1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1840 OF 1994 1. Pandurang S/o Ramchandra Kulkarni} President of Education Extension } Officer’s Organization } Age : 52 Yrs., Occ. Service, } R/o : Sahyognagar, Beed. } Dist. Beed. } 1. Sitaram Padaji Misal } Secretary of Education Extension } Officer’s Organization } Age : 52 Yrs., Occ. Service, } R/o : Beed, Dist. Beed. } ..... PETITIONERS V E R S U S 1. The State of Maharashtra } 2. Chief Executive Officer } Zilla Parishad, Beed, } Dist. Beed. } 3. Education Officer (Primary) } Zilla Parishad, Beed, } Dist. Beed. } .... RESPONDENTS Mr. R.R.Suryawanshi, Advocate for petitioner. Mr. K.G.Patil, Assistant Govt. Pleader for State. Mrs. M.A.Kulkarni, Advocate for respondent no. 2. 2 CORAM : B.R.GAVAI & S.V.GANGAPURWALA, JJ. DATE OF JUDGMENT: 08/06/2010 ORAL JUDGMENT : [ PER – B.R.GAVAI, J. ] 1. By way of present Writ Petition, the petitioners challenge communication dated 15/4/1994, which is issued on the basis of the Circular dated 28/10/1993 issued by respondent no. 1. The petitioners are the office bearers of the Education Extension Officers Association. The petitioners and the members of the Association, who are employees in the Education Department of Zilla Parishad were temporarily promoted to officiate the post of Extension Officer (Education). From the date promotion, the said employees were given pay scale of Extension Officer ( Education ). Respondent no. 1 vide communication dated 28/10/1993 issued instructions to the Zilla Parishad to the effect that the persons who were officiating the post of Extension Officer on temporary basis, were not entitled to the pay scale of the Extension Officer. Accordingly, the said pay scale was directed to be withdrawn. Respondent no. 2 vide order dated 15/4/1994 ordered withdrawal of the pay scale applicable to the Extension Officers and further directed recovery of the excess amount paid to the employees. This Court vide Order dated 23/6/1994 has granted stay to the impugned communication. 3 2. The Apex Court in the case of Syed Abdul Qadir & others V/s State of Bihar & Others reported in 2009 (1) Supreme - 163 has held that if higher pay scale is given to the employees erroneously and not on account of any fault attributable to such employees, then recovery of such excess payment is not permissible from the employees. Admittedly, the higher pay scale was given to the employees officiating in the post of Extension Officer ( Education ) by their superiors. It is nobody’s case that on account of some act attributable to such employees, such higher pay scale was given to them. When there is no fault on the part of the petitioners for the excess payment made to them, in view of the law laid down by the Apex Court cited supra, recovery could not be permissible in law. 3. In that view of the matter, Rule is made absolute in terms of prayer clause ‘ C ’ only in so far as the petitioners and the members of their association are concerned. [ S.V.GANGAPURWALA ] [ B.R.GAVAI ] JUDGE JUDGE knp/WP 1840.94 ( J )