1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3176 OF 2009 Narayanrao S/o.Vyankatrao Patwari, Age­71 years, Occu­Retired, R/o.Plot No.1, Hareshwarnagar, Jalgaon PETITIONER VERSUS 1. The State of Maharashtra, Through : Chief Secretary, Higher Education Department, Mantralaya, Mumbai 2. The Joint Director, Higher Education Department, Jalgaon, Tq. And Dist. Jalgaon 3. The Additional District Treasury Officer, Jalgaon, Tq. And Dist. Jalgaon 4. Accountant General, Mumbai. RESPONDENTS Mr.C.R.Bharaswadkar, learned counsel for petitioner. Mr.V.B.Ghatge, learned AGP for respondent no.1 to 3 (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 07/09/2009 ORAL JUDGMENT : (Per P.V.Hardas, J.) 2 1. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, this petition is heard finally at the stage of admission. 2. This is a petition at the instance of petitioner who prays for issuance of a writ for quashing and setting aside notice dated 28/01/2009 issued by respondent no.3 Additional District Treasury Officer, Jalgaon. The petitioner also prays for issuance of a writ of certiorari for quashing and setting aside the Government Resolutions dated 15/11/1999 and 05/01/2000. The petitioner also prays for issuance of a writ of mandamus directing the respondents not to implement and give effect to the operation of Government resolution dated 15/11/1999 and 05/01/2000 and the show cause notice. The petitioner prays for certain ad interim reliefs. 3. According to the petitioner, petitioner was serving as Assistant Professor in the Nahata College, at Bhusawal. The petitioner retired on 31/05/1997 on attaining the age of superannuation and came to be conferred with the retirement benefits in the year 1997 itself. It appears that pursuant to the 5th pay commission and certain directions issued by this Court, certain difference in the pay scale and in respect of amount of gratuity, commutation value of the pension was re­fixed and came to be paid to the petitioner. It appears that thereafter a show cause notice came to be issued to the petitioner dated 21/01/2009 calling upon the petitioner to show cause, failing which an amount of Rs.1,02,080/­ would be recovered 3 from the petitioner in monthly equal installments of Rs.7,000/­ each. According to the petitioner, the petitioner is not in receipt of the said show cause notice, but has very adroitly managed to obtain a copy of the said show cause notice which is annexed to the petition at Exh.A. According to the petitioner, though he has not been served with a copy of the show cause notice, the respondents have started deductions of Rs.7,000/­ per month which impelled the petitioner to file the present petition. The Learned Vacation Judge of this Court accordingly granted ad interim relief in terms of prayer clause “G” by which further recovery pursuant to the said show cause notice has been stayed. 4. On notice being issued to the respondents, the respondents have filed their affidavit in reply. In the affidavit in reply, copy of the acknowledgment is not tendered which would indicate that the petitioner is in receipt of the said show cause notice. There is no statement in the affidavit in reply that the petitioner has been served with the copy of show cause notice. In the light of the fact that the petitioner has not been served with a copy of the show cause notice, according to us, the respondents could not have proceeded with the deductions pursuant to the show cause notice unless the said show cause notice is decided in accordance with Law. If the deductions are allowed to be continued pending the decision of the show cause notice, an opportunity to show cause which is afforded to the petitioner by virtue of the said show cause notice would be rendered futile. In the light of that therefore, we are inclined to allow this 4 petition to the limited extent of directing respondents to refund the amount which has been deducted from the bank account of the petitioner and not to effect further recovery till the show cause notice is decided in accordance with Law. All other challenges raised in the petition would be available to the petitioner to be raised in subsequent petition if the order passed by the respondents pursuant to the show cause notice is adverse to the petitioner and the petitioner is required to file a petition in this court. 5. Accordingly this petition is allowed. The respondents are directed to refund an amount of Rs.14,000/­ to the petitioner which has been deducted from the account of the petitioner within 15 days from today, failing which the aforesaid amount would carry interest @ Rs.8% p.a. from the date of deduction till the amount is actually received by the petitioner. We further direct the respondents not to effect any further deductions till the proceedings of the show cause notice are decided in accordance with Law i.e. after an opportunity is afforded to the petitioner of showing cause against the proposed deduction. 6. Rule is thus made absolute on the above terms with the liberty stated herein above with no order as to costs. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/SEP 2009/wp3176­09