1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3596 OF 2009 Samadhan s/o. Daulat Patil Age 58 yers, Occ. Retired R/o. Near Shri Swami Samartha Kendra Bodwad Road, N.H.6, Muktai Nagar, Talka Muktai Nagar District Jalgaon. .. petitioners Versus 1] The State of Maharashtra through Secretary, Ministry of Higher and Technical Education, And Ministry of Education And Ministry of Municipal Administration Mantralaya, Mumbai-32. 2] The Zilla Parishad, Jalgaon through its Chief Executive Officer, Zilla Parishad, Jalgaon. 3] The Education Officer(Primary) Zilla Parishad, Jalgaon District Jalgaon. 4] The Block Education Officer Panchayat Samiti, Muktainagar District Jalgaon. 2 5] The Accounts Officer (II) Zilla Parishad, Jalgaon Dist. Jalgaon. ..Respondents. --- Mr. A.P. Bhandari, Advocate holding for Mr. S.V. Gangapurwala, Advocate for the petitioner Mr. K.G. Patil, AGP Advocate for respondent No..1 Mr. B.S. Mundhe, Advocate for respondent Nos. 2 to 4. CORAM : B.R. GAVAI & N.D.DESHPANDE,JJ. DATE : 26th August, 2009. ORAL ORDER :- 1] Rule. Rule made returnable forthwith. Heard by consent. 2] By way of present petition, the petitioner challenges the communication dated 26th February, 2009, vide which the petitioner has been informed that unless he gives consent for adjusting the amount paid to him, in excess than the one to which he was entitled, from his pensionary benefits, the pension claim cannot be processed further. 3] The petitioner was appointed as Assistant Teacher in the year 1975. The petitioner acquired higher qualification in the year 1995 i.e. “Hindi Shikshak Upadhi Pariksha” held by the University of Bombay. Accordingly, vide communication dated 8th September, 1995, the respondent No.2, Zilla Parishad granted higher pay scale to the petitioner as qualified graduate teacher in the pay scale of Rs. 1400-40-1600-2300 P.D. 60-2600. The 3 petitioner has, thereafter been continuously working as trained graduate teacher. However, it appears that at the verge of his retirement in the year 2009, there was some correspondence, between the Accounts Officer and the Block Development Officer, as to whether the petitioner was entitled to get higher pay scale since he has not possessed B.A. Degree. Ultimately, vide the impugned order dated 26th February,2009, the petitioner has been directed to give consent as aforesaid. 4] We find that the petition deserves to be allowed on the short ground that since even according to the respondent, higher pay scale was given to the petitioner on erroneous fixation of salary, for which the petitioner cannot be faulted with, we find that such recovery is not permissible in law. 8] Admittedly, the petitioner has discharged the higher responsibilities for which the appointment was made. In this regard, we may find support from the judgment of the Apex Court in the case of “ Babulal Jain Vs. State of M.P. “ reported in 2007 AIR SCW 2756. 9] The petition is,therefore, allowed in terms of prayer clause (C)and (D). It is directed that the pensionary benefits shall be made applicable to the petitioner within two months from today. [N.D. DESHPANDE, J.] [B.R. GAVAI,J.] Grt/- 4