JUDGEMENT
Swatanter Kumar, CJ -
(1.)In this Petition under Article 226 of the Constitution of
India, the Petitioner prays for issuance of appropriate writ or order
requiring the Respondents to produce the record and after examining
the propriety and legalities of the letter dated 1st July 2006 as well as
the Resolution of the Management dated 16th October 2006 and the
letter dated 19th July 2008, the said letters and the resolution be
quashed and set aside and further the Respondents be restrained
from recovering the sum of Rs.1,26,226/- or any other amount from
the Petitioner. The Petitioner also prays for some other incidental
directions.
(2.)The necessary facts as they emerge from the record are
that the Petitioner is a trained Graduate Teacher who joined the
Anandilal Podar High School, Santacruz (W), Mumbai as Assistant
Teacher on 26th July 1983. On 10th September 1991, she was
rendered surplus and she joined Sheth Chimanlal Nathuram School,
Respondent No.5 herein, and according to her, pay scale was fixed
taking her appointment as 2nd July 1984 instead of 26th July 1983.
Since the Petitioner completed twelve years of service, she was
granted senior grade taking the first date of her appointment as 2nd
July 1984 and she started drawing the salary in the said pay scale.
Certain objections were raised by the Auditor regarding grant of
senior grade from 1st July 1996. It was directed to recover the dues
from the Petitioner and entries in the service book were also directed
to be corrected by re-stamping the pay scale of the Petitioner
cancelling old stampings. Against this action, the Petitioner filed an
Appeal. She relied upon a Circular of the Government dated 29th
October 1980 which stated that break in service can be counted for
fixation of pay scale and even a substitute teacher can get benefit of
service rendered by him/her. On 16th October 2006, the School
Committee, as directed by the Deputy Director of Education, ordered
re-stamping in the service book with regard to the pay fixation and the
sum of Rs.1,26,226/- was ordered to be recovered from the Petitioner
in 26 equal installments. This order was challenged by the Petitioner
by filing Writ Petition No.2175 of 2007 which was finally disposed of
by the Division Bench by passing the following order :-
"1. Learned Counsel for the State submits that
without prejudice to their rights and contentions, the
State would grant a hearing to the Petitioner and
would also consider the effect of the G.R. issued by
the Government at page 48 of the paper book and
then pass appropriate order within two weeks from
today. He further states that the impugned order will
not be given effect to.
2. In view of the Statement, nothing survives in this
petition. The impugned order shall not be given effect
to. The petitioner will be heard and appropriate orders
will be passed within two weeks. Deductions already
made need not be refunded but no further deduction
will be made till two weeks after passing of the order,
in question.
3. Writ Petition is disposed of."
(3.)Thereafter the Petitioner was heard and again a resolution
was passed by the Management relying upon the letter of Director of
Education on 19th July 2008 directing recovery of Rs.1,25,718/- to be
made from the Petitioner, the operative part of the said order reads as
under :-
"6. Considering all the pros and cons of the matter,
the working group has decided the same on 7.12.2005
and 5.1.2006. Accordingly today on 27.6.2008 the
said decisions arrived at by the working group in their
meeting on 7.12.2005 and 5.1.2006 are hereby
confirmed and therefore the amount of Rs.1,25,718
paid by the Government is required to be recovered."
The correctness and legality of this order is being questioned by the
Petitioner in the present Writ Petition.
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