Gujarat High Court
Madhusudan Devdasbhai Baraiya vs State Of Gujarat on 1 July, 2025
NEUTRAL CITATION
C/SCA/16397/2018 ORDER DATED: 01/07/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16397 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 16504 of 2018
==========================================================
MADHUSUDAN DEVDASBHAI BARAIYA & ORS.
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR GAURAV CHUDASAMA(5660) for the Petitioner(s) No. 1,2,3
PETITION/APPEAL WITHDRAWN/DISMISSED for the Petitioner(s) No. 4
GIRISH K PATEL(2770) for the Respondent(s) No. 3,4
MS SURBHI BHATI, AGP for the Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/07/2025
ORAL ORDER
1. Since the prayers and issues involved in the present petitions are identical in nature, hence, at the request of learned advocates for the parties, the matters are taken up for final consideration and Special Civil Application No.16397 of 2018 is considered as lead matter and all the matters are heard together.
2.1 The present petition i.e. Special Civil Application No.16397 of 2018 is filed for seeking the following reliefs:
"A. This petition be admitted and allowed.Page 1 of 12 Uploaded by U. SRILATHA(HC00185) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:49:15 IST 2025
NEUTRAL CITATION C/SCA/16397/2018 ORDER DATED: 01/07/2025 undefined B. Your Lordships be pleased to issue a writ of Mandamus or any other appropriate writ, order to quash and set aside the communication Dt.25-09-2018 passed by the respondent no.4 for rejecting the order of the Fixation of pay with increment and recovering the amount paid of increment under the said fixation of pay to the present petitioners and further be pleased to direct the respondent no. 2 to 4 to continue to give increment as per Rule 11 (1) of the Gujarat Civil Services (Pay) Rules, 2002.
C. Pending hearing and final disposal of this Petition the respondents may be directed to stop further implementation of communication/order Dt.25/09/2018 passed by the respondent no.4.
D. Any other relief that may be deemed just, proper and necessary may also be kindly granted."
2.2 Another present captioned petition i.e. Special Civil Application No.16504 of 2018 is filed for seeking the following reliefs:
"A. This petition be admitted and allowed.
B. Your Lordships be pleased to issue a writ of Mandamus or any other appropriate writ, order to Page 2 of 12 Uploaded by U. SRILATHA(HC00185) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:49:15 IST 2025 NEUTRAL CITATION C/SCA/16397/2018 ORDER DATED: 01/07/2025 undefined quash and set aside the communication Dt.10-10-2018 passed by the respondent no.4 for rejecting the order of the Fixation of pay with increment and recovering the amount paid of increment under the said fixation of pay to the present petitioners and further be pleased to direct the respondent no. 2 to 4 to continue to give increment as per Rule 11 (1) of the Gujarat Civil Services (Pay) Rules, 2002.
C. Pending hearing and final disposal of this Petition the respondents may be directed to stop further implementation of communication/order Dt.10-10-2018 passed by the respondent no.4.
D. Any other relief that may be deemed just, proper and necessary may also be kindly granted."
3. Brief facts of the case as per the case of the petitioners in Special Civil Application No.16397 of 2018 are as under:
3.1 The petitioners herein have been appointed as Teachers in Primary Section in different districts of the state.
Thereafter the petitioners have cleared their HTAT examination and therefore, the petitioners become eligible for the appointment of the Head Teacher. It is the case of the petitioners in this petition that the petitioners have applied Page 3 of 12 Uploaded by U. SRILATHA(HC00185) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:49:15 IST 2025 NEUTRAL CITATION C/SCA/16397/2018 ORDER DATED: 01/07/2025 undefined for the post the of head teacher and the petitioners have been appointed as Head Teacher in the Junagadh District and the respondent no.3 has issued appointment letters to the present petitioners. It is further the case of the petitioners in this petition that thereafter the respondent no.3 and 4 has fixed the pay with the increment as per the Gujarat Civil Services (Pay) Rules, 2002 and accordingly, the respondent no.3 authority has communicated with all Taluka Panchayat Offices vide letter dated 11-11-2013 and accordingly, the respondent nos.3 and 4 has implemented the communication and passed an order of fixation of pay with increment.
3.2 It is further the case of the petitioners in this petition that thereafter the respondent no.4, has decided to cancel the earlier order for fixation of pay with increment by passing general order dated 25.09.2018, which was received by the petitioners on 11.11.2013. It is further the case of the petitioners in this petition that thereafter the petitioners have made representation to the the respondent no.3 that as per the Rule 28 of Gujarat Civil Service (Pay) Rules, 2002, the respondent no.4 cannot recover the amount from the present petitioner, but till date the respondent no.3 has not considered the said representation and started deducting amount from the salary of the present petitioners. Thereafter, Page 4 of 12 Uploaded by U. SRILATHA(HC00185) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:49:15 IST 2025 NEUTRAL CITATION C/SCA/16397/2018 ORDER DATED: 01/07/2025 undefined the petitioners have filed one representation also to the respondent no.4 for not to recover the amount of increment awarded to the present petitioners but till date no reply has been given by the respondent no.2 herein. Hence, the present petition has been preferred.
4. Heard Mr. Gaurav Chudasama, learned advocate for the petitioners, Mr.Girish Patel, learned advocate for the respondent Nos.3 and 4 and Ms.Surbhi Bhati, learned AGP for the respondent Nos.1 and 2 - State.
5.1 Mr. Gaurav Chudasama, learned advocate for the petitioners has submitted that the petitioners are class-III employees and his pay is fixed by the respondent - authority, which is thereafter found that such pay is wrongly fixed under Rule 11(1) of the Gujarat Civil Services (Pay) Rules, 2002 and, therefore, the authority has sent communications dated 25.4.2018 and ___.10.2018 (Annexure-G issued by respondent no.4) in Special Civil Application No.16397 of 2018 and communications dated 10.10.2018 in Special Civil Application No.16504 of 2018, by which the amount of increment paid under the said fixation of pay to the petitioner is directed to be recovered.
5.2 By referring to the affidavit-in-reply filed by the Page 5 of 12 Uploaded by U. SRILATHA(HC00185) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:49:15 IST 2025 NEUTRAL CITATION C/SCA/16397/2018 ORDER DATED: 01/07/2025 undefined respondent, he has fairly submitted that he is not pressing any other relief as prayed in the present petition except the aspect of recovery, which is not permissible considering Rule 28 of the Gujarat Civil Services (Pay) Rules, 2002. In support of his submissions, he has relied upon the decision of the Hon'ble Apex Court in the case of State of Punjab & Ors vs Rafiq Masih (White Washer) reported in (2015) 4 SSC 334 as well as the judgment of Co-ordinate Bench of this Court in the case of Harishchandra Jagannath Brahmbatt vs. State of Gujarat reported in 2019 (0) AIJEL-HC 241116, such recovery cannot be permitted where the authorities have committed in fixation of higher pay scale and, therefore, he pays to allow this petition to this limited extent against the recovery of the amount against the present petitioners.
6. Per contra, Mr.Girish K Patel, learned advocate for the respondent Nos.3 and 4 has referred to the averments made in the affidavit-in-reply and the documents annexed thereo and also relied upon the Rule 11(1) of the Gujarat Civil Services (Pay) Rules, 2002, and has submitted that the order passed by the authority is just and reasonable and the petitioners, who are already in service and received benefit for first and second pay scale are liable to the refunded the amount wrongfully derived by them. He is further submitted that therefore the authority has rightly directed them to Page 6 of 12 Uploaded by U. SRILATHA(HC00185) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:49:15 IST 2025 NEUTRAL CITATION C/SCA/16397/2018 ORDER DATED: 01/07/2025 undefined refund the amount and communication for recovery of such amount is just and proper and, therefore, no interference is required to be called for by this Court.
7. Ms.Surbhi Bhati, learned AGP for the respondent Nos.1 and 2 - State has also relied on the averments made in the affidavit-in-reply and documents annexed thereto and has submitted that though the State Authority has limited role in the present proceeding, he is adopting the argument made on behalf of the learned advocate for the respondent - Panchayat and has submitted that no replied as prayed in the present petition can be granted to the present petitioner. 8.1 I have considered the rival submissions made at the bar by the respective parties. It transpires that the petitioners have been appointed as teachers in Primary Section in different districts of the state and thereafter they have cleared their HTAT examination and therefore, the petitioners become eligible for the appointment of the Head Teacher and subsequently, the petitioners have applied for the post of head teacher and the petitioners have been appointed as Head Teacher in the Junagadh District and the respondent no.3 has issued appointment letters to the present petitioners. It also transpires that thereafter the respondent nos.3 and 4 has fixed the pay with the increment as per the Gujarat Page 7 of 12 Uploaded by U. SRILATHA(HC00185) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:49:15 IST 2025 NEUTRAL CITATION C/SCA/16397/2018 ORDER DATED: 01/07/2025 undefined Civil Services (Pay) Rules, 2002 and accordingly, the respondent No.3-authority has communicated with all concerned the Taula Panchayat Offices vide letter dated 11.11.2013 and accordingly, the respondent nos.3 and 4 has implemented the communication and passed and order of fixation of pay with increment. Thereafter, the respondent No.4 decided to cancel the earlier order for fixation of pay with increment by passing General Order 25.09.2018, which was received by the petitioners on 11.11.2013. Therefore, the present petition is filed by the present petitioners whereby the respondent - Authority has taken specific stand by referring to Rule 11(1) of the Gujarat Civil Services (Pay) Rules, 2002, which reads as under:
"11. Fixation of pay on appointment to another post involving assumption, duties or responsibilities of greater importance: (1) Where a Government employee holding a post in a substantive, temporary or officiating capacity, is promoted or appointed in a substantive, temporary or officiating capacity to higher post in normal course and the appointment to such post involves assumption of duties or responsibilities of greater importance than those attached to the post originally held by him, his initial pay in the time scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing Page 8 of 12 Uploaded by U. SRILATHA(HC00185) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:49:15 IST 2025 NEUTRAL CITATION C/SCA/16397/2018 ORDER DATED: 01/07/2025 undefined his pay in respect of the lower post by one increment at the stage at which such pay has accrued, and, in the case of a Government employee drawing pay at the maximum of the pay-scale, by an amount equivalent to the last increment.
Note: "Pay" in respect of lower post referred to in the above sub-rule shall mean the officiating or substantive pay whichever is higher."
6.2 Considering the submissions of learned advocate for the petitioners that in view of this, other prayers may not survive, but, on the aspect of recovery pursuant to the amounts, which are already paid to the present petitioners, Rule 28 of the Gujarat Civil Services (Pay) Rules, 2002 will come to the rescue of the present petitioners, which reads as under:
"Rule 28. Pay when promotion or appointment is found to be erroneous:-
(1) Notwithstanding the provisions contained in these rules, the pay of a Government employee whose promotion or appointment to a post is found to be or to have been erroneous on the basis of facts, e.g. incorrect seniority, failure to apply any relevant rules or orders correctly, shall be regulated in accordance with the general or special orders issued by the Page 9 of 12 Uploaded by U. SRILATHA(HC00185) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:49:15 IST 2025 NEUTRAL CITATION C/SCA/16397/2018 ORDER DATED: 01/07/2025 undefined Government in this behalf.
(2) When any rule or order regulating pay is made with retrospective effect, the pay of a Government employee affected by such order or rule, shall be fixed notionally as if the rule or order were applicable in his case but the Government employee concerned shall not be called upon to refund the resultant amount of over payment on account of pay and allowances;
Provided that in the case where the erroneous promotion or appointment was given on the basis of false information fur- nished by the concerned Government employee; depart- mental action shall be taken against him and the resultant amount of over payment on account of pay and allowances shall also be recovered from him. (emphasis supplied)." 6.3 For considering the said submission, it is fruitful to refer the judgment of Co-ordinate Bench of this Court in the case of Harishchandra Jagannath Brahmbatt vs. State of Gujarat reported in 2019 (0) AIJEL-HC 241116, more particularly, paragraph no.14 is relevant, which is as under:
"14. In the present case, even if the State Government was to act on such undertaking, it should have been within a reasonable period when the Local Fund Audit had approved the pay fixation. The impugned order Page 10 of 12 Uploaded by U. SRILATHA(HC00185) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:49:15 IST 2025 NEUTRAL CITATION C/SCA/16397/2018 ORDER DATED: 01/07/2025 undefined has been passed after a span of almost 12 years, after the pay fixation was approved by the Local Fund Audit and entries to that effect were also made in the service book. Thus, the petitioner who is a retired employee was not paid the final retirement benefits due to impugned orders passed by the respondents effecting recovery of the amount of pay fixation, which was conferred to him since 1998. The State authorities being a model employer has to act very fairly and reasonably and has to see that a retired employee is not being harassed in such a manner due to their inaction. The impugned orders are replete with impropriety and the insouciant attitude shown by the respondents towards a retired employee requires to be highly deprecated."
6.4 Considering this aspect and considering the fact that learned advocate for the petitioners is not pressing any other prayer prayed in the present petitions except the prayer for directing the respondent not to recover the amount and considering the provisions of Rule 28 of the Gujarat Civil Services (Pay) Rules, 2002, the case of the petitioners is required to be considered, by considering the leading judgment of the Hon'ble Apex Court on the aspect of recovery in the case of State of Punjab & Ors vs Rafiq Masih (White Washer) reported in (2015) 4 SSC 334, I am of Page 11 of 12 Uploaded by U. SRILATHA(HC00185) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:49:15 IST 2025 NEUTRAL CITATION C/SCA/16397/2018 ORDER DATED: 01/07/2025 undefined the that the present petition is required to be partly allowed as the petitioners have not pressed the present petition for the other prayers mentioned in the present petition in the present petition. The present petition is required to be considered on the aspect of recovery of amount considering above-all, as well as considering the affidavit-in-reply filed by the respondent - authority whereby there is no explanation that why Rule 28 of the Gujarat Civil Services (Pay) Rules, 2002 is not applicable to the facts of the present case.
7. In view of the above, the present petitions are partly allowed to the aforesaid extent.
8. No recovery shall be made pursuant to the communications dated 25.9.2018 and __.10.2018 (Annexure G issued by respondent no.4) in Special Civil Application No.16397 of 2018 and communications dated 10.10.2018 in Special Civil Application No.16504 of 2018 against the present petitioners by the respondent - authority.
(SANDEEP N. BHATT,J) SRILATHA Page 12 of 12 Uploaded by U. SRILATHA(HC00185) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:49:15 IST 2025