Bombay High Court
Shubha S.Vithalkar vs Head Mistress, Mulinche Samartha ... on 29 May, 2017
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINALCIVIL JURISDICTION
WRIT PETITION NO.2981 OF 1999
Smt. Sulbha Sharad Vithalkar,
Adult, Occu: Service, Residing
at Flat No.3/A, Rajhans Deep
Housing Society Ltd., Dattawadi,
Old Bombay-Pune Road, Kalwa,
District Thane. ..Petitioner.
V/s.
1. Head Mistress, Mulinche Samartha
Vidyalaya, affiliated to Samartha
Shikshan Mandal and Charity Trust,
registered under the Bombay Public
Trust Act, 1950, Vidyanagari Marg,
Kalina, Santacruz, Mumbai-400 098.
2. Education Inspector, Western Region,
Jogeshwari, Mumbai-400 060.
3. Secretary to the Government of
Maharashtra in the Education Dept.
Mantralaya, Mumbai-400 032. ..Respondents.
Mr.K.K. Malpathak for the Petitioner.
Mr.Abhay L. Patki, AGP for the State-Respondent Nos.2 & 3.
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CORAM : ANOOP V. MOHTA AND
M.S. KARNIK, JJ.
DATE : 29 MAY 2017
ORAL JUDGMENT (PER ANOOP V. MOHTA, J.)
The matter is called out for final hearing as the matter is
specifically listed for final hearing. Heard the learned counsel for the
parties.
2. The Petitioner has challenged the office order No. EI/
MW/SEC/S44/11805 dated 24 May, 1999 issued by Respondent
No.2 thereby directing recovery of the salary paid to the Petitioner
for the last several years, though the appointment was approved by
Respondent No.2 itself 14 years ago. There was no case of
concealment of any fact or misrepresentation at the time of her
appointment as Assistant Teacher with Respondent No.1. There was
no serious issue raised till the impugned order was passed by
Respondent No.2 and even by Respondent No.1 about the eligibility
and / or qualification of the Petitioner for the post in question.
Against the impugned order of recovery, the Petitioner filed the
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present writ petition. This Court on 22 December, 1999, after
hearing the parties has passed the following order and admitted the
petition:-
" Rule. Respondents waive service.
2. The Petitioner was appointed as a teacher in
Respondent No.1's school in 1985. At the time of joining
the School, she possessed qualification of B.A. and degree
of Sangit Visharad from the Gandharva University. Later
on she passed M.A. in 1986. She was getting pay scale of
Rs.365-760 which was revised to Rs.1400-2600 by reason
of the 4th Pay Commission. Nearly 12 years after the
Petitioner's appointment, an objection was sought to be
raised for the first time that the Petitioner should have
been treated as untrained teacher due to the fact that she
did not possess B.Ed. degree and the degree of Sangit
Visharad of Gandharva University was not recognized by
the State Government at the relevant time. On that basis,
recovery has been ordered against the Petitioner with
retrospective effect at the rate of Rs.2500/- per month and
three instalments have already been recovered.
3. According to the Petitioner, she having completed 12
years service, is entitled to higher pay scale of Rs.1640-
2900 pursuant to the 4th Pay Commission
Recommendations. She also contends the degree of Sangit
Visharad was recognized as equivalent to B.Ed. degree and
her appointment was made on that basis and was also
approved by the Department. She is retiring in April,
2000.
4. Under the circumstances, we pass the following
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interim order :
A. Pending the hearing and final disposal of this
Petition, effect and implementation of the impugned
order No.EI/MW/SEC/S44/11805 dated 24/5/1999
of the Respondent No.2 and the impugned order
No.36/99/2000 dated 22/7/1999 of the Respondent
No.1 directing deduction of Rs.2500/- per month
from the Petitioner's salary from August, 1999
onwards, is stayed.
B. On retirement of the Petitioner, her retiremental
benefits shall be released on the basis that she was
entitled to the pay scale of 1400-2600.
C. As and when the State government decides to pay
the benefits of the 5th Pay Commission to the School
Teachers, the same shall be extended to the Petitioner
also.
Court Stenographer is permitted to issue an ordinary copy
of this order to the parties. Parties to act on an ordinary
copy of this order duly authenticated by the Court
Associate."
3. There is nothing on record to show that the concerned
Respondents have challenged the order passed by this Court on 22
December, 1999. In the result, the Petitioner has been taking the
benefits, including the salary as per the basic appointment letter
entitlement. As stated, the Petitioner has retired in April, 2000.
The statement is made that she has been getting all the retirement
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benefits pursuant to the order passed by this Court as recorded /
noted above. After hearing the parties and after going through the
averments as well as the documents placed on record, we have also
noted that there is no case of any suppression of fact and / or
misrepresentation of fact and / or fraud. Such recovery after more
than 14 years of basic appointment, in our view, is also not
sustainable specifically in the background that she has been working
on the post without any interruption based upon the initial sanction
and approval by the said Respondents. Therefore, the entitlement
benefits of the Petitioner, in our view, ought not to have been
disturbed in such a fashion after more than 14 years of the
Petitioner's first appointment. The observations made by the
Division Bench while passing the interim order dated 22 December,
1999 has remained intact till this date. This in our view is an
additional factor to confirm the same. There is no case even
otherwise to disturb the entitlement of the Petitioner in view of the
observations made above, especially after the interim order as passed
more than 18 years back.
4. Therefore, it is made clear that the Petitioner's future
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entitlement atleast the retirement entitlements is to be calculated in
view of the order already passed on 22 December, 1999.
5. Therefore, taking overall view of the matter, the present
petition is allowed in terms of prayer clauses (i) and (ii) of the main
petition and clauses A and B of the interim order dated 22
December, 1999, which read as under:-
(i) That this Hon'ble High Court be pleased to issue a writ of
mandamus or a writ order or direction in the nature of
mandamus, quashing and setting aside the impugned order
dated 24/5/1999 bearing No.EI/MW/SEC/S44/11805
(Exh.D) issued by the Respondent No.2 directing deduction of
salary allegedly paid in excess to the Petitioner;
(ii) That this Hon'ble High Court be pleased to issue a writ of
mandamus or a writ order or direction in the nature of
mandamus, quashing and setting aside the impugned order
dated 22/07/1999 bearing No.36/99-2000 (Exh.H colly)
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issued by the Respondent No.1 pursuant to the impugned
order dated 24/5/1999 of the Respondent No.2 (Exh-B)
resolving deduction of salary at Rs.2500/- per month from
August, 1999 onwards and further fixing her pay-scale as un-
trained teacher on 335-680 (old);
A. Pending the hearing and final disposal of this Petition, effect
and implementation of the impugned order No.EI/MW/
SEC/S44/11805 dated 24/5/1999 of the Respondent No.2 and
the impugned order No.36/99/2000 dated 22/7/1999 of the
Respondent No.1 directing deduction of Rs.2500/- per month
from the Petitioner's salary from August, 1999 onwards, is
stayed.
B. On retirement of the Petitioner, her retiremental benefits shall
be released on the basis that she was entitled to the pay scale of
1400-2600.
5. Rule is made absolute in the above terms. No costs.
(M.S.KARNIK, J.) (ANOOP V. MOHTA, J.)
