1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 362 OF 2011 (Prakashchandra Hiralalji Pathak vs. State of Maharashtra & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI & P.D. KODE, JJ. JUNE 07, 2011. Heard Shri Mishra, learned counsel for the petitioner and Shri Fulzele, learned Assistant Government Pleader for Respondents No. 1 to 3. Respondents No. 4 & 5 have chosen not to appear, though they are served with notice for final disposal. Shri Mishra, learned counsel has contended that initially present petitioner was sanctioned Selection Grade scale while revising his wages as per recommendations of 4th Pay Commission with effect from 11.03.2006, he was placed in Selection Grade scale of Rs.3700-5700. This date was subsequently modified by the Deputy Registrar (College), Amravati University, Amravati, on 28.10.2004 and the grant of Selection Grade scale was made effective from 01.01.1996. In view of this position, the recovery as proposed by the impugned order dated 29.06.2010 at Annexure M with the petition is unwarranted. He has pointed out that the said order overlooks the correction effected on 2 28.10.2004 and hence finds the petitioner not in pay- scale of Rs.3700-5700 on 01.01.1996. He also invites attention to a detailed representation dated 10.11.2010 made by the petitioner to Respondent No. 3 – Joint Director, giving all these details. According to him, in these facts, the controversy is squarely covered by the judgment of this Court dated 08.04.2011 in Writ Petition No. 3324 of 2010 where in similar circumstances the recovery was quashed and set aside. Shri Fulzele, learned AGP has urged that the matter needs to be placed back before Respondent No. 3 for fresh consideration to ascertain facts. According to him, after the facts are ascertained, the law as applied by the Division Bench in its judgment dated 08.04.2011 can be looked into. After hearing respective counsel, we find that the impugned order proceeds on the assumption that the petitioner has been given Selection Grade on 11.01.1996 and, therefore, was not eligible to fixation at Rs.14940 on 01.01.2006. The above mentioned communication of Deputy Registrar (College), Amravati University, Amravati dated 28.10.2004 is not specifically mentioned in the petition though it has been asserted on affidavit that the date of granting Selection Grade was specifically modified as 01.01.1996. During arguments, the petitioner has attempted to demonstrate that he completed five years of service in Selection Grade on 01.01.2001 and, therefore, was eligible to fixation at 3 Rs.14940 on 01.01.2001. Thus, according to him, the said fixation at Rs.14940 on 01.01.2001 is legal and no recovery can be ordered. As already noted, the communication dated 28.10.2004 is not on record. Similarly, the impugned order does not mention completion of five years by the petitioner in Selection Grade either on 01.01.2001 or then on 11.01.2001. It also does not show that the fixation at Rs.14940 was in 2001. It only mentions that the fixation on 01.01.2006 is incorrect. In view of this position, we find it appropriate to direct Respondent No. 3 to re-apply its mind to the entire controversy at the earliest. Filing of petition could have been avoided had representation made by the petitioner on 10.11.2010 been considered by the said authority but unfortunately that has not been done. We, therefore, quash and set aside the impugned order dated 29.06.2010 and further consequential orders including order dated 07.08.2010. Respondent No. 3 is directed to give the petitioner an opportunity of hearing in the light of his representation dated 10.11.2010 within a period of two weeks from today and pass fresh orders in the matter at the earliest and in any case within a further period of four weeks thereafter. The petitioner has already retired on superannuation on 30th June 2010. All his retiral benefits including pension are still to be released. If the 4 decision as mentioned above is not taken within the said period, the respondents shall pay to the petitioner interest @ 12% on the entire amount to which the petitioner is found entitled thereafter. Writ Petition is partly allowed. No costs. JUDGE JUDGE *GS.