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Judgment
,,,,
Bharati H. Dangre,J",,,,
1 Rule. Rule returnable forthwith.,,,,
2 Heard by consent.,,,,
3 The present group of 9 petitions poses a challenge to the impugned action of respondent in seeking to recover an amount from the petitioners on the,,,,
basis that it was erroneously paid. The petitioners are aggrieved by the action of reÂfixing their pay scale, including the Grade Pay, which was",,,,
already fixed from 1st January 2006 in the revised scale as the said action is causing monetary loss to the petitioners and adversely affecting their,,,,
service conditions.,,,,
4 The petitioners are the appointees in the distinct D.Ed colleges, and all the petitioners belong to the backward class. The petitioners possess the",,,,
requisite qualification viz. a post graduate degree and a Masters Degree in Education.,,,,
The petitioners were appointed as Assistant Teachers on distinct dates being qualified to be appointed in the Junior Colleges of Education, which",,,,
were in receipt of grantÂinÂaid from the State Government. The dates of appointment of the petitioners are distinct. However, all the petitioners",,,,
are appointed prior to 29th December 1998. In the group of petitions, the petitioner  Smt.Pallavi Mohan Angolkar in Writ Petition No.3725 of 2017",,,,
and petitioner â€" Smt.Neelima Sadashiv Pawar in WP 3717/17 have retired on attaining the age of superannuation. All other petitioners are in,,,,
service.,,,,
5 It is the specific case of the petitioners that they came to be appointed as Full Time Assistant Teachers in the respective junior colleges, and they",,,,
have rendered satisfactory services. According to the petitioners, all the Assistant Teachers teaching in Junior College of Education are governed by",,,,
provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short MEPS Act) and the Maharashtra",,,,
Employees of Private Schools Rules, 19891 (for short “MEPS Rulesâ€) and are receiving the pay scale as per the relevant Government",,,,
Resolution issued by the Education Department. According to the petitioners, they are granted exemption from acquiring the qualification as",,,,
prescribed under the NCTE Regulation since they were appointed prior to 29th December 1998, and it is the case of the petitioner that G.R dated 3rd",,,,
April 2003 carved out an exception in favour of such teachers.,,,,
It is the case of the petitioners that they were conferred with the revised pay scale as per recommendations of Sixth Pay Commission with effect,,,,
from 1/1/2006 and their pay was paid in the Pay Band of Rs.9300 â€" 34800 â€" G.P 4300. According to the petitioners, a class of Assistant",,,,
Teachers/lecturers working in D.Ed Colleges who were possessing Post Graduate qualifications, approached the Government with a request to award",,,,
them a different pay scale than that of graduate teachers since they were better qualified than the graduate teachers appointed prior to 1998.,,,,
The State Government acceded to the request and Department of Education in concurrence with the Finance Department, amended the notification",,,,
conferring the Sixth Pay Commission benefits on the teachers by inserting clause No.395ÂA in terms of G.R dated 13th August 2009. It is the,,,,
specific case of the petitioners that the pay scale of these petitioners, therefore, came to be revised from Rs.9300 â€" 34800 â€" GP 4300 to the pay",,,,
scale of Rs.9300 â€" 34800 â€" G.P 4600, and with the commensurating increase in the Grade Pay applicable to senior Grade (Rs.5400) (Selection",,,,
Grade Rs.5700). As per the petitioners, they were receiving the revised pay scale as per Sixth Pay Commission and the said benefit was extended to",,,,
them in the selection grade. However, all of a sudden, under the garb of correcting already fixed and stamped pay scale, the respondent no.4",,,,
erroneously reduced the pay scale by the impugned orders. The petitioners are, therefore, aggrieved by the action of the respondents reducing their",,,,
pay scale after a gap of more than 10 years by erroneously applying the Government Resolution of 3rd April 2003.,,,,
6 We have heard Advocate Shri N.V. Bandiwadekar, learned counsel for the petitioners, who invited our attention to the relevant Government",,,,
Resolutions and also to the impugned orders erroneously reducing the pay scale and refixing the pay scale. Shri Bandiwadekar would submit that the,,,,
act of the respondents is wholly erroneous as it fails to take into consideration the G.R dated 3rd April 2003 which prescribed the qualification and,,,,
eligibility in terms of The National Council for Teacher Education Act, 1993 (for short “NCTE Actâ€). According to Shri Bandiwadekar, the G.R",,,,
itself carved out an exception in favour of those Principals and Lecturers appointed prior to 29th December 1998 and for them, the directive was to",,,,
regularize their services in terms of MEPS (Conditions of service) Rules 1981. According to Shri Bandiwadekar, the impugned order which is based",,,,
on the reasoning that the petitioners do not possess the requisite qualification and that they did not score the minimum percentage of marks as,,,,
prescribed in the Annexure appended to the G.R dated 3rd April 2003, is completely erroneous. He would also submit that after a lapse of a",,,,
considerable period, the said amount which have been already paid to the petitioners could not be sought to be recovered. He places reliance on the",,,,
judgment of the Hon'ble Apex Court in case of State of Punjab and Ors Vs. Rafiq Masiha in support of his submission that the recovery from,,,,
employees where the excess payment has been made for period in case of five years has been held to be impermissible by the Hon'ble Apex Court.,,,,
He would, therefore, pray for quashing and setting aside of the impugned orders, and would seek a direction to continue to pay the benefits in terms",,,,
of the Sixth Pay Commission, after holding that the petitioners are duly qualified and entitled for the commensurating pay scale applicable to the post.",,,,
7 In response to the petition, the respondent no.4 Senior Auditor â€" cum â€" Accountant, Mumbai has filed an affidavit. In the said affidavit, it is",,,,
categorically stated that though the petitioner held the requisite educational qualification to be appointed and to be regularized on the post of Assistant,,,,
Teacher, as set out in G.R. dated 3rd April 2003, the petitioner did not possess the requisite marks as required, to be eligible for conferment of",,,,
Benefits of Sixth (Revised) Pay Scale in terms of G.R dated 13th August 2009. The affidavit further states that G.R dated 22nd April 2009,,,,
categorically set out the pay scale applicable to a trained graduate teacher, and according to the respondent, the Government has categorically",,,,
differentiated the pay scale applicable to the trained teachers and to the post graduate teachers in the backdrop of the minimum qualification (degree),,,,
as well as scoring of marks as set out in the Government Resolution. According to the said affidavit, the petitioners who belong to S.C category were",,,,
required to obtain minimum 50% marks in post graduation i.e. M.A, and another thing which the petitioners were lacking was obtaining of M.Ed",,,,
qualification before June 2007 in terms of G.R. Dated 3rd April 2003. The affidavit then proceeds to state since the petitioners were lacking the,,,,
prescribed criterion, the petitioners are not eligible to derive a salary as per revised Sixth Pay Scale in terms of G.R. Dated 13th August 2009.",,,,
8 Learned AGP Mr.Dighe would vehemently submit that, in the present set of case, the issue is not of regularization of the services, as the services of",,,,
the petitioners have already been regularized. According to him, the approval orders issued in favour of the respective petitioners, clearly mention that",,,,
they are required to obtain requisite qualification before 2007, and now they cannot turn back and say that they were not aware of the required",,,,
conditions of enhancing their qualifications prior to June 2007. The learned AGP Shri Dighe would submit that prior to 1998, the criteria for",,,,
educational qualification was distinct. However, after the NCTE Act came into operation, it governed the field and on issuance of the notification by",,,,
the NCTE prescribing the minimum qualification, it is mandatory for the petitioners to obtain those requisite qualifications, and according to him, time",,,,
was granted to the petitioners to acquire the said qualification, which they failed to acquire making them ineligible for securing the benefits flowing",,,,
from the Sixth Pay Recommendations. Shri Dighe would place reliance on the judgment of the Hon'ble Apex Court in the case of High Court of,,,,
Punjab and Haryana Versus Jagdev Singh (Civil Appeal No.3500 of 2006) delivered on 29th July 2017, wherein the Hon'ble Apex Court has held that",,,,
the judgment in case of State of Punjab & Ors Vs.Rafiq Masih(White Washer) (supra), is not applicable to a case where the officer to whom the",,,,
payment was made in the first instance was clearly put on notice that any payment found to have been made in excess, would be required to be",,,,
Designation,"Existing scale of pay
and Special Pay, if any","Revised Pay
Structure
PAY BAND",GRADE PAY,
Principal
College
of
Education","7500Â12000
9125Â14075
(Senior Scale)","9300Â34800
15600Â39100","4800
5700",
Asstt.Teacher,5500Â9000,9300Â34800,4300,
Trained PG
Teacher","6500Â
10500(Sr.Scale)",9300Â34800,4400,
,"7500Â12000
(Selection Grade
20% posts)",9300Â34800,4800,
,,"7500Â12000
(Selection
Grade 20%
posts",15600Â39100,5700
,,,,
is concerned though the respondent would harp that the petitioners have also signed and given undertaking to the effect that if on account of the,,,,
wrong pay fixation and disparity is noticed in the future point of time in pay fixation and same amount in access would be paid, the same amount would",,,,
be liable to be recovered from the benefits payable to the petitioner. This undertaking was obtained by all Government servants in terms of,,,,
AnnexureÂII appended to the government resolution dated 29.04.2009 by which the pay revision was recommended in pursuance of the,,,,
recommendations of the sixth pay commission. However, the said undertaking would not bind the petitioner where the respondents have wrongly",,,,
applied criteria of eligibility prescribed in government resolution dated 03.04.2003, which is in fact not applicable to them.",,,,
17 In such circumstances, the impugned order cannot be sustained and so also the recovery sought to be effected on the basis of the impugned order.",,,,
The impugned order is quashed and set aside and it is held that the petitioners are entitled for availing the benefits of the payÂscale which was made,,,,
applicable to them with effect from 1.1.2006 and respondents are directed to continue the petitioners in the said payÂscale with subsequent placement,,,,
in senior scale and selection grade, wherever applicable, and if any recovery is made from the petitioners, the same is declared bad in law and the",,,,
respondents are directed to remit the amount to the petitioners.,,,,
As far as the petitioners who have retired from service, the respondents are directed to grant the revised refixation of payÂscale as per Sixth Pay",,,,
Commission to those petitioners in terms of GR 03.04.2003 and 13.08.2009 and release their monthly pension by placing them in the payscale of,,,,
15600Â39100 with grade pay 5400 and to pay the pension accordingly.,,,,
18 All the petitions are allowed.,,,,
19 Rule is made absolute by quashing and setting aside the impugned passed by the Auditor Cum Accounts Officer, thereby holding that the",,,,
petitioners are not entitled to the benefit of revised fixation of pay scales as per VI pay commission, in view of Government Resolution dated 3rd April",,,,
2003 and 13th August 2009.,,,,
20 The reÂfixation of salaries/pension payable to the petitioners shall be made within a period of six weeks from today. If any recoveries are made,,,,
from the petitioners on the basis of the impugned orders, such recovered amounts would be paid back to the petitioners within three months. If any of",,,,
the petitioners are entitled for any arrears on the basis of this order, the same shall be paid within six months from today.",,,,
At this stage, Mr.Dighe, learned AGP prays for stay of the order passed by this Court for a period of four weeks from today. Taking into",,,,
consideration the view that we have taken, the prayer for stay is rejected.",,,,