-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1180 OF 1994 Pradip Raghunath Bhirud ) residing at 2, Ramniwas, Kolsewadi, Near Durga Mandir, ) Kalyan (East) 421 306 )...Petitioner versus 1. Gramin Shikshan Sanstha, ) through its Secretary, having its office at Majiwade, ) Thane-400 601. ) 2. The Headmistress, ) English High School and Junior College, Majiwade, ) Thane-400 601 ) 3. The Senior Auditor, ) Education Department, District Thane ) Thane (E) – 400 602 ) 4. The State of Maharashtra ) through its Department of Education and Employment, ) Mantralaya Annexe, Bombay-400 032 )..Respondents Mr. N.V. Bandiwadekar for the petitioner. Mr. R.S. Apte, Senior Advocate, for respondent Nos. 1 and 2. Mr. V.S. Gokhale, AGP for respondent Nos. 3 and 4. CORAM: P.B. MAJMUDAR & R.M. SAVANT, JJ. DATE: JUNE 07, 2010. -2- ORAL JUDGMENT: (Per R.M. SAVANT, J.) In this petition filed under Article 226 of the Constitution of India, the petitioner takes exception to the orders dated 13th September, 1993 and 2nd February, 1994 passed by the Education Officer and the Headmistress respectively thereby directing reduction of pay scale and ordering recovery of the amount paid to the petitioner. 2. Shorn of unnecessary details, the facts which are necessary to be cited for adjudication of the above petition are stated thus:- 3. The petitioner is M.Com. B.P. Ed. and was appointed as an Assistant Teacher in the school run by respondent No.1-Sanstha. In June, 1993, the petitioner completed his B.Ed. The petitioner, since his appointment on 18th June, 1994, has been continuously working as such in the said post. It is the claim of the petitioner that he has been teaching physical education and commercial subjects. The petitioner was initially placed in the pay scale of Rs. 600-1030 from 1-1-1996 which was subsequently raised to Rs. 2000-3500 as per the 4th Pay Commission. This was according to the pay scale applicable to the employees having graduation with B.Ed. The petitioner was paid the said pay scale upto 1993, It appears that on 2nd February, 1994, the petitioner was issued a letter that from the wages of April, 1994 onwards, a deduction would -3- be made so as to recover the so-called excess wages paid to him since June, 1984 onwards. It was also mentioned that the petitioner would be placed on a lower scale. It appears that the said letter was issued by the Headmistress, pursuant to the letter dated 13th September, 1993 issued by the Senior Auditor, respondent No.2. The petitioner made a representation to the Dy. Director vide his letter dated 8th February, 1994. As indicated above, it is the aforesaid letters/orders dated 13th September, 1993 and 2nd February, 1994 which are impugned in this petition. 4. The principal ground of challenge to the said orders is that the lowering down of the petitioner’s pay scale and the recovery sought to be made vide aforesaid two orders has been sought to be made without hearing the petitioner and in breach of the principles of natural justice. The learned counsel for the petitioner would contend that since the said two orders have penal consequences for the petitioner and seek to take away the right of the petitioner to be paid at a particular scale, the petitioner ought to have been heard in the matter. 5. In so far as the said aspect is concerned, the learned Senior Counsel appearing for respondent Nos. 1 and 2 and the learned Assistant Government Pleader appearing for the Education Officer do not dispute the position that no hearing has been granted to the petitioner prior to the issuance of the said two -4- orders. Since, in our view, the said two orders have got serious penal consequences for the petitioner inasmuch as the scale to which the petitioner was entitled to and was in fact receiving was withdrawn and the recovery was sought to be made, in our view, a modicum of procedure was required to be followed by the authorities by hearing the petitioner and thereafter passing appropriate orders in accordance with law. That having not been done, we have no hesitation in setting aside the impugned orders dated 13th September, 1993 and 2nd February, 1994 and directing respondent no.3 to hear the petitioner and thereafter pass appropriate order in accordance with law in respect of the pay scale to which the petitioner is entitled to as M.Com. B.P. Ed. and from which particular year. In the event respondent No.3 decides the issue against the petitioner, we direct that no recovery is to be effected for a period of eight weeks from the date of communication of the said order so as to enable the petitioner to file appropriate proceedings to challenge the said order which is adverse to him. 6. In the light of the view we have taken, we do not feel it necessary to examine the aspect as to whether B.P. Ed. qualification is equivalent to B. Ed. qualification, which is one of the submissions made on behalf of the petitioner, relying upon the various governmental orders which have been appended to the writ petition. The contentions of the parties in that respect are explicitly kept open. Rule is accordingly made absolute to the aforesaid extent. Parties to bear -5- their respective costs. Since the petition is pending from the year 1994, we direct the petitioner to appear before Respondent No.3 on 28th June, 2010 at 11.00 a.m. Respondent No.3 thereafter to fix the schedule according to his convenience and hear all the parties concerned and pass final orders within two months from 28th June, 2010. Needless to say that the contentions of the parties are explicitly kept open. P. B. MAJMUDAR, J. R.M. SAVANT, J.