid by the respondents in respect of salary, in that case, the petitioner has no objection to recover the same from his retiremental benefits. The said affidavit is annexed by the respondents in their affidavit-in-reply dated 9th May, 1998. On the basis of the said objection and affidavit dated 25th August, 1994 the respondents recovered 6wp-3599-97 -KKT amount from the petitioner. 5. Considering these facts, we do not find any substance in the present writ petition and same is dismissed. Rule is discharged. No order as to costs. (D.K. DESHMUKH,J) (K.K.TATED,J)