1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7596 OF 2008 Laxman Dagadu Chaudhari Age 59 years, Occ. Retired R/o. Dhsnur via Nimbhora Taluka Raver, Dist. Jalgaon. .. petitioners Versus 1] The State of Maharashtra through Secretary, Department of Education, 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 Accounts Officer (II) Zilla Parishad, Jalgaon Dist. Jalgaon. .. Respondent. --- Mr. Girish Rane, Advocate for the petitioners Mr. S.K. Tambe, AGP 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. 2 ORAL ORDER :- 1] Rule. Rule made returnable forthwith. Heard by consent. 2] By way of present petition, the petitioner challenges the order dated 10th October, 2008, vide which the recovery of an amount of Rs. 1,26,714 is directed to be made from the pensionary benefits payable to the petitioner, as mentioned in the order dated 10/10/2007. The petitioner has also sought a direction for holding that the petitioner is entitled to higher pay scale of Rs. 6500-200-10500 since 17th December 2000 and further direction to the respondent to pay the pension based upon higher pay scale of Rs. 6500-200-10500. 3] The learned counsel for the petitioner, for the present, does not press for prayer clause (C) and seeks liberty to make a representation to the respondent Zilla Parishad on the ground that similarly circumstanced persons have been granted the higher pay scale. The petition, therefore, stands withdrawn in so far as prayer clause (C ) with liberty as prayed for. 4] However, any representation made by the petitioner with respect to prayer clause (C) , shall be considered by the Zilla Parishad on its on merits. In the event the petitioner is aggrieved by any order that may be passed on his representation, he would be at further liberty to approach this court. 3 5] We are, therefore, concerned with the question as to whether the recovery which is directed vide order dated 10th October, 2007 is permissible. The petitioner was initially appointed as Assistant Teacher on 6/9/1973, as he was having qualification of S.S.C.,D.Ed. It appears that subsequently, the petitioner acquired the qualification of Hindi Shikshan Parangat, conducted by the Central Institute of Hindi, Agra. The respondent No.2 Zilla Parishad, vide order dated 12th October, 1988, therefore, passed an order stating therein that since the petitioner had become a qualified trained graduate teacher, he should be awarded higher pay scale of Rs. 365-15-570-20-660 EB 20-760. However, it appears on 10th January, 2007, the Accounts Officer of the respondent No.2 addressed a communication to the Block Development Officer, Raver, stating therein that since the petitioner has not acquired the qualification of B.Ed., he was not entitled to the higher pay scale. 6] Shri Rane, learned counsel for the petitioner submits that though persons similarly circumstanced as that of the petitioner, namely, Shri Suresh Rangu Bhirud and Sunanda Bhirud, have been granted higher pay scale than the one granted to the petitioner, recovery has been directed against the petitioner since the petitioner refused to comply with the illegal demands made by the authorities of the respondent No.2. 7] We find that it is not necessary for us to go into the allegations made by the petitioner in the petition. We find that the petition deserves to be allowed on the short ground that since even according to the respondent, 4 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 reported in 2007 AIR SCW 2756 “Babulal Jain Vs. State of M.P. And others”. 9] The petition is,therefore, allowed in terms of prayer clause (A)and (B). It is made clear that the repayment shall be made to the petitioner within a period of 8 weeks from today. However, the rate of instead of 12% p.a. Would be at the rate of 6% p.a. Rule made absolute in above terms. There shall be no order as to costs. [N.D. DESHPANDE, J.] [B.R. GAVAI,J.] Grt/-