Bombay High Court
Smt.Aasawari W/O Suresh Kelkar vs State Of Maharashtra & 2 Others on 9 March, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 2096 OF 2000.
Smt. Aasawari w/o. Suresh Kelkar
Aged about 56 years, occ- Retired,
r/o. A-5, Patwardhan Apartment,
Sitabuldi, Nagpur. ....PETITIONER.
VERSUS
1. State of Maharashtra,
through its Secretary, Higher Technical
Education Department, Mantralaya,
Mumbai - 32.
2. The Director of Higher Education,
State of Maharashtra, Central
Building, Pune.
3. The Joint Director of Higher Education,
State of Maharashtra, old Morris College
Building, Civil Lines,
Nagpur.
4. The Administrative Officer (Grants)
(Higher Education), State of
Maharashtra, Nagpur Division Old
Morris Building, Nagpur. ....RESPONDENTS
.
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Mr. B.G. Kulkarni, Advocate for Petitioner.
Mr. P.S. Tembhare, Asstt. Govt. Pleader for Respondents.
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CORAM : B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED : MARCH 09, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
Heard Shri B.G. Kulkarni, learned counsel for the petitioner and
Shri P.S. Tembhare, learned A.G.P. for respondents.
2. Petitioner joined service as College Librarian on 12.07.1979. She
opted for voluntary retirement w.e.f. 31.12.1999. While in service, she had
improved her qualification and obtained post graduate degree i.e. Master of
Library Science.
3. After she tendered her request for voluntary retirement, on
30.08.1999 respondent no.4 wrote to her college (Janta Mahavidyalaya,
Chandrapur) and pointed out her fixation in the pay-scale of Rs. 2200-4000
w.e.f. 01.11.1992, was cancelled on 17.06.1997 and as such she was
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directed to be fixed in the pay-scale of Rs. 2000-3500. With the result excess
amount received by her needed to be recovered. This excess amount is also
calculated at Rs. 56,140/- by her employer College.
4. Shri Kulkarni, learned counsel for petitioner submits that
petitioner was not aware of alleged wrong fixation or any order dated
17.06.1997, rejecting it. On the contrary, the fitment in scale of Rs. 2200-
4000 was already approved and accordingly amount was released to her.
Hence, petitioner approached this Court and on 06.07.2000, recovery of
alleged excess amount paid to her was stayed. Inspite of this, while paying
her retiremental dues, that amount came to be adjusted. A contempt was
filed, but, later on it was disposed of. He places reliance upon judgment of
Hon'ble Supreme Court reported at (2014) 8 SCC 883 State of Punjab v.
Rafiq Masih, (Whitewasher), to urge that such a recovery on the eve of
retirement in any case could not have been done.
5. He points out that though no return as such has been filed, while
opposing admission of writ petition submissions were tendered and as per
those submissions, only defence, is as petitioner was not holding M.Lib.
Qualification, while joining employment, she could not have been treated as
a member of teaching staff and hence, pay scale of Rs. 2200-4000 could not
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have been conferred upon her. He submits that provisions of Maharashtra
Universities Act treat librarian as a teacher only.
6. Learned A.G.P. is relying upon reply affidavit. He submits that
error committed by the employer in extending wrong pay scale was already
corrected and recovery could have been made smoothly in proper monthly
installments, had petitioner continued in the employment. As she opted to
go out, while preparing the case for retirement, error was discovered and
recovery was ordered.
7. During hearing, learned counsel for petitioner stated that this
Court has decided Writ Petition No.1012/2000 on 13th/14th February,
2017. According to him, the issue of finding out proper pay scale was
involved in that matter. There a communication issued by UGC on
16.01.1987 granting relaxation from educational qualification has been
looked into. According to him, in that petition the petitioner - college
librarian was directed to be extended pay scale of Rs. 700-1600 from
01.04.1980. He is therefore, seeking time to place appropriate additional
affidavit on record.
8. Learned A.G.P. opposes any adjournment. According to him, the
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recovery is already effected and orders pointing out error were passed on
17.06.1997, hence, after so many years such contentions cannot now be
allowed to be raised. There is nothing before us to show that order dated
17.06.1997 denying pay scale of Rs. 2200-4000 to petitioner was
communicated to her. Similarly, if after 18.04.1984, UGC has relaxed
qualifications for college librarian and permitted pay scale of Rs. 700-1600
to be conferred upon all, that fact could have been and should have been
pointed out by respondents. Respondents have filed their reply affidavit on
10.10.2000, but, this relaxation or subsequent events thereafter are not
pointed out. In this situation, if we permit petitioner to amend the petition,
it is apparent that again respondents would be required to delve into old
records, find out proper facts and thereafter file a return. The matter
thereafter will be required to be heard again. We find that though matters
has been on final hearing board since long, it was not taken up as the court
remained busy in other work.
9. Interest of justice, therefore, can be met with by granting
petitioner leave to submit appropriate representation, pointing out all
subsequent events after issuance of government resolution dated
18.04.1984, till her superannuation and making appropriate prayers. If such
representation is submitted by her to respondent no.3 Joint Director within a
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period of three weeks from today, respondent no.3 shall consider it
independently on its own merits within next ten weeks. If necessary
opportunity of hearing shall be extended to petitioner/her representative.
10. If the recovery effected from petitioner is found unsustainable,
that amount along with interest calculated at P.F. rate upon it shall be
refunded to her within next three months. Acceptance of that amount shall
not preclude the petitioner from challenging the exercise undertaken, if any
of her grievances survives thereafter.
11. It is apparent that after act of extending pay scale of Rs.2200-4000
to petitioner is found proper, her last pay drawn and therefore, pension may
also be required to be revised. That exercise shall be completed
simultaneously within the period stipulated for refunding the amount.
12. With these directions, we partly allow the Writ Petition. Rule is
made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
Rgd.
