1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 348 OF 2010. Santosh Kumar Baliramsingh Gaheewar -: versus :- The Additional (Divisional) Comm. And others. WRIT PETITION No. 358 OF 2010. Gajanansingh Balkishansingh Gour -: versus :- The Additional (Divisional) Comm. And others. 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, J. DATED : MARCH 30, 2010. Heard Shri I.N. Choudhari, learned counsel for respective petitioners who have retired from services after attaining the age of superannuation and learned A.G.P. for respondent no.1. The employer of petitioners namely respondent nos. 2, 3 and 4 have chosen not to appear though they are served with notice of final hearing. On 15.03.2010 after noticing that they are not appearing, one opportunity to appear and contest has been extended to them. Today again there is no appearance for them. Short grievance made by learned for petitioners is though petitioners have not obtained B.Ed. Qualification within a period of 5 years after graduate pay scale was extended to them, the same was for no fault on their part and had there been an opportunity to show cause extended, petitioners would have pointed out those facts to their employer. Without extending such opportunity the orders of recovery for alleged excess amount on account of such not obtaining training 2 qualification within 5 years have been passed, that too after retirement. He points out that petitioners were expected to obtain training qualification in the year 1992. Both of them were permitted to work on post with higher pay scale till their superannuation in the year 2004 and 2003 respectively. When this grievance was raised in appeal, the Appellate Authority has also overlooked the provisions of Rule 134 of the Maharashtra Civil Services (Pension) Rules, and have also not noticed that such recovery in lumpsum is not possible from gratuity amount or other retirement dues. He argues that till date the amount of gratuity and other benefits are not finalized and given to petitioners. He has placed reliance upon the judgment of Division Bench of this Court reported at 2004 [1] Mh.L.J. 947 (Narsingh Nagorao Hippargekar .vrs. State of Maharashtra and others) to urge that as petitioners have worked on post with higher pay scale, recovery in these circumstances is not possible. Learned A.G.P. appearing for respondent no.1 states that respondent no.1 has decided the appeal preferred before it in accordance with law. It is further pointed out that the employer was advised to determine the mode and manner of recovery from respective petitioners and the further report in that respect is awaited. According to the learned A.G.P. the judgment of Hon'ble Division bench relied upon is not applicable in the present facts, as petitioners were all the while aware that they have to obtain training qualification within 5 years. 3 Knowledge to petitioners that they have to obtain training qualification within 5 years is not in dispute. The fact that they continued in service even after expiry of said period of 5 years on higher post and did not obtain that qualification till their superannuation, is also not in dispute. Petitioners have not pointed out any efforts made by them to secure the qualification while in service. The relevant Government Resolution under which the higher pay scale was given to them is not placed on record, but Shri Choudhari, learned counsel after going through it has stated that the Government Resolution does not contemplate any contingency in which the employee can make a grievance that for just and sufficient reasons he could not procure the training qualification. As the government resolution and policy does not contemplate any exemption from such requirement, it is clear that not acquiring the training qualification within specified period of 5 years cannot be condoned and hence there is no scope for examining the genuineness of the reasons put forth by the petitioners for not acquiring such qualification within said period. Perusal of the judgment of Hon'ble Division Bench of this Court (supra) shows that the matter there has been considered in the light of the provisions of Clause 61.1 of the Secondary School Code and after specifically noting that it was prior in period and hence provisions of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 are not applicable, the three employees were promoted as Headmaster there did not 4 possess necessary experience after obtaining training qualification and that their posting and promotion as headmaster was approved by the Education Department. In view of this, in paragraph no.6 the Hon'ble Division Bench holds that in peculiar facts though the promotion was illegal and void, the recovery was not warranted. In present facts, petitioners were all the while aware that they have to obtain training qualification within 5 years and they have not questioned the said requirement at any point of time. They have also not moved the employer or the department seeking exemption from that requirement while in service. Hence, the Division Bench ruling mentioned above is not applicable. The petitioners as also their employer are guilty of the latches and negligence in the matter. The respondents ought to have taken appropriate steps to reduce their pay scales after noticing that within 5 years the training qualification was not obtained. Respondent – employer admittedly has not taken any steps. Respondent no.3 Block Education Officer or respondent no.4 Education Officer (Primary) have also not taken any steps in that direction. The employer respondent no.2 and officers respondent no.3 and 4 have chosen not to appear though they are served in the matter. In this situation I find nothing wrong with the appreciation of respondent no.1 Authority. The order of recovery therefore needs to be maintained. However, it is apparent that the recovery cannot be permitted to be effected in lumpsum and in accordance with law the 5 recovery has to be in suitable installments. Though suitable installments ought to have been worked out by respondents by now, the reply affidavit filed by respondent no.1 in paragraph no.2 shows that on 16.08.2005 itself the Appellate Authority has ordered respondent no.1 to work out these modalities. Further action, if taken by respondent no.2 in that direction is not before this Court and it appears that same was never communicated to respondent no.1 also. In this situation, the grievance made by Shri Choudhari, learned counsel about recovery in one lumpsum only needs to be accepted. Respondent nos. 2, 3 and 4 are directed to hear the petitioners and to work out suitable installments in which the amount paid in excess can be recovered from the terminal benefits or monthly pension of respective petitioners. The said exercise be completed as early as possible and in any case by 30.05.2010. After completion of that exercise and as per its outcome, the amount of pension and gratuity due and payable to petitioners shall be released by their employer. The petitions are thus partly allowed. Respondent no.2 shall pay cost of Rs. 2000/- each to petitioners. Rest of the impugned order is maintained as it is. Rule accordingly. JUDGE Rgd.