Gujarat High Court
M L Patel vs State Of Gujarat on 5 August, 2025
NEUTRAL CITATION
C/SCA/9015/2013 CAV JUDGMENT DATED: 05/08/2025
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Reserved On : 15/07/2025
Pronounced On : 05/08/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9015 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 3382 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 9149 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 9379 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 11624 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
Approved for Reporting Yes No ========================================================== M L PATEL & ANR.
Versus STATE OF GUJARAT & ORS.
========================================================== Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES for the Petitioner(s) No. 1 MR VAIBHAV A VYAS AND MR MAULIK NANAVATI for the Petitioner(s) No. 1.1 MS SURBHI BHATI, AGP for the Respondent(s) No. 1 RULE SERVED BY DS for the Respondent(s) No. 1,2,3,4,5 ========================================================== CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT COMMON CAV JUDGMENT
1. As common questions of facts and law are involved in these petitions, with the consent of learned advocates for the parties, all these petitions are disposed of by this common judgment.Page 1 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:57:33 IST 2025
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2. For the sake of convenience, the facts of Special Civil Application No.9015 of 2013 are narrated.
3. The prayer prayed for in these petitions is that the impugned order dated 18.5.2013 vide which the first higher grade scale of Rs.4,500-7,000 is granted to the petitioner by canceling the earlier order vide which the first higher pay scale of Rs.5000-8000 was granted to the petitioner with effect from 3.7.1996 and also vide which the second higher pay scale of Rs.5000-8000 is granted to the petitioner in place of second higher pay scale of Rs.6500- 10500 and direct the respondents authorities to grant second higher pay scale of Rs.6500-10500 to the petitioner with effect from 3.7.2011 with all consequential benefits. 3.1 At the time of issuance of notice, ad-interim relief was granted staying the implementation of the impugned order, which is extended from time to time and is in operation till date.
4. The facts leading to filing of these petitions are such the petitioner joined the services of the respondents authorities as Assistant Instructor on 11.7.1980 and in due course promoted to the post of Instructor on 3.7.1987; that th prior to implementation of the 5 pay commission and coming Page 2 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:57:33 IST 2025 NEUTRAL CITATION C/SCA/9015/2013 CAV JUDGMENT DATED: 05/08/2025 undefined into operation of the Gujarat Civil Services (Revision of Pay) Rules, 1998, (Rules of 1998 for short) the posts under the administrative control of the respondent no.3 were that of Assistant Instructor (Pay Scale Rs.1200-2040), Instructor (Pay Scale Rs.1350-2200), Rector cum Superintendent (Pay Scale Rs.1400-2300) and Technical Assistant (Pay Scale Rs.1640- 2900); thereafter the Rules of 1998 came to be implemented with retrospective effect from 1.1.1996 and the posts namely Instructor and Rector cum Superintendent referred to above were revised and merged together into an identical pay scale of Rs.4500-7000 and the pay scale of next higher post of Technical Assistant was revised to Rs.5500-9000; the posts as per the new set up were Assistant Instructor (4000-6000), Rector cum Superintendent (4500-7000), Technical Assistant (5500-9000). The person working on the post of Rector cum Superintendent would be entitled to the next higher pay scale of the post of Technical Assistant i.e. Rs.5500-9000 upon completion of 9 years of service.
4.1 It is stated that the petitioner, vide order dated 16.6.1997, was granted the first higher grade scale of Rs.1400-2300 (revised Rs.4500-7000) against the pay scale of Rs.1350-2200, thereafter the petitioner was granted the first higher grade pay scale of Rs.5000-8000 (pre-revised Rs.1640- 2900) as per the schedule vide order dated 21.2.1998, Page 3 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:57:33 IST 2025 NEUTRAL CITATION C/SCA/9015/2013 CAV JUDGMENT DATED: 05/08/2025 undefined thereafter, the said order was revoked vide order dated 27.11.2000. The petitioner was made to understand that since the new set up is not approved by the State Government, the benefit of higher grade scale can be granted only after the new set up is approved by the government; the new set up was approved by the government with effect from 1.1.1996 vide Government Resolution dated 3.10.2009. 4.2 The petitioner pursuant to the said resolution, made a representation to the respondent authority on 29.10.2009 requesting the respondent authority to grant first higher grade scale of Rs.5500-9000 and second higher grade scale of Rs.6500-10500 to the petitioner from the date of his entitlement; thereafter, the revised pay scale of Rs.5000-8000 was granted to the petitioner as first higher grade scale vide revised order dated 7.1.2011 with effect from 3.7.1996 and the arrears were also paid; that the grievance of the petitioner is that the petitioner working on the post of Rector cum Superintendent ought to have been granted the first higher grade scale of the next promotional post of Technical Assistant i.e. Rs.5500-9000 instead of Rs.5000-8000 as per the Schedule.
4.3 Special Civil Application No.3382 of 2013 is filed by the very petitioner of Special Civil Application No.9015 of Page 4 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:57:33 IST 2025 NEUTRAL CITATION C/SCA/9015/2013 CAV JUDGMENT DATED: 05/08/2025 undefined 2013, wherein the action of the respondent authorities of seeking to withdraw the first higher pay scale of Rs.5000- 8000 already granted to the petitioner was also challenged and the petitioner had also challenged the action of the respondent authorities of not granting the second higher pay scale of Rs.6500-10500 to the petitioner, though he is entitled for the same on completion of 24 years of service on 3.7.2011 on the post of Rector cum Superintendent. That the petitioner had preferred Special Civil Application No.85 of 2006 along with other petitioners, challenging the action of the respondent authorities of not granting the benefit of first higher grade scale of Rs.5500-9000 to the petitioner; the same was withdrawn to make representation to the respondent authorities on 25.1.2006; a detailed representation dated 16.10.2006 was made to the respondent authorities; as the same was not decided, the petitioners once again filed Special Civil Application No.28317 of 2007 and cognate matters, wherein the respondent authorities were directed to decide the representation made by the petitioner as early as possible within a period of two months from the date of receipt of the order; the respondent authorities passed the order dated 5.1.2008 observing that the matter pertaining to the grant of higher grade scale to the petitioners is under the consideration of the Pay Anomaly Committee and till the decision is taken by the said Committee, the benefit of Page 5 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:57:33 IST 2025 NEUTRAL CITATION C/SCA/9015/2013 CAV JUDGMENT DATED: 05/08/2025 undefined higher grade scale of Rs.5500-9000 cannot be granted to the petitioner and that the request of the petitioner for grant of higher grade scale would be reviewed after the decision is taken by the Pay Anomaly Committee for increasing the pay scale of Rector cum Superintendent, vide order dated 5.1.2008; the said decision was challenged by way Special Civil Application No.9669 of 2009, which came to be disposed of vide order dated 8.10.2009 directing the Pay Anomaly Committee to take expeditious decision; again a petition for the same cause was filed before this Court being Special Civil Application No.953 of 2013, which was withdrawn with a liberty to file petition for the same cause of action after obtaining the requisite documentary evidences. 4.4 Thereafter, the necessary documents were obtained by the petitioner under the Right to Information Act and had filed Special Civil Application No.3382 of 2013; thereafter the petitioner was called vide letter dated 16.3.2013 to remain personally present on 22.3.2013 for reconsideration of the first higher pay scale of Rs.5000-8000 granted to the petitioner; thereafter, considering the submissions, the authorities had cancelled the order granting the first higher pay scale of Rs.5000-8000 and in its place first higher pay scale of Rs.4500-7000 is ordered to be granted to the petitioner with effect from as the first higher grade pay scale was granted Page 6 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:57:33 IST 2025 NEUTRAL CITATION C/SCA/9015/2013 CAV JUDGMENT DATED: 05/08/2025 undefined to the petitioner and consequential recovery is also sought to be made; further the authorities granted the second higher pay scale of Rs.5000-8000 (which was already granted as first higher pay scale with effect from 3.7.1996) instead of granting the second higher pay scale of Rs.6500-10500 to the petitioner with effect from 3.7.2011, vide the impugned order dated 18.5.2013, which is challenged by way of this petition.
5. Heard learned advocates for the parties. 5.1 Learned advocate for the petitioners, in the above factual background, submitted that the authorities themselves are not clear as to which higher pay scale is to be granted to the petitioner, as earlier on two occasions, the first higher pay scale of Rs.5000-8000 was granted to the petitioner vide orders dated 21.2.1998 and 7.1.2011; that the petitioner was rightly granted first higher pay scale of Rs.5000-8000 with effect from 3.7.1996, and therefore the action of withdrawing the same is illegal and arbitrary; that the persons who are working in other departments of the government and who are similarly situated to the petitioner are granted the first higher grade scale of Rs.5500-9000, whereas the petitioner is granted the first higher grade scale of Rs.4500-7000; therefore the action of the respondent authorities in not granting the same and seeking recovery of the amount already paid to the Page 7 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:57:33 IST 2025 NEUTRAL CITATION C/SCA/9015/2013 CAV JUDGMENT DATED: 05/08/2025 undefined petitioner is illegal, arbitrary and against the provisions of Rules; that the action of the respondent authorities of granting second higher pay scale of Rs.5000-8000 (which was already granted as first higher pay scale with effect from 3.7.1996) instead of granting second higher pay scale of the next promotional post of the cadre of Class-II (Assistant Director, Industrial Promotional Officer) in the pre-revised pay scale of Rs.6500-10500 to the petitioner with effect from 3.7.2011 i.e. upon completion of 24 years of service on 3.7.2011 on the post of Rector cum Superintendent. 5.2 Learned advocate for the petitioners has relied on similarly situated persons of Labour and Employment Department and submitted that the benefit of first higher pay scale of Rs.5500-9000 was granted to those employees; relying on the decision of this court in Special Civil Application No.24263 of 2006 and allied matters, he submitted that the petitioners therein who were working a Lino Operators were granted the first higher pay scale of post of Compose Overseer of Rs.1400-2300 (as pay scale of the posts of Lino Operator was made equivalent to that of Compose Foremen/Lino Mechanic in ROP Rules of 1987), the said pay scale of Rs.1400-2300 was withdrawn and even the consequential recovery was ordered was challenged which came to be allowed by the learned Single Judge vide Page 8 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:57:33 IST 2025 NEUTRAL CITATION C/SCA/9015/2013 CAV JUDGMENT DATED: 05/08/2025 undefined judgment and order dated 19.7.2013, Letters Patent Appeal No.287 of 2014 against the said order was dismissed by Hon'ble Division Bench of this Court vide judgment dated 20.3.2014 and the SLP No.27629 of 2014 and allied petitions came to be dismissed by the Hon'ble Supreme Court. He, therefore, prayed to allow these petitions.
6. Per contra, learned AGP submitted that Rules of 1998 were introduced with retrospective effect from 1.1.1996; that in the said rules, the pay scale of instructor cadre i.e. the post in which the petitioner was earlier working and the cadre of Rector cum Superintendent which is the next higher post in cadre of instructor came to be merged and both the cadres are entitled to the pay scale of rs.4500-7000. The consolidated cadre was named as Rector cum Superintendent; that on opinion being sought from the State Government, the State Government, on the basis of the Government Resolution dated 16.8.1994, para 3(8) and 2.7.2007, para 2(16)(17) issued by the Finance Department has opined that since the changes in the promotional post has been introduced after 1.6.1987, in such cases the higher pay scale is available to the employee according to the schedule and pay scale of promotional posts shall be available only from the actual date of promotion; that on the basis of the said Government Resolution dated 16.8.1994 and 2.7.2007, in the present case, Page 9 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:57:33 IST 2025 NEUTRAL CITATION C/SCA/9015/2013 CAV JUDGMENT DATED: 05/08/2025 undefined the post of Instructor which is in the pay scale of Rs.4500- 7000 and the next promotional post of Rector cum Superintendent is also having pay scale of Rs.4500-7000, the petitioner is entitled to get the said pay scale of Rs.4500- 7000; therefore, the respondent authority has committed an error while granting pay scale of Rs.5000-8000 to the petitioner; when the error came to knowledge of the authorities, the petitioner was called upon to be heard in person and after that the impugned order is passed. She submitted that in a similar case being Special Civil Application No.7371 of 1995 was filed which was dismissed by this Court and the matter was carried further to the Hon'ble Division Bench vide Letters Patent Appeal No.931 of 2013 and the same also was dismissed. She has also submitted that in the case of Chandi Prasad Uniyal and Ors. V/s State of Uttarakhand and Ors., reported in AIR 2012 SC 2951, the Hon'ble Apex Court has held that any excess payment made due to wrong/irregular pay fixation is always subject to recovery and the same can be recovered and also that no one can enjoy what he/she is not legally entitled and therefore, the recovery is not bad in law. She, therefore, prayed to dismiss the petition as the impugned order is not bad in law.
7. I have heard learned advocates for the parties and Page 10 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:57:33 IST 2025 NEUTRAL CITATION C/SCA/9015/2013 CAV JUDGMENT DATED: 05/08/2025 undefined also perused the material placed on record.
8. At the outset, Special Civil Application No.3382 of 2013 is required to be disposed of as the prayer is merged into the prayer of Special Civil Application No.9015 of 2013, as per the say of the petitioner himself as Special Civil Application No.3382 of 2013, wherein the action of the respondent authorities of seeking to withdraw the first higher pay scale of Rs.5000-8000 already granted to the petitioner was also challenged and the petitioner had also challenged the action of the respondent authorities of not granting the second higher pay scale of Rs.6500-10500 to the petitioner, though he is entitled for the same on completion of 24 years of service on 3.7.2011 on the post of Rector cum Superintendent and during the pendency of the said petition, the impugned order is passed, therefore Special Civil Application No.9015 of 2013 is filed.
9. From the material placed on record, it transpires that the petitioners joined the services on 11.7.1980 on the post of Assistant Instructor; the petitioner was granted promotion on 3.7.1987 as Instructor; on completion of 9 years in the promotion cadre on 3.7.1996, the office order came to be passed on 16.6.1997 for granting first higher pay scale of Rector as 1400-2300 with effect from 3.7.1996; thereafter on Page 11 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:57:33 IST 2025 NEUTRAL CITATION C/SCA/9015/2013 CAV JUDGMENT DATED: 05/08/2025 undefined the implementation of the fifth pay commission on 1.1.1996, the pay of the petitioner was revised to Rs.5000-8000 instead of Rs.4500-7000 as the pay scales of the post of the Instructor and Rector-cum-Superintendent came to be merged and when the mistake was realized, the office order was passed on 27.11.2000 reverting the first higher pay scale to 4500-7000; thereafter on 7.1.2011, again another order came to be passed revising first higher pay scale to Rs.5000-8000 and again the said wrong order was revised to 18.5.2013 on the basis of the Government Resolution dates 16.8.1994 and 2.7.2007, more particularly, clause 2.17.
th
10. The pay scales of 4 pay commission as on th 1.1.1986 and 5 pay commission as on 1.1.1996 for the posts are as under:
th th
4 pay 1.1.1986 5 pay 1.1.1996
Ass.Instructor 1200-2040 4000-6000
Instructor 1350-2200
Rector cum1400-2300 4500-7000
Superintendent
5000-8000
Tech.Assistance 1640-2900 5500-9000
6500-10500
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NEUTRAL CITATION
C/SCA/9015/2013 CAV JUDGMENT DATED: 05/08/2025
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11. Clause 2.17 of the Government Resolution dated 2.7.2007 reads as under:
"(૧૭) જે જગ્યાના બઢતીના માળખામાં તા.૧/૬/૮૭ પછી ફેરફાર કરવામાં આવેલો હોય તેવા કિસ્સામાં (ફેરફાર પહેલા બઢતીની જે જગ્યાનું પગાર ધોરણ મળતું હતું તે ઉચ્ચત્તર પગાર ધોરણ તરીકે ચાલુ રહેશે . ફેરફાર પછીની બઢતીની જગ્યાનું પગાર ધોરણ કર્મચારીને જયારે ખરેખર બઢતી મળે ત્યારે જ મળશે."
12. In view of the above, it is clear that the petitioner was given promotion and placed in the pay scale of 1400-2300 after he completed 9 years of service in the cadre of Instructor as was prevailing at the relevant time i.e. th 3.7.1996. However, when the 5 pay commission was implemented from 1.1.1996 and both cadres of Instructor and Rector cum Superintendent were merged into one and common pay scale of 4500-7000 and therefore he ought to have been placed there, however, it seems that by mistake, the petitioner was given the pay scale of Rs.5000-8000 and therefore the same was withdrawn. It is clear that the petitioner has got the salary in the pay scale of Rs.1350-2200 when he was serving as an Instructor and on completion of 9 years in the service of Instructor, he just got the pay scale of Rs.1400-2300 which means that he was placed in the first higher pay scale and on the basis of subsequent development Page 13 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:57:33 IST 2025 NEUTRAL CITATION C/SCA/9015/2013 CAV JUDGMENT DATED: 05/08/2025 undefined of merger of both the cadres, the petitioner got the benefit of the pay scale of Rs.4500-7000, which means that though he was not initially appointed on the post of Rector cum Superintendent, he got the pay scale of the said post. The second higher pay scale of Rs.5000-8000 was given from the date of his entitlement. The orders granting wrong higher pay scales were passed by mistake and therefore they are revoked on realization of the mistake.
13. Thereafter, after several round of litigations and communications, on receiving clarification from the State Government with regard to the same, the impugned order is passed, which, in the opinion of this Court, after considering the entire material on record, cannot be said to be unjust or unfair or illegal, which requires any interference by this Court in these petitions. The impugned order is passed on the basis of the Government Resolutions which is a policy decision and the policy decisions which are best left within the domain of executive and therefore, a challenge to such economic policy of the State Government deserves to be dealt with circumspection and the scope of judicial review would also therefore be limited.
14. In the case of Chandi Prasad Uniyal (supra), it is held in paragraph nos.15 and 16 as under:
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"15. We are not convinced that this Court in various judgments referred to hereinabove has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired on or the verge of retirement or were occupying lower posts in the administrative hierarchy.
16. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over- payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers may be due to various reasons like negligence, carelessness, collusion, favoritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer an the payee are at fault, then the mistake is mutual. Payment are being effected in many situations without any authority of law and payments have been received by the recipients Page 15 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:57:33 IST 2025 NEUTRAL CITATION C/SCA/9015/2013 CAV JUDGMENT DATED: 05/08/2025 undefined also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment."
15. In view of the above discussion, this Court does not find any unjustness, illegality, or arbitrariness in the impugned order, which needs any interference by this Court.
16. Accordingly, Special Civil Application No.3382 of 2013 is disposed of. Rest of the petitions are required to be dismissed. Accordingly, dismissed. Notice/rule stands discharged. Interim relief, if any, stands vacated.
(SANDEEP N. BHATT,J) SRILATHA Page 16 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:57:33 IST 2025