NEUTRAL CITATION
C/LPA/512/2018 JUDGMENT DATED: 09/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 512 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 17712 of 2006
With
CIVIL APPLICATION (DIRECTION) NO. 1 of 2023
In
R/LETTERS PATENT APPEAL NO. 512 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL Sd/-
and
HONOURABLE MR. JUSTICE N.V.ANJARIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or
any order made thereunder ?
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MITENBHAI GOPALBHAI SOLANKI
Versus
BHARATBHAI TRIKAMLAL PATEL SR.CLERK & 4 other(s)
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Appearance:
SHRI DIPAK R DAVE(1232) for the Appellant(s) No. 1,1.1
MS SHRUTI R. DHRUVE, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 4,5
SHRI ANVESH VYAS(5654) for the Respondent(s) No. 1
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NEUTRAL CITATION
C/LPA/512/2018 JUDGMENT DATED: 09/08/2023
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RULE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 09/08/2023
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. Heard Shri Dipak R. Dave, learned counsel appearing for the appellant, Shri Anvesh Vyas, learned counsel appearing for respondent No.1 and Ms. Shruti R. Dhruve, learned AGP appearing for respondent Nos.4 and 5.
2. The appellant herein seeks to challenge the order passed by the learned Single Judge dated 21.9.2017 in dismissing Special Civil Application No.17712 of 2006 filed by the appellant as original writ petitioner, challenging the order dated 17.2.2006 passed by the Gujarat Secondary Education Tribunal at Ahmedabad in Application No.457 of 1999. It has been brought before us that during the pendency of the instant appeal, the writ petitioner viz. the appellant herein had died and his heirs and legal representatives have been substituted to Page 2 of 17 Downloaded on : Sun Sep 17 00:49:23 IST 2023 NEUTRAL CITATION C/LPA/512/2018 JUDGMENT DATED: 09/08/2023 undefined maintain the instant appeal.
3. The facts relevant to decide the controversy at hand, in brief, are that the writ petitioner, viz. the appellant was appointed as Junior Clerk in the respondent institution in the year 1981. Respondent No.1, on the other hand, was appointed as Senior Clerk with effect from 1.8.1986. However, under an illegal arrangement by way of mutual consent, they (petitioner and respondent No.1) had exchanged their posts and the petitioner started serving as Senior Clerk with effect from June 1988 and in the same manner, respondent No.1 served as Junior Clerk from June 1988. The said mutual arrangement was intimated to the District Education Officer vide letter dated 23.5.1988, who had extended its consent to the inter- changeability of posts vide letter dated 2.6.1988 addressed to the Head Master of the institution.
4. In the order passed by the Tribunal, it is recorded that though respondent No.1 was shifted to the post of Junior Clerk from June 1988 under an illegal arrangement, but he continued to be paid basic salary of the post of Senior Clerk. The petitioner Page 3 of 17 Downloaded on : Sun Sep 17 00:49:23 IST 2023 NEUTRAL CITATION C/LPA/512/2018 JUDGMENT DATED: 09/08/2023 undefined
- appellant was also extended the salary of Senior Clerk from June 1988. The result was that though there was only one post of Junior Clerk and one post of Senior Clerk in the institution, but two employees continued to receive salary of the post of Senior Clerk, in view of the approval granted by the District Education Officer. It is, thus, rightly recorded by the Tribunal that the District Education Officer was responsible for the illegality, both in permitting to exchange the posts and continuing to pay salary of Senior Clerk to two employees against one post.
5. It is noted by the learned Single Judge that consequent to the revision of the pay scale on implementation of 4 th Pay Commission, realising that his pay had not been revised as per his post of Senior Clerk, the respondent no.1 filed application before the Tribunal in the year 1999. The claim of respondent No.1 before the Tribunal was that though he got shifted himself on the post of Junior Clerk in the basic pay scale, but his salary was required to be revised as that of Senior Clerk with effect from 1.1.1996 on implementation of 5th Pay Commission. It was also asserted that respondent No.1 had to give consent to the Page 4 of 17 Downloaded on : Sun Sep 17 00:49:23 IST 2023 NEUTRAL CITATION C/LPA/512/2018 JUDGMENT DATED: 09/08/2023 undefined aforesaid illegal arrangement under the pressure of the then Managing trustee who was father of the petitioner - appellant. The Tribunal, after exchange of affidavits between the parties, came to the conclusion that though the explanation offered by respondent No.1 in entering into a mutual settlement was unacceptable but since he was appointed on the post of Senior Clerk with effect from 1.8.1986, no illegality can be attached to the fact that he had received salary of Senior Clerk. However, the petitioner - appellant herein was not entitled either to be appointed on the post of Senior Clerk or to receive salary, as the arrangement by mutual consent dated 23.5.1988 was absolutely illegal, unjustified and unreasonable. The illegality which had commenced with the mutual settlement dated 23.5.1988 cannot be allowed to be perpetuated. The approval granted by the District Education Officer dated 2.6.1988 was held illegal and it was directed that respondent No.1 shall be treated as Senior Clerk from 1.8.1986 onwards, for all purposes. In the same manner, the petitioner - appellant shall be treated as Junior Clerk for all purposes duly appointed as such since 1981.
6. As regards the payment of benefits to respondent No.1 to Page 5 of 17 Downloaded on : Sun Sep 17 00:49:23 IST 2023 NEUTRAL CITATION C/LPA/512/2018 JUDGMENT DATED: 09/08/2023 undefined the post of Senior Clerk, it was held that he shall be treated as Senior Clerk notionally upto 8.12.1999, being previous day of filing of the petition before the Tribunal on 9.12.1999. The competent authorities were directed to assess the salary of respondent No.1 notionally, by calculating all the benefits which accrued in the interregnum. It was further directed that even if respondent No.1 had been paid less salary, he was not entitled for any further financial benefits uptil 8.12.1999, as he was party to the illegalities.
7. However, with regard to the petitioner - appellant, it was held that his salary is to be fixed notionally as Junior Clerk since 1981 and after the re-fixation, there shall be no recovery uptil 8.12.1999. However, the payments made to the petitioner after 8.12.1999, if in excess, may be recovered by complying the principles of natural justice. In the same manner, in case less salary had been paid to the petitioner as admissible to the post of Junior Clerk, difference may be paid.
8. The respondent authorities were, thus, directed to treat respondent No.1 as originally appointed as Senior Clerk and the Page 6 of 17 Downloaded on : Sun Sep 17 00:49:23 IST 2023 NEUTRAL CITATION C/LPA/512/2018 JUDGMENT DATED: 09/08/2023 undefined petitioner - appellant as Junior Clerk. It was also directed that both respondent No.1 and the petitioner - appellant shall be treated as duly promoted notionally as Head Clerk and Junior Clerk; respectively, from 20.10.1999 being the date of their respective promotion on the post of Head Clerk and Senior Clerk, as approved in the letter dated 29.4.2000 of the District Education Officer. It was further directed that both respondent No.1 and the petitioner - appellant shall be entitled for fixation of salary notionally on or before 30.4.2006 and the proposal, in this regard, be sent to the office of the District Education Officer along with the service book on or before the said date. The direction has further been issued that both respondent No.1 and the petitioner - appellant shall be required to give undertaking to cooperate in the exercise for computation of salary and that they shall discharge their duties as Senior Clerk and Junior Clerk; respectively.
9. The above noted directions contained in the order of the Tribunal have been approved by the learned Single Judge by holding that the contract or arrangement, if any, made between the management of the petitioner and respondent No.1 herein, Page 7 of 17 Downloaded on : Sun Sep 17 00:49:23 IST 2023 NEUTRAL CITATION C/LPA/512/2018 JUDGMENT DATED: 09/08/2023 undefined was null and void, in view of Section 37 of the Gujarat Secondary Education Act, 1971. The interference, if any, in the order of the Tribunal, will revive the illegal action of both the petitioner and respondent No.1, which would be prejudicial to the interest of law. On the plea of the petitioner that the Tribunal ought not to have entertained the application of respondent No.1 as it was marred by delay, it was held by the learned Single Judge that incorrect pay fixation will fall under the category of continuous wrong and the claim of respondent No.1 about the pay fixation and grant of higher pay scale on such pay fixation cannot be discarded on the ground of delay. It was further observed that so long as the employee is in service, the cause of action arises every month when he has been paid monthly salary. The only exception is the claim of affecting several others, which is not attracted in the instant case.
10. Having noted the above, we are required to note the arguments of the learned counsel appearing for the appellant who seeks to challenge the order passed by the Tribunal and the judgment of the learned Single Judge on the ground of delay and the plea of estoppel and acquiescence. It was argued that Page 8 of 17 Downloaded on : Sun Sep 17 00:49:23 IST 2023 NEUTRAL CITATION C/LPA/512/2018 JUDGMENT DATED: 09/08/2023 undefined there was an inordinate unexplained delay on the part of respondent No.1 to approach the Tribunal in raising the grievance with regard to the arrangement under which the petitioner - appellant had been appointed as Senior Clerk. With the passage of time, the petitioner - appellant had further been promoted to the post of Head Clerk and respondent No.1 to the post of Senior Clerk with effect from 1.3.1999. It was thus, the contention of the learned counsel appearing for the petitioner - appellant that there was no occasion for the Tribunal to interfere in the arrangement, for which no dispute was raised by respondent No.1 uptil 9.12.1999. With the order of the Tribunal, as affirmed by the learned Single Judge, the petitioner - appellant has been stagnated to the post of Junior Clerk though in the ordinary course, he would have been promoted to the post of Senior Clerk. The petitioner - appellant cannot be treated to have been appointed and continued on the post of Junior Clerk till his death. Even the benefit of revision of pay scale to the post of Junior Clerk has not been accorded to the petitioner as the Tribunal had directed for fixation of salary of the petitioner and respondent No.1 notionally. Page 9 of 17 Downloaded on : Sun Sep 17 00:49:23 IST 2023
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11. The conetntion is that the Tribunal has decided the matter on 17.2.2006 which was filed before it on 9.12.1999, in the meantime, the petitioner was promoted to the post of Head Clerk on 20.10.1999 and has continued to work on the said post. The Tribunal has, thus, erred in directing for recovery of salary, in excess to the post of Junior Clerk, received by the petitioner after 8.12.1999. In the writ petition, which was filed on 29.3.2006, this Court had granted interim order on 25.1.2007 to maintain status quo qua service condition of the petitioner. The same relief was granted in the instant appeal vide order dated 19.6.2019. The result is that the petitioner - appellant has been allowed to continue to work as Senior Clerk and Head Clerk, and to receive salary for the post in question. The learned Single Judge, while observing that no recovery was ordered by the Tribunal, has failed to take note that the Tribunal has ordered for recovery of excess salary after 8.12.1999. It is, thus, submitted that the petitioner cannot be held responsible for receipt of salary of the post of Senior Clerk and Head Clerk as he had actually worked on the said posts under the orders passed by this Court in the writ petition as well as in the instant Page 10 of 17 Downloaded on : Sun Sep 17 00:49:23 IST 2023 NEUTRAL CITATION C/LPA/512/2018 JUDGMENT DATED: 09/08/2023 undefined appeal. Any recovery at this stage of the proceeding would have serious adverse consequences for the heirs and legal representatives of the deceased petitioner - appellant No.1 herein who cannot be said to be at fault. The submission, thus, is that even if it was found by the Tribunal that mutual consent arrangement was illegal and the said view has been affirmed by the learned Single Judge, at least the writ petitioner - appellant was entitled to retain the payments made to him under the aforesaid arrangement and also the interim orders granted by this Court. With the dismissal of the writ petition affirming the order passed by the Tribunal, the direction of the Tribunal for recovery of excess salary paid to the petitioner after 8.12.1999 stood affirmed.
12. It was, thus, submitted by the learned counsel appearing for the petitioner - appellant that this is a case worth consideration invoking equitable jurisdiction of this Court.
13. Dealing with the above submissions, we are required to note that no infirmity can be attached to the order of the Tribunal which was passed to remedy an illegal situation. No Page 11 of 17 Downloaded on : Sun Sep 17 00:49:23 IST 2023 NEUTRAL CITATION C/LPA/512/2018 JUDGMENT DATED: 09/08/2023 undefined illegality can be found in the directions contained in the order of the Tribunal that the petitioner - appellant herein is entitled to salary fixed notionally as Junior Clerk since 1981, and that on re-fixation, there shall be no recovery of salary till 8.12.1999. The petitioner - appellant herein is also not aggrieved by this part of the order of the Tribunal. The grievance raised in the instant appeal, as per the submission of the learned counsel for the petitioner - appellant, on behalf of the heirs and legal representatives of the deceased petitioner - petitioner, is about the recovery of excess salary as a consequence of the order of the Tribunal, after 8.12.1999.
14. The fact remains that till the disposal of the application, filed on 9.12.1999 by respondent No.1 with the order dated 17.2.2006 of the Tribunal, the petitioner - appellant herein had continued to work as Senior Clerk from June 1988 and Head Clerk from 20.10.1999 and had received salary of the said posts. Even after the decision of the Tribunal, under the interim orders dated 25.1.2007 and 19.6.2019, the petitioner - appellant continued as Head Clerk and salary of the said post was paid to him till the date of his death. The recovery of payments received Page 12 of 17 Downloaded on : Sun Sep 17 00:49:23 IST 2023 NEUTRAL CITATION C/LPA/512/2018 JUDGMENT DATED: 09/08/2023 undefined by the petitioner - appellant, though made under an illegal arrangement made at the instance of the management of the school and the District Education Officer, but would have serious adverse consequence on the heirs and legal representatives of the deceased petitioner, who cannot be said to be at fault. Considering the peculiar situation of the instant case, in the above perspective, we are required to invoke our equitable jurisdiction to balance the equities between the parties.
15. Balancing the equities, we have reached at the conclusion that as payments had been made from public exchequer under an illegal arrangement and there cannot be any dispute about the fact that the petitioner - appellant was not entitled to hold the post of Senior Clerk, the affirmation of the order of the Tribunal that the petitioner - appellant shall continue to be treated as Junior Clerk since 1981, the date of his appointment, by the learned Single Judge, cannot be said to suffer from any error of law. We may further note that no error can be found in the direction issued by the Tribunal to treat the petitioner - appellant as Junior Clerk even from the date from which he was Page 13 of 17 Downloaded on : Sun Sep 17 00:49:23 IST 2023 NEUTRAL CITATION C/LPA/512/2018 JUDGMENT DATED: 09/08/2023 undefined promoted as Head Clerk, i.e. 20.10.1999 and further for fixation of his salary notionally. No infirmity can be found in the directions of the Tribunal to permit the petitioner - appellant to work as Junior Clerk from the date of its decision, i.e. 17.2.2006.
16. Only because of the fact that the petitioner has been allowed to continue to work as Head Clerk under the interim orders passed by this Court in the writ petition as well as in the appeal, he cannot be treated as having been continued legally on the post of Head Clerk. However, it is provided that no recovery of the payments already made to the petitioner - appellant for the post of Head Clerk, because of continuance on the said post till the date of his death, shall be made, but the terminal benefits admissible to the family members of the deceased petitioner - appellant cannot be computed treating the petitioner as having continued on the post of Head Clerk, legally. In case the terminal benefits or any other consequential benefits admissible to the family members of the deceased petitioner - appellant, are computed corresponding to the post of Head Clerk, as contended by the learend counsel for the petitioner - appellant, it would amount to perpetuate an Page 14 of 17 Downloaded on : Sun Sep 17 00:49:23 IST 2023 NEUTRAL CITATION C/LPA/512/2018 JUDGMENT DATED: 09/08/2023 undefined illegality, to which the petitioner himself was party.
17. For the aforesaid, while modifying the order of the Tribunal dated 17.2.2006 and the judgment impugned of the learned Single Judge, we provide that -
(i) The petitioner - appellant herein shall be treated to have continued to work as Junior Clerk notionally uptil the date of his death / retirement;
(ii) The excess payments already made to the petitioner -
appellant on account of continuance on the post of Head Clerk after 8.12.1999 under the interim orders of this Court, till the date of his death / retirement, shall not be recovered from the family members / heirs and legal representatives of the writ petitioner
- appellant;
(iii) However, the terminal benefits / family pension / other benefits, if any, admissible to the family members of the deceased petitioner, shall be computed treating the petitioner as having been continued on the post of Junior Clerk till the date of Page 15 of 17 Downloaded on : Sun Sep 17 00:49:23 IST 2023 NEUTRAL CITATION C/LPA/512/2018 JUDGMENT DATED: 09/08/2023 undefined his death. While making the said computation, the benefit of pay revision to the post of Junior Clerk, if available, as per law, shall be taken into account. Meaning thereby all the benefits as admissible to the post of Junior Clerk treating the petitioner as having worked on the said post notionally shall be duly computed and be adjusted against the excess payment already made to the petitioner. This would also facilitate the adjustment of the excess salary received by the petitioner - appellant herein on the post of Senior Clerk and Head Clerk to some extent, as directed by the Tribunal;
(iv) It is clarified that the computation of terminal benefits / family pension, etc., if any, admissible to the heirs and legal representatives of the deceased petitioner - appellant herein, shall be duly made, strictly in accordance with the above directions and in any case, as directed above, if some excess payment has already been made, the same shall not be recovered. However, the heirs and legal Page 16 of 17 Downloaded on : Sun Sep 17 00:49:23 IST 2023 NEUTRAL CITATION C/LPA/512/2018 JUDGMENT DATED: 09/08/2023 undefined representatives of the deceased petitioner - appellant herein will not be entitled to receive any further benefit on account of illegal continuance of the writ petitioner on the post of Senior Clerk or Head Clerk. They are only entitled for the terminal benefits admissible to a family member as per the legal provision, treating the petitioner - appellant herein having continued on the post of Junior Clerk till the date of his death.
18. Subject to the above, the appeal stands disposed of. In view of the disposal of appeal, civil application does not survive and is accordingly, disposed of.
(SUNITA AGARWAL, CJ ) (N.V.ANJARIA, J) Bharat Page 17 of 17 Downloaded on : Sun Sep 17 00:49:23 IST 2023