( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 1498 OF 1997 Sudhir s/o. Yeshwant Patil, Age : 33 years, R/o. Udaynagar, Lane No.1, Gangapur Road, Nashik. .. Petitioner. versus 1. Amrutvahini Sheti and Shikshan Vikas Sanstha, Amrutnagar, Taluka : Sangamner, District : Ahmednagar, through its Secretary. 2. Principal, Amrutvahini Polytechnic, Amrutnagar, Taluka : Sangamner, District : Ahmednagar. 3. Director of Technical Education, Aurangabad Region, Aurangabad. 4. The State of Maharashtra. .. Respondents. ....................... Mr. L.V. Sangit, Advocate, holding for Mr. V.J. Dixit, Senior Advocate, for the petitioner. ( 2 ) Mr. R.N. Dhorde, Advocate, holding for Mr. S.K. Shinde, Advocate, for respondent nos.1 and 2. Mr. V.D. Rakh, Assistant Government Pleader, for respondent nos.3 and 4. ........................ W I T H WRIT PETITION NO. 4487 OF 1998 1. Amrutvahini Sheti & Shikshan Vikas Sanstha, Amrutnagar, Taluka : Sangamner, District : Ahmednagar, through its Secretary. 2. The Principal, Amrutvahini Polytechnic, Amrutnagar, Taluka : Sangamner, District : Ahmednagar. .. Petitioners. versus 1. Sudhir Yeshwant Patil, Age : Major, Occupation : Service, R/o. c/o. Amrutvahini Polytechnic, Amrutnagar, Taluka : Sangamner, District : Ahmednagar. ( 3 ) 2. The State of Maharashtra, Through Director of Technical Education, Ghole Road, Pune - 5. 3. All India Council for Technical Education, Indira Gandhi Sports Complex, I.P. Estate, New Delhi - 110 001. .. Respondents. ............................ Mr. R.N. Dhorde, Advocate, holding for Mr. S.K. Shinde, Advocate, for the petitioners. Mr. L.V. Sangit, Advocate, holding for Mr. V.J. Dixit, Senior Advocate, for respondent no.1. Mr. V.D. Rakh, Assistant Government Pleader, for respondent no.2. Mr. D.A. Karnik, Advocate, instructed by Mr. Vivek Dhage, Advocate, for respondent no.3. .......................... CORAM : B.R. GAVAI & S.V. GANGAPURWALA, JJ. DATE : 1ST JULY 2010 ( 4 ) ORAL JUDGMENT (Per B.R. Gavai, J.) : 1. By way of Writ Petition No. 1498/1997, the petitioner / employee has challenged the judgment and order dated 17th October 1996, passed by the learned Presiding Officer, School Tribunal, Pune, to the extent of certain observations made in paragraph 22 of the judgment. 2. By way of Writ Petition No. 4487/1998, the petitioners (employer) / management have challenged the same judgment and order dated 17th October 1996. 3. The petitioner in Writ Petition No. 1498/1997 was appointed as a Lecturer in Amrutvahini Polytechnic College managed by respondent no.1 (employer) / management. It appears that the qualification of the petitioner is B.E. (Electronics) (Second Class). The petitioner was appointed on 27th June 1992. It, however, appears that vide Government Resolution dated 26th May 1992, it was laid down that a higher qualification was provided for appointment as Lecturer. In pursuance to the said Government Resolution, the services of the petitioner came to be terminated on 21st June 1995. Being aggrieved thereby, the aforesaid appeal was preferred by the petitioner in Writ Petition No. 1498/1997. An interim order was passed therein. There were series of litigations out of the said ( 5 ) interim order, which went up to the Apex Court and ultimately, the Apex Court directed the appeals to be heard finally. It is pertinent to note that several other employees were terminated and they had also preferred appeals and all appeals were heard together. By the order dated 17th October 1996, the appeals were allowed. Being aggrieved thereby, the petitioner in Writ Petition No. 1498/1997 has filed the present petition, to the extent that the School Tribunal has observed that the petitioner should possess the requisite qualification within a period of one year and also to the extent of the learned School Tribunal holding that the petitioner is not entitled to a higher pay scale. 4. Being aggrieved by the same order, Writ Petition No. 4487/1998 has been filed by the employer / management, to the extent, the learned School Tribunal has allowed the appeal filed by the respondent (employee) and petitioner in Writ Petition No. 1498/1997, set aside the termination of the respondent (employee) and directed reinstatement with all consequential benefits like continuity in service and back wages. 5. Since we are deciding both the petitions together, for the sake of convenience, the parties hereinafter would be referred to as "employee" and "employer". 6. Mr. L.V. Sangit, learned Counsel appearing for the ( 6 ) employee, submits that the Government Resolution, dated 26th May 1992, only provides that a higher pay scale should be paid to the persons who have acquired higher qualification. He submits that nowhere the said Government Resolution prescribes that the persons who are possessing lesser qualification should be terminated. He, therefore, submits that the action of the employer in terminating the services on the ground, that the employee does not possess the higher qualification, is not sustainable in law. He further submits that on the same ground, the observation of the learned Tribunal, that the employee should acquire higher qualification within a period of one year, also is not sustainable. He further submits that the employer / management has totally erred in recovering an amount of Rs. 40,000/- and odd, which according to the employer / management was paid in excess than the employee was entitled to. He submits that it is settled law, that on account of erroneous pay scale being paid to an employee, if an amount is paid more than to which a person is entitled, the same cannot be recovered. 7. Mr. R.N. Dhorde, learned Counsel appearing on behalf of the management / employer, on the contrary, submits that the learned Tribunal has erred in allowing the appeal. He submits that since the employee was not possessing the requisite qualification, his services were rightly terminated, which warrants no interference. He submits that in so far as recovery is ( 7 ) concerned, since the Polytechnic College run by the employer is not on grant in aid basis, the amount, which was paid in excess, has rightly been recovered. He further submits that the employee has further been found guilty of misconduct and has been terminated in the year 2007 and said termination has been challenged by way of appeal before the learned Tribunal. 8. Though, Mr. R.N. Dhorde, learned Counsel appearing on behalf of the management / employer, has contested the petition, he fairly states that the employer would not insist on the termination of the petitioner on the ground that he did not possess a higher qualification as prescribed under the aforesaid Government Resolution. He further fairly states, that since in view of the settled legal position, the recovery by the employer was not sustainable, an amount of Rs. 40,000/-, which was recovered from the employee, would be repaid to him along with Rs. 10,000/- towards interest component on the said amount. He, therefore, submits that an amount of Rs. 50,000/- would be paid to the employee within a period of eight weeks from today. 9. In that view of the matter, the two grievances raised by the employee in his petition, regarding his termination on the ground of not acquiring higher qualification and regarding recovery of the excess amount paid to him, do not survive. As such, we do not propose to adjudicate aforesaid two issues raised ( 8 ) by Mr. L.V. Sangit, learned Counsel appearing for the employee. 10. That leaves us, only with the question, as to whether the learned Tribunal was right in holding that the employee is not entitled to higher pay scale, in so far as the petition filed by the employee is concerned. We find that the learned Tribunal has rightly held that reading the Government Resolution dated 26th May 1992, an employee, in order to get higher pay scale, must acquire higher qualification as prescribed under the said Government Resolution. We do not find any infirmity in the order passed by the learned School Tribunal, to that effect. 11. In so far as the petition filed by the employer is concerned, the only question that arises for consideration is, as to whether order passed by the learned Tribunal, in so far as it sets aside the order of termination and directs reinstatement, warrants interference, or not. We find that the learned School Tribunal has rightly held that in view of the Government Resolution dated 26th May 1992, what is provided is that an employee would not get higher pay scale unless he acquires higher qualification, but an employee already in service cannot be terminated on the said ground, if otherwise he is eligible. In that view of the matter, no merit is found, in so far as petition filed by the employer, is concerned. ( 9 ) 12. As already discussed herein above, since two grievances of the employee are taken care of, by the statement made by Mr. R.N. Dhorde, learned Counsel appearing for the employer, we do not find that grievance of the employee, in so far as the third issue is concerned, requires any consideration. 13. In the result, we pass the following order : (i) Writ Petition No. 1498/1997 is disposed of, in the light of the statement made on behalf of the respondent (management / employer), that the management / employer shall pay an amount of Rs. 50,000/-, as observed in paragraph 8 above, to the petitioner (employee) within a period of eight weeks from today. In the light of the statement made on behalf of the respondent (management / employer) nothing survives for adjudication in the petition and, therefore, rule therein is discharged. (ii) Writ Petition No. 4487/1998, filed by the management / employer, is dismissed. Rule therein is discharged. However, it is made clear that nothing observed herein above, would be construed on the merits of the matter concerning termination of an employee on the ground of misconduct and the proceedings thereof would be adjudicated upon on its own merits. ( 10 ) (iii) In the circumstances of the case, there shall be no order as to costs. ( S.V. GANGAPURWALA ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/wp1498etc