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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

WRIT PETITION NO. 4726 OF 2023

1. Smt. Megha w/o Nandkumar Deshmukh,

Aged about 59 years, Occupation :

Retired Head mistress, Smt. Ashatai Borde

Secondary School, Borgaon Manju,

Resident of Borgaon Manju, Tahasil and

District Akola

... PETITIONER

...VERSUS…

1. State of Maharashtra,

Department of School Education and

Sports, through its Principal Secretary,

Mantralaya Mumbai 32

2. Director of Education (Secondary and Higher

Secondary) Directorate of Maharashtra State

Secondary and Higher Secondary Education,

Central Building, Dr. Anne Bezant Road, Pune-411001.

3.Deputy Director of Education

Amravati Division, Amravati

4.Education Officer, (Secondary) Zilla

Parishad, Akola

5.Indra Shikshan Prasarak Mandal, a

Society registered under the provisions

of Bombay Public Trust Act, bearing

Registration No.Mah./1751 represented

through its Secretary, having its Office

at Borgaon Manju, Tahsil and District Akola

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6.Smt. Ashatai Borde Secondary School,

Borgaon Manju, Tahasil and District

Akola through its Head Master

7.Accountant General (A&E)-II,

Maharashtra, Nagpur, Civil Lines,

Nagpur

...RESPONDENTS

---------------------------------------------------------------------------------------------

Dr. S. Y. Deopujari, Advocate for petitioner

Mrs. D. I Charlewar, AGP for respondent(s)/State

Mr. A. B. Patil, Advocate for respondent nos. 5 and 6.

---------------------------------------------------------------------------------------------

CORAM :SMT. M.S. JAWALKAR AND

NANDESH S. DESHPANDE, JJ.

RESERVED ON : 04

th

MARCH , 2026.

PRONOUNCED ON : 02

nd

APRIL, 2026.

JUDGMENT (PER : NANDESH S. DESHPANDE, J.)

1.Rule. Rule made returnable forthwith. Heard finally with the

consent of the parties.

2.The petitioner has filed the present writ petition challenging

the order dated 25.06.2021 and the order dated 14.02.2022 passed

by Respondent No. 5/Management, permanently cancelling the

increments due and payable to the petitioner from July 2016 to

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June 2020 and directing the petitioner to deposit the difference in

salary allegedly received in excess into the Government Exchequer.

3.The facts giving rise to the present writ petition, in brief, are

as under:

(i)The petitioner was appointed on a clear vacant post of

Assistant Teacher on probation for two years by order dated

05.07.1993 and was thereafter made permanent, which

appointment was duly approved by the Education Officer

(Respondent No. 4).

(ii)The petitioner was initially appointed as an Assistant Teacher

in Respondent No. 6 — a Government-recognised, grant-in-aid

secondary school at Borgaon Manju, Akola, run by Respondent No.

5, vide order dated 30.07.1990, confirmed on a clear vacant post on

05.07.1993, and promoted as Headmistress by order dated

01.10.1995 with the approval of the Education Officer. Pursuant to

the Government Resolution dated 22.02.2019 implementing the 7th

Pay Commission recommendations with effect from 01.01.2016, the

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petitioner submitted a proposal dated 28.02.2019 for fixation of her

revised pay to Respondent No. 4 — the Education Officer, which

was duly endorsed by the Secretary of Respondent No. 5 and the

Accounts Officer, Education Department, Akola, and was thereafter

approved by Respondent No. 4. Accordingly, the petitioner received

her salary in the revised pay scale with increments from July 2016

to July 2020.

(iii)Respondent No. 5 issued a show cause notice dated

18.05.2021 alleging misconduct against the petitioner on two

counts — (1) issuance of a letter dated 20.08.2020 in the matter of

the caste claim of Mr. S.D. Bais, and (2) submission of salary

proposals of 13 employees to the Education Department without the

prior sanction of the Management — both of which were in fact

statutory duties of the petitioner as Headmistress under Schedule I,

Item 3(f), (g), and (h) of the M.E.P.S. Rules, 1981. Despite a

detailed reply dated 02.06.2021, Respondent No. 5, by resolution

dated 15.06.2021 and the impugned order dated 25.06.2021,

permanently cancelled all increments payable to the petitioner with

effect from 01.07.2021 and directed the recovery of the difference

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in salary from July 2016 to June 2021 into the Government

Exchequer. The petitioner preferred an appeal before Respondent

No. 3 — Deputy Director of Education, Amravati Division, on

15.07.2021; however, no decision has been communicated till date.

(iv)Without issuing any fresh show-cause notice or affording any

opportunity of hearing, Respondent No. 5, again by resolution

dated 25.01.2022 and the impugned order dated 14.02.2022,

permanently cancelled all increments of the petitioner from July

2016 to July 2020 and further directed the deposit of the alleged

excess salary into the Government Exchequer. The petitioner filed

an appeal under Rule 28(5)(a) of the M.E.P.S. Act, 1977, before

Respondent No. 2 — Director of Education, on 05.04.2022, which

remains unattended. Upon retirement on 30.09.2022, the pension

and gratuity of the petitioner were calculated at a reduced pay

scale, ignoring increments for the period from July 2016 to June

2022, and a recovery of Rs. 7,96,717/- has been proposed from her

retirement benefits, all as a direct consequence of the impugned

orders passed by Respondent No. 5 without any authority under the

M.E.P.S. (Conditions of Service) Act, 1977, and the Rules of

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1981.All these actions / orders are challenged in the present

petition.

4.We have heard Shri S.Y. Deopujari, learned counsel for the

Petitioner, learned Assitant Government Pleader Mrs. D.I. Chanewar

for Respondent Nos. 1 to 4 and 7, and Shri A.B. Patil, learned

counsel for Respondent Nos. 5 and 6.

5.Shri S.Y. Deopujari, learned counsel for the petitioner,

submits that the actions attributed to the petitioner do not

constitute "misconduct" under Rule 28(5)(a) of the M.E.P.S. Rules,

1981, as the submission of salary bills, increment proposals, and

issuance of the letter dated 20.08.2020 were strictly in discharge of

her statutory duties as Headmistress under Schedule I, Item 3(f),

(g), and (h) of the M.E.P.S. Rules, 1981, and therefore the

impugned orders are liable to be quashed and set aside.

6.He further submits that Rule 29(2) of the M.E.P.S. Rules,

1981, empowers the Management to withhold an increment for a

period not exceeding one year only, and there is no provision under

the M.E.P.S. Act, 1977, or the Rules of 1981 to permanently cancel

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increments retrospectively for five consecutive years. Respondent

No. 5 has therefore acted wholly beyond its statutory powers.

7.He further urged that the direction to recover the difference

in salary and deposit the same into the Government Exchequer is

equally unsustainable, as Rule 29(3) of the M.E.P.S. Rules, 1981,

permits recovery only for pecuniary loss caused to the institution. In

the present case, no such loss was ever alleged or demonstrated by

Respondent No. 5, the increments having been duly sanctioned and

paid by the Education Department itself.

8.Learned counsel further contends that both the impugned

orders are passed in flagrant breach of the principles of natural

justice, as no opportunity of personal hearing was afforded to the

petitioner before passing either order, and the order dated

14.02.2022 was passed without even issuing a fresh show cause

notice, in clear violation of the principle of audi alteram partem and

Article 14 of the Constitution of India.

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9.It is also contended that the proposal for revised pay fixation

was submitted with the knowledge, endorsement, and certification

of the Secretary of Respondent No. 5 and was duly approved by

Respondent No. 4 — the Education Officer; neither Respondent No.

3, Respondent No. 4, nor the Accounts Officer raised any objection

at any point, and the unilateral retrospective cancellation of

increments lawfully sanctioned under the Government Resolution

dated 22.02.2019 is therefore wholly without authority.

10.He further points out that the disciplinary proceedings were

initiated and concluded without obtaining the concurrence of

Respondent Nos. 2, 3, or 4, who are the statutory supervisory

authorities over the aided school, and had there been any illegality

on the part of the petitioner, these authorities, being the sanctioning

authority for salaries, would have themselves initiated recovery;

their inaction fortifies the illegality of the impugned orders.

11.It is submitted that, as a direct consequence of the illegal

orders of Respondent No. 5, the pension and gratuity of the

petitioner, upon her retirement on 30.09.2022, have been

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calculated at a reduced pay scale, ignoring increments from July

2016 to June 2022. Furthermore, a recovery of Rs. 7,96,717/- is

being sought from her retirement benefits, which is manifestly

arbitrary and in violation of Articles 14 and 21 of the Constitution

of India.

12.The learned AGP appearing on behalf of Respondent No. 7 —

Office of the Accountant General (A&E)-II, Maharashtra, Nagpur,

submits that the role of the answering Respondent is limited to

scrutiny of pension proposals received from the Pension Sanctioning

Authority and the authorization of pensionary benefits if found

admissible; the office acts not on its own volition but solely on the

basis of proposals forwarded in the prescribed format by the

concerned Pension Sanctioning Authority.

13.He further submits that the pension proposal was received

from Respondent No. 4-Education Officer (Secondary), Zilla

Parishad, Akola, vide letter dated 22.06.2022; during scrutiny, it

was noticed that increments of the petitioner from 01.07.2016 until

retirement stood cancelled as per entries in the service book,

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resulting in a proposed recovery of Rs. 7,96,717/- from pensionary

benefits, to which the petitioner herself had furnished a duly signed

consent. It is further submitted that the reliefs sought by the

petitioner are purely administrative in nature, falling entirely within

the purview of Respondent No. 4 — Pension Sanctioning Authority,

and any further action can only be taken upon receipt of

communication from the said authority in accordance with the

M.C.S. (Pension) Rules, 1982; no action is presently pending on the

part of the answering Respondent.

14.Per contra, the learned counsel for Respondent No. 5 submits

that the present writ petition is liable to be dismissed both on

maintainability as well as on merits. He submits that the petitioner

has an alternate and efficacious remedy under the M.E.P.S. Act,

1977, and the Rules of 1981, and has in fact already availed one

such remedy by preferring an appeal before the Deputy Director of

Education, Amravati, which is still pending; the petition is therefore

liable to be rejected on this sole preliminary ground.

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15.He further submits that the petitioner's service record is far

from unblemished pursuant to a direction of the Divisional

Secretary, Maharashtra State Secondary and Higher Secondary

Education Board, dated 24.05.2004, when one increment of the

petitioner was withheld for one year on account of proven

misconduct; that, in yet another instance, the petitioner unilaterally

issued an order dated 20.08.2020 placing Mr. S.D. Bais on a

supernumerary post without any authority or approval of the

Management, despite the issue of his caste validity certificate being

sub-judice before the Caste Scrutiny Committee; and that, further,

without the knowledge or consent of the Management, the

petitioner unilaterally applied increments to 13 employees,

including herself, in contravention of standard procedure,

compelling Respondent No. 5 to issue a show cause notice dated

18.05.2021, to which the replies of the petitioner dated 02.06.2021

and 22.09.2021 were found wholly unsatisfactory.

16.It is also contended that the audit report for the period 2012-

2013 to 2019-2020, prepared by the Accounts Officer, Education

Department, Akola, independently found that the mandatory

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procedure for grant of increments to the Head of the institution was

not followed, and the increments applied by the petitioner were

liable to be recovered. It is submitted that the petitioner has failed

to produce any document evidencing prior approval or consent of

the Management before applying increments to herself, and the

increment certificates signed and submitted by the petitioner under

her own signature conclusively establish intentional violation of the

mandatory procedure; therefore, no interference in writ jurisdiction

is warranted.

17.We have considered the contentions canvassed by the learned

counsel for the respective parties, and with their assistance also

gone through the record.

18.The preliminary objection, as far as the maintainability of the

petition is concerned, has to be decided first. The learned counsel

for respondent No. 5, in support of the preliminary objection, has

placed on record the Judgment of this Court in Writ Petition No.

5607 of 2010, decided by this Court on 13.06.2012. By drawing

support from the said judgment, the learned counsel for respondent

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Nos. 5 and 6 submits that in an identical set of facts, this Court has

held that an appeal is provided to the Deputy Director in terms of

the MEPS Rules. This was a case where there was a withholding of

two increments and permanent denial of the next time-bound

promotion. He therefore submits that such an alternate remedy is in

fact available to the petitioner, to which she can be relegated.

19.Responding to the above, the learned counsel for the

petitioner places reliance on the judgment of the Hon’ble Supreme

Court in Whirlpool Corporation v. Registrar of Trade Marks,

Mumbai, reported in (1998) 8 SCC 1. By placing reliance on

paragraph 13 of the said judgment, the learned counsel for the

petitioner submits that the existence of an alternate remedy is a

rule of self-restraint and that it would not deter this Court from

exercising jurisdiction under Article 226 of the Constitution of

India. Paragraph 13 of the said judgment reads as under :

“13.Under Article 226 of the Constitution, the High

Court, having regard to the facts of the case, has a

discretion to entertain or not to entertain a writ petition.

But the High Court has imposed upon itself certain

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restrictions one of which is that if an effective and

efficacious remedy is available, the High Court would not

normally exercise its jurisdiction. But the alternative

remedy has been consistently held by this Court not to

operate as a bar in at least three contingencies, namely,

where the writ petition has been filed for the enforcement

of any of the Fundamental Rights or where there has been

a violation of the principle of natural justice or where the

order or proceedings are wholly without jurisdiction or the

vires of an Act is challenged. There is a plethora of case-

law on this point but to cut down this circle of forensic

whirlpool, we would rely on some old decisions of the

evolutionary era of the constitutional law as they still hold

the field.”

20.He also places reliance on the judgment of Andi Mukta

Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mohatsav

Smarak Trust v. V. R. Rudani, & Ors., reported in (1989) 2 SCC

691, to canvass the ambit and scope of Article 226 of the

Constitution of India.

21.We have gone through the said judgment. In view of the

authoritative pronouncement of the Hon’ble Apex Court in

Whirlpool Corporation (supra) we are of the considered opinion

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that the existence of an alternate remedy, being a rule of self-

restraint, would not operate as a bar in respect of three

contingencies, namely, (i) the enforcement of any of the

Fundamental Rights; (ii) a violation of the principles of natural

justice; or (iii) where the order or proceedings are wholly without

jurisdiction. If the impugned orders are viewed on the touchstone of

these authoritative pronouncements of the Hon’ble Apex Court, we

are of the considered opinion that there was no power vested in the

management to stop the increments, which is the subject matter of

challenge. The action of the management, being an excess of

power, renders it wholly without jurisdiction. We, therefore,

proceed to entertain the present petition on merits.

22.As can be seen from the impugned order, the same provides

for the stoppage of increments, and the only reason, as spelt out in

the order, is that the petitioner, without obtaining any resolution of

the Managing Committee, sent a proposal for increments to the

concerned Education Officer. Therefore, the action was taken in

accordance with Rule 28(5) of the Maharashtra Employees of

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Private Schools (Conditions of Service) Act, 1977 and the Rules of

1981.

23.The scheme of the MEPS Act and Rules has fallen for

consideration of this Court time and again. In the judgments of this

Court in Writ Petition No. 5067/2010, relied upon by the learned

counsel for the respondent, this Court had an occasion to consider

the entire scheme of the MEPS Act and Rules. After considering the

said scheme, this Court stated that the Act and Rules constitute a

complete code in the matter of discipline and conduct. The

management, therefore, cannot go beyond the procedure prescribed

thereunder. Rule 29 and Rule 31, if read conjointly, make it explicit

that the language thereof is very specific, employing the singular

number, i.e., the word used is “increment” and not “increments.”

The use of the prefix “an” or the verb “is” in conjunction with it also

emphasizes this fact. Punishment of withholding only one

increment is therefore envisaged by these Rules. Against such a

minor penalty, an appeal lies before the Deputy Director; for a

major penalty, an appeal lies before the School Tribunal.

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24.Thus, in disciplinary matters, the 1977 Act and 1981 Rules

contain a self-sufficient and complete code. Hence, that

“completeness” cannot be allowed to be defeated by permitting the

management to impose some other adverse measure as punishment

or to invent/use it as such. Thus, it is explicitly clear that what is

contemplated as a penalty under Rule 31 (Sub-Rule 4) is

withholding an increment for a period not exceeding one year only,

and not more than that. Furthermore, Schedule I, framed under

Sub-Rule 22(1) of the said Rule, specifies the duties of the Head. As

per Sub-Rule 3, and more particularly Sub-Clause (f) thereof,

drawing annual increments of the employees on due dates, if

otherwise not withheld for a valid reason, is within the duties of the

Head. Thus, it is explicitly clear that what was done by the

petitioner was within the scope of her duties as Head of the

institution.

25.A further glaring fact is with regard to the pension. A deeper

look at the proposal for the revised pay of the petitioner submitted

to the Education Department reveals that the said proposals, apart

from bearing the signature of the petitioner, also bear the signature

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of the Secretary of the respondent management and have been

approved by the Accounts Officer of the Education Department.

Three such proposals are placed on record by the petitioner. It is

noteworthy that these have not been denied by the respondent

management in any of its affidavits-in-reply. It is therefore clear

that the petitioner was performing her duties as enjoined under the

statute and the rules framed thereunder. Thus, no fault can be

found with the action of the petitioner. As a necessary follow-up,

the impugned order cannot withstand the scrutiny of law. We,

therefore, pass the following order :-

ORDER

i)Writ petition is allowed.

ii)It is hereby declared that the resolution dated 15.06.2021,

passed by the Executive Committee of the respondent No. 5, and

the order dated 25.06.2021, passed pursuant to the said resolution,

as also the further resolution dated 25.01.2022 and the order dated

14.02.2022, are illegal and, therefore, are quashed and set aside.

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iii)The respondents are therefore directed to restore all the

increments cancelled by respondent No. 5, as also the pay scale of

the petitioner from July 2016 till her retirement, and to grant her

all consequential benefits arising therefrom.

iv)It is further directed that the respondents should revise the

pension and gratuity payable to the petitioner after her retirement

on the basis of the restored pay scale, after taking into

consideration the increments due and payable to the petitioner

from July 2016 till the date of her retirement, and pay the

difference between the present pension and the pension payable to

the petitioner after such recalculation within a period of two

months from the date of passing of this order.

v)The respondents are further directed to refund an amount of

Rs. 7,96,717/- deducted towards the recovery of excess salary paid

to her from her gratuity.

26.The Writ Petition is disposed of. Rule is made absolute in the

above terms.

(NANDESH S. DESHPANDE, J.) (SMT. M.S. JAWALKAR, J.)

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