Monika Brij Kunj vs The State Of Maharashtra & Ors.

Rule. Rule made returnable forthwith and heard inally by consent.

By the present petition, challenge is to the order dated 23^rd June 2021 passed by the Respondent No.2-Deputy Director, upholding the order dated 8^th April 2021 passed by the Respondent No.5-School and the order dated 8^th August 2011 passed by the Respondent No. 6-Accounts Oicer, Inspection Unit (Education), initiating recovery against the Petitioner.

Briely stated, the facts of the case are that the Petitioner's father expired on 4^th February 1997 and the Petitioner submitted an application for appointment on compassionate ground, which was pending with the Respondent No. 3-Education Oicer.

The Respondent No. 3, in view of the vacancy of B.Sc., B.Ed. teacher at Respondent No. 5-School, issued an order dated 8^th December 2003, directing absorption of the Petitioner on the post of ‘Shikshan Sevak’, having qualiication B.Sc., B.Ed., and subsequently, the Petitioner was appointed to the post of ‘Shikshan Sevak’ on probation for three (3) years with efect from 10^th December 2003 to 10^th December 2006.

The individual approval was granted to the Petitioner’s appointment to post of ‘Shikshan Sevak’ on 19^th December 2003. The Petitioner's services came to be approved as ‘Assistant Teacher’ in regular pay scale by the Respondent No. 3, vide order dated 26^th January 2007.

The Respondent No. 6 conducted an audit for the inancial years 2007–2008 and 2008–2009 and raised objections, including an objection that though one post of D.Ed. Scale is vacant, teacher on B.Ed. Scale was appointed and directed recovery of diference amount from 10^th December 2013 from the Petitioner, being the diference in the B.Ed. Scale and D.Ed. Scale.

Subsequently, in the year 2015, the Respondent No. 5-School was directed to deposit the alleged excess amount paid to the Petitioner. In response, it was pointed out to the Respondent No. 3 that the request was made to provide surplus teacher for science subject and accordingly, the Graduate Pay Scale was given to the Petitioner, and hence, there is no question of recovery.

As demand was raised upon the Petitioner, to deposit the amount of Rs.3,33,752/-, which was the excess amount, the Petitioner iled a detailed representation dated 5^th April 2021 informing Respondent No. 5-School that since she is holding B.Sc., B.Ed. qualiication and appointed on B.Ed, scale, there is no excess, and there can be no recovery.

The order of recovery came to be challenged by the Petitioner by iling an application-cum-appeal with the Respondent No. 2-Deputy Director of Education, which led to passing of the impugned order. Hence, the present petition has been iled.

Mr. Bhavake, learned counsel appearing for the Petitioner has taken this Court through the records and proceedings and would point out that the Petitioner was appointed on the B.Ed. Scale, possessing B.Sc., B.Ed. qualiication, and was teaching Mathematic and Science in the secondary section. He submits that accordingly, her appointment was approved by the Education Oicer and the graduate pay scale was being paid to her. He submits that though the Petitioner's appointment was in the year 2003, it is only in the year 2011, that the audit objection was raised and recovery was sought to be initiated, which is beyond the period of ive (5) years, drawing support from the decision of the Hon'ble Apex Court in the case of State of Punjab & Ors. vs. Raiq Masih (White Washer) & Ors.^{11.(2015) 4 SCC 334.}

He would further submit that though the representation stated the Petitioner's qualiication being B.Sc., B.Ed. and discharging duties in the secondary section, no cognizance has been taken of the same. He would further submit that paragraph 18 of the decision in the case of Raiq Masih (supra) speciically provides that recovery from the employees belonging to Class-III and Class-IV, as well as recovery in cases, where an employee has been wrongfully required to discharge duties of a higher post and has been paid accordingly, even though he should have rightfully been required to work against an inferior post, is impermissible in law. He submits that given the settled position in law, the recovery could not have been initiated against the Petitioner.

Mr. Kalel, learned AGP, would submit that the submission on the aspect of period of ive (5) years will not apply in the present case, as the Petitioner was appointed in 2003 and completed three (3) years of probation in 2006. He points out that the audit objection was in respect of the excess amount paid for 2007–2008 to 2008–2009, and the recovery was initiated by communication of 8^th August 2011 to the Principal of Respondent No. 5-School, which is within the period of ive (5) years.

He would further submit that it cannot be disputed that there was no vacant post of ‘Graduate Teacher’, when the Petitioner came to be appointed, and against a D.Ed. post, the Petitioner has rendered services and excess amount came to be paid, which is sought to be recovered.

We have considered the submissions and perused the record.

The Petitioner was appointed in the year 2003 on the post of ‘Shikshan Sevak’, which services acquired deemed permanency after period of three (3) years and approval was also granted by the Respondent No. 3-Education Oicer to the Petitioner as ‘Assistant Teacher’ in regular pay scale on 26^th January 2007.

The Petitioner was teaching the subjects of Mathematic and Science in the secondary section, given her educational qualiication of B.Sc., B.Ed., and was accordingly paid the graduate teacher pay scale. The audit objection, which has been raised, was on account of the fact that at the time of the appointment of the Petitioner in the year 2003– 2004, considering the staing pattern, the sanctioned post was of 1 Headmaster, 5 trained Graduate Teachers, 3 Undergraduate Teachers and 1 Graduate Teacher. The reason of the wrongful payment of salary as a ‘Graduate Teacher’ was attributed to the fact that at the relevant time, apart from the Headmaster, 6 Graduate Teachers were getting the pay scale and, therefore, the Petitioner was being paid a graduate pay scale, which was excess of the sanctioned staf. The sum and substance of the reasoning for the recovery is that without any sanctioned post of graduate teacher, a graduate pay scale was being paid to the Petitioner. There is no material placed on record to dispute the position that the Petitioner was teaching in the secondary section in the subjects of Mathematics and Science. The Petitioner was, therefore, discharging the duties of a higher post, which was not the sanctioned post at the relevant time, and should have been teaching as an undergraduate teacher in the primary section. The case of the Petitioner, therefore, squarely falls within the categories, enumerated in paragraph 18(iv) of the decision of the Hon'ble Apex Court in the case of Raiq Masih (supra). The Hon'ble Apex Court has speciically held that such recovery is impermissible in law. This is apart from the fact that the Petitioner falls to Class-III service and, therefore, such recovery has also been held to be bad by the Hon'ble Apex Court. Considering the law laid down by the Hon’ble Apex Court, the order of recovery is impermissible.

In so far as paragraph 2 of the impugned order is concerned, no submissions have been canvassed in that respect. The submissions canvassed are in respect of the recovery of the alleged excess amount and considering the decision of the Hon'ble Apex Court in the case of Raiq Masih (supra), paragraph 1 of the impugned order is clearly unsustainable. In light of the discussion above, paragraph 1 of the impugned order dated 23^rd June 2021 is hereby quashed and set aside.

Resultantly, there can be no recovery of any excess amount from the Petitioner.

The Writ Petition is allowed in the above terms.

Needless to clarify that as the impugned order insofar as the recovery of the excess is concerned is set aside, necessary consequences to follow.

The Interim Application would not survive and the same stands disposed of.

If any amount is recovered on the basis of the impugned order, the same to be accordingly adjusted.