C/SCA/12702/2019 JUDGMENT DATED: 16/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12702 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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MOHANBHAI SONAJI PUROHIT
Versus
STATE OF GUJARAT
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Appearance:
for the Petitioner(s) No. 10,11,12,13,14,2,3,5,6,7,8,9
DECEASED LITIGANT(100) for the Petitioner(s) No. 4
MR NIRAD D BUCH(4000) for the Petitioner(s) No.
1,10,11,12,13,14,2,3,4.1,4.2,4.3,5,6,7,8,9
MRS. BHAVINI N. BUCH(5403) for the Petitioner(s) No.
1,10,11,12,13,14,2,3,4.1,4.2,4.3,5,6,7,8,9
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1
LAW OFFICER BRANCH(420) for the Respondent(s) No. 2
MR GM JOSHI, SENIOR ADVOCATE FOR MS PJ DAVAWALA(240) for the
Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 16/09/2021
ORAL JUDGMENT
1. By way of this petition, the petitioners have challenged the legality, validity, propriety and correctness of the communication dated 08.01.2019 and 29.04.2019. The impugned communications have been Page 1 of 12 Downloaded on : Sun Oct 10 01:18:51 IST 2021 C/SCA/12702/2019 JUDGMENT DATED: 16/09/2021 issued under the Government Resolution dated 18.02.2011 issued by the Finance Department of State of Gujarat, by which;
[a] the respondent no.2 has been directed to fix pay of the petitioners in the pay scale of Rs.5200-20200 with grade pay of Rs.2000 instead of Rs.2400;
[b] to cancel the grade pay of Rs.2400 on the ground that it was erroneously fixed by the respondent no.3; and [c] the proposal forwarded by respondent no.2 for approval of grade pay of Rs.2400 has been refused by respondent no.3.
2. The brief facts of the case are as under:-
2.1. The petitioners were appointed on the isolated posts of Drivers against the sanctioned set up of the High Court of Gujarat on different dates ranging from January, 1991 to February, 2001. The initial pay of the post of drivers was Rs.950-1500. The pay scale was revised from Rs.950-1500 to Rs.3050-4590 with effect from 01.01.1996 as per the fifth pay commission. Accordingly, the pay of the eligible petitioners was revised in the above pay scale.
2.2. As per the resolution dated 02.07.2007 issued by the respondent no.1, the "Scheme of Higher Grade Scale at 12 and 24 years for Government Employees" was introduced. Accordingly, the corresponding pay scale was revised from Rs.3050-4590 to Rs.4000-6000. Vide Page 2 of 12 Downloaded on : Sun Oct 10 01:18:51 IST 2021 C/SCA/12702/2019 JUDGMENT DATED: 16/09/2021 Government Resolution dated 27.02.2009, the Finance Department of Government of the Gujarat made Gujarat Civil Services (Revision of Pay) Rules, 2009, which are deemed to have come into force with effect from 01.01.2006. By virtue of the aforesaid notification, corresponding pay scale of the petitioners is revised to Rs.5200-20200 with the grade pay of Rs.2,400/-
2.3. The respondent no.1, then came up with a resolution dated 18.02.2011 with regard to higher pay scale for the isolated posts or the posts with limited chance of promotion. By virtue of this resolution, it amended the resolutions dated 16.08.1994, 14.08.1998 and 02.07.2007 issued by the respondent no.1. The respondent no.2 had sought for approval of the respondent no.3 for grant of the first higher grade scale in the pay scale of Rs.5200-20200 with grade pay of Rs.2,400/- as per the 6th Pay Commission.
2.4. In response to the above communication, the respondent no.3 raised an objection and asked the respondent no.2 to fix the grade pay of the petitioners to Rs.2,000/-, in place of existing grade of Rs.2,400/- and also asked to cancel the higher grade of Rs.2,400/- already approved by it, under the pretext that the same has been erroneously approved by the said office. By the communication dated 04.04.2019, the respondent no.2 reiterated the proposal, inter alia on the ground that the pay verification Page 3 of 12 Downloaded on : Sun Oct 10 01:18:51 IST 2021 C/SCA/12702/2019 JUDGMENT DATED: 16/09/2021 unit has approved grant of benefit of the first higher grade scale in the revised pay scale of Rs.5200-20200 with grade pay of Rs.2,400 as per 6 th Pay Commission with effect from 01.07.2013.
3. Learned advocate Mr.Nirad Buch appearing for the petitioners has submitted that the impugned objection raised by the Respondent No. 3 is arbitrary and violative of fundamental right to equality. It is stated that when the Respondent No.3 has approved grade pay of Rs. 2400 in case of Petitioner Nos. 11 to 14, there is no reason for denying the said benefit to the other petitioners.
4. Learned advocate Mr.Nirad Buch appearing for the petitioners has submitted that the benefits approved in cases of petitioner nos. 11 to 14 with effect from 01.07.2019 cannot be ordered to be taken away in such an arbitrary manner. It is further submitted that it is a cardinal principle of law that the higher grade paid to the employee cannot be recovered even if it was paid by mistake. He has submitted that the Government Resolution dated 16.08.1994 is more than clear on this aspect.
5. Learned advocate Mr.Nirad Buch appearing for the petitioners has submitted that the impugned decision is based on erroneous reading of the policy dated 18.02.2011. It is submitted that in light of the Government Resolution dated 02.07.2007 the corresponding pay scale of Page 4 of 12 Downloaded on : Sun Oct 10 01:18:51 IST 2021 C/SCA/12702/2019 JUDGMENT DATED: 16/09/2021 the petitioners was revised from Rs.3,050 - Rs.4,590 to Rs.4,000 - Rs.6,000. It is further submitted that thereafter in light of notification dated 27.02.2009, the pay scale of Rs.4,000 - 100 - 6000 came to be revised to Rs.5200-20200 with corresponding grade pay of Rs.2,400. It is submitted that in light of the aforesaid facts of the case, the grade pay off Rs.2,400 sought to be approved by the Respondent No. 2 has been wrongly refused by the Respondent No. 3.
6. Learned advocate Mr.Nirad Buch appearing for the petitioners has submitted that the Government Resolution dated 18.02.2011 does not amend the Government Notification dated 27.02.2009, and therefore, the objection raised by respondent no. 3 is illegal and without jurisdiction. It is submitted that under the Government Resolution dated 18.02.2011, against the payment of Rs.5,200 - Rs.20,200 with grade pay of Rs.2,400 as revised with effect from 01.01.2006, revised pay has been fixed at Rs.5,200 - Rs.20,200 with grade pay of Rs.2,800. It is submitted that admittedly, under the notification dated 27.02.2009 by which the Gujarat Civil Services (Revision of Pay) Rules, 2009 made effective from 01.01.2006, the corresponding pay scale of the petitioners would be Rs.5,200 - Rs.20,200 with corresponding grade pay of Rs.2,400. Thus, it is submitted that it is not permissible for respondent No. 3 to reduce the grade pay to Rs.2,000.
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7. Learned advocate Mr.Nirad Buch appearing for the petitioners has submitted that the petitioners have been working on the isolated post of drivers. It is further submitted that by virtue of the Government Resolution dated 02.07.2007, a government employee is entitled to receive the first higher grade according to the Government Resolution dated 16.08.1994 on completion of nine years of service before 02.07.2007. He has submitted that such employee would be entitled to receive the second higher grade after 15 years from the date of receipt of the first higher grade scale under the Government Resolution dated 02.07.2007. Thus, he has submitted that except the last petitioner, all the petitioners completed services of nine years and, therefore, they are entitled to further higher grade. It is submitted that in the facts of this case, the only revised pay structure against the pay scale of Rs.4,000 - 100 - 6000 was Rs.5,200 - 20,200 with grade pay of Rs.2,400, the petitioners are entitled to receive the same grade pay to avoid pay anomaly between similarly situated employees.
8. Per contra, Learned Senior Advocate Mr.G.M.Joshi has forwarded a communication dated 15.09.2021 of the Registrar, Recruitment and Finance giving the details of recovery of all the petitioners. The same is ordered to be taken on record.
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C/SCA/12702/2019 JUDGMENT DATED: 16/09/2021
9. A perusal of the aforesaid communication, wherein the details would show that the recovery of some of the petitioners is effected from 2007, 2011 and 2013. Thus, indubitably, the amount is to be recovered after more than 5 years after grant of the higher pay-scale.
10. With regard to fixation of Grade Pay of Rs.2,400/- is concerned, learned Senior Advocate Mr.G.M.Joshi has invited the attention of this Court to the Government Resolution dated 18.02.2011 and submitted that the case of the petitioners will be governed by the aforesaid resolution since the post of Driver working under the establishment of the High Court of Gujarat is an isolated post. He has submitted that as per the said resolution, the petitioners, who are working as Drivers in the Pay Band of PB-1 in the pay-scale of Rs.5200-20200/- , would be entitled to the Grade Pay of Rs.2,000/-, as per the Appendix attached to the resolution. It is submitted that due to inadvertence, while following the Government Resolution dated 02.07.2007, all the petitioners, who are serving as Drivers, were conferred the Grade Pay of Rs.2,400/-, as they were drawing the pay-scale of Rs.3050-4590, in view of the higher pay-scale of Rs.4000-6000.
11. It is submitted that on the promulgation of revision of pay vide Notification dated 27.02.2009 framing the Gujarat Civil Services (Revision of Pay) Rules, 2009 (for short "the Rules, 2009") with effect Page 7 of 12 Downloaded on : Sun Oct 10 01:18:51 IST 2021 C/SCA/12702/2019 JUDGMENT DATED: 16/09/2021 from 01.01.2006, a mistake was committed in fixing the Grade Pay of the petitioners. He has placed reliance on the Schedule-A of under Rules 3 and 4, Part-A and has submitted that since the petitioners were considered in the pay-scale of Rs.4000-6000, the Grade Pay of Rs.2,400 was inadvertently granted in pay band of Rs.5200-20200as in fact they would be entitled to the Grade Pay of Rs.1,900 in the pay-scale of Rs.3050-4590 revised to pay band of Rs.5200-20200 and accordingly, they would be entitled to the higher pay-scale of Rs.5200-22000 in grade pay of Rs.2,000/- as per the Government Resolution dated 18.02.2011, which was issued specifically for the isolated post. Thus, he has submitted that the petitioners would be entitled to the Grade Pay of Rs.2,000/- instead of Rs.2,400/-.
12. Learned AGP Mr.Sahil Trivedi, while placing reliance on the judgment of the Apex Court in the case of Union Territory, Chandigarh and Others vs. Gurucharan Singh and another, (2014) 13 SCC 598 has submitted that the State has all the powers to recover the amount, which were inadvertently or incorrectly paid to the employees. He has submitted that all the petitioners, at the relevant time, have given an undertaking that when the benefits of the higher pay-scale were extended in view of the Government Resolution dated 16.08.1994.
13. I have heard the learned advocates appearing for the respective Page 8 of 12 Downloaded on : Sun Oct 10 01:18:51 IST 2021 C/SCA/12702/2019 JUDGMENT DATED: 16/09/2021 parties.
14. With regard to Grade Pay of Rs.2,400 is concerned, this Court is of the considered opinion that the submissions advanced by the learned Senior Advocate Mr.G.M.Joshi deserve to be accepted as it appears that due to inadvertence, the petitioners were granted Grade Pay of Rs.2,400 as their pay was fixed simultaneously in view of the Government Resolution dated 02.07.2007 and the Rules, 2009 with effect from 01.01.2006.
15. It is undisputed fact that all the petitioners, who are serving on the post of Drivers in the establishment of the High Court of Gujarat, is an isolated post without any promotional avenue. The case of the petitioners would be governed by the Government Resolution dated 18.02.2011, which was issued for granting the higher pay-scale to isolated posts in the State. The Appendix attached to the aforesaid resolution, more particularly item no.5, indicates that the Government employees, who are in the Grade Pay of Rs.1,900/- having corresponding pay of Rs.5,200- 20,200, are entitled to Grade Pay of Rs.2,000 as per the said resolution. The petitioner nos.1, 6, 7 and 9 were already conferred the revised pay scale of Rs.3050-4590 as per 5th Pay Commission. They were granted higher pay scale as per Government Resolution dated 16.08.1994 on completion of 9 years of service since they had completed 9 years before Page 9 of 12 Downloaded on : Sun Oct 10 01:18:51 IST 2021 C/SCA/12702/2019 JUDGMENT DATED: 16/09/2021 the Resolution dated 02.07.2007 came into force, whereas rest of the petitioners were conferred the higher pay scale on completion of 12 years of service in view of Resolution dated 02.07.2007. The aforesaid conferment of higher pay scale was erroneous since the pay scale of the petitioner was revised from Rs.3050-4590 to Rs.5200-20200 in pay band of Rs.1900 in view of the Revision of Pay Rules, 2009 with effect from 01.01.2006. All the petitioners are granted higher pay scale after the cut of date of 01.01.2006. As per the appendix attached to the Government Resolution dated 18.02.2011, the pay band of pay scale of Rs.5200- 20200(pay band Rs.1900) is Rs.2000/- and not Rs.2400/- which was granted to the petitioners. The petitioners are erroneously paid the pay band of Rs.2400 by granting higher pay scale in Rs.4000-6000(revised to Rs.5200-20200 in pay band of Rs.2400) as per the appendix attached to Resolution dated 2.7.2007, since as on 1.1.2006 in view of the Revision of Pay, 2009, the petitioners became entitled to pay scale of Rs.5200- 20200 in pay band of Rs.1900, they are not entitled to higher pay scale of pay band of Rs.2400 in pay scale of Rs.5200-20200, but instead pay band of Rs.2000 as their post is an isolated post. Thus, no infirmity can be found in the decision of the respondent authorities in fixing their Grade Pay in the Pay Band of Rs.2,000/- instead of Rs.2,400, however, with regard to aspect of the recovery is concerned, I may with profit refer to the decision of the Supreme Court in the case of State of Punjab and Others vs. Rafiq Page 10 of 12 Downloaded on : Sun Oct 10 01:18:51 IST 2021 C/SCA/12702/2019 JUDGMENT DATED: 16/09/2021 Masih (White Washer) and Others, (2015) 4 SCC 334, wherein the Supreme Court has formulated the parameters with regard to recovery by the employers and the same would be "impermissible in law" from the employees, whose case is governed under such parameters. The same extracted as below:-
"18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been 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.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
16. The case of the petitioners will fall under parameters (I) and (iii). Thus, the Supreme Court has directed that the recovery from the employees belonging to the Class-III and IV service is "impermissible in law" and also if the same is effected after a period of five years. Unquestionably, the petitioners are belonging to Class-IV employees and Page 11 of 12 Downloaded on : Sun Oct 10 01:18:51 IST 2021 C/SCA/12702/2019 JUDGMENT DATED: 16/09/2021 the recovery is after more than five years. Hence, the recovery in their case would be "impermissible in law". Thus, even though the present petitioners, who had given undertakings, the recovery would be "impermissible in law" in their case and hence, though the fixation of the petitioners, as directed by the respondent authorities, did not require any interference, at the same time the recovery effected in view of such pay fixation is quashed and set aside.
17. Accordingly, the respondents are directed not to recover the amount from the petitioners. However, their pay fixation is not disturbed.
18. The present petition is allowed. Rule is made absolute.
Sd/-
(A. S. SUPEHIA, J) ABHISHEK Page 12 of 12 Downloaded on : Sun Oct 10 01:18:51 IST 2021