Gujarat High Court
Hussainbhai Jusabbhai Hala vs State Of Gujarat on 9 May, 2025
NEUTRAL CITATION
C/SCA/11148/2015 JUDGMENT DATED: 09/05/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11148 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE D.N.RAY
==========================================================
Approved for Reporting Yes No
==========================================================
HUSSAINBHAI JUSABBHAI HALA & ANR.
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR PH PATHAK(665) for the Petitioner(s) No. 1.1
MS VANITA BHARWANI, AGP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 1,2,3
==========================================================
CORAM:HONOURABLE MR.JUSTICE D.N.RAY
Date : 09/05/2025
ORAL JUDGMENT
1. Heard learned advocate Mr.P.H.Pathak for the Petitioner and learned Assistant Government Pleader Ms.Vanita Bharwani for the Respondent No.1.
2. Rule returnable forthwith. Learned Assistant Government Pleader Ms.Vanita Bharwani waives service of notice of rule on behalf of the Respondent No.1.
3. The Petitioner came to be appointed as Police Constable on Page 1 of 15 Uploaded by VARSHA DESAI(HC01393) on Fri May 16 2025 Downloaded on : Sat May 17 11:31:28 IST 2025 NEUTRAL CITATION C/SCA/11148/2015 JUDGMENT DATED: 09/05/2025 undefined 16.04.1969. Eventually, on 01.01.1981, the Petitioner was promoted as Assistant Sub Inspector ("ASI" for the short) at Rajkot (Rural modal operative bureau). Upon completion of 9 years in the said post, the Petitioner was granted the higher grade of pay on the said post by the order dated 10.07.1993 but with effect from 01.01.1990 i.e. after completion of 9 years from the promotion to the post of Assistant Sub-Inspector. Eventually, the Petitioner retired on 31.12.2007 as Assistant Sub-Inspector and on 17.06.2009 i.e. nearly after 2 years after the retirement of the Petitioner, the Superintendent of Police ("SP" for short), Rajkot (Rural) sought to recover a sum of Rs.3,52,598/- from the Petitioner on the ground that the same was mistakenly paid and then the Petitioner was not entitled to the higher pay. Upon a representation dated 30.06.2009 to the Respondents objecting to the said recovery on the ground that, by the order dated 07.09.1993, 61 ASIs were granted the higher pay scale, the SP, Rajkot (Rural) recommended the cancellation of the recovery order dated 17.06.2009. However, since the benefits of regular pension and other terminal benefits like gratuity etc. were not extended to the Petitioner, a representation dated 09.09.2011 was made by the Petitioner to the SP, Rajkot (Rural). Eventually, the Petitioner referred SCA No. 13444 of 2013 seeking the following reliefs:
"22 (A) This Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and / or Certiorari or other appropriate writ, order or direction, declaring the impugned decision of the Respondent authorities withdrawing the benefits of higher scale of pay and affecting recovery from the retirement dues as illegal, unjust, arbitrary, non-application of mind and violative of Article 14 and 16 of the Constitution of India and be pleased to quash set and aside the same and direct the respondents to grant all the benefits to the Petitioner as if no adverse order of withdrawing the higher scale of pay was issued against he Petitioner and pay the arrears of Page 2 of 15 Uploaded by VARSHA DESAI(HC01393) on Fri May 16 2025 Downloaded on : Sat May 17 11:31:28 IST 2025 NEUTRAL CITATION C/SCA/11148/2015 JUDGMENT DATED: 09/05/2025 undefined amount with 12% interest.
(B) Be pleased to declare the decision of Respondent authorities of withdrawing the higher scale of pay, granted to the Petitioner as illegal and declare that the Petitioner was entitled to yet the benefits of higher scale of pay and set aside the decision of the respondents and grant all the consequential benefits to the Petitioner."
4. By the order dated 16.01.2015, the following order was passed:
"The impugned order dated 17.6.2009 is set aside on the said limited ground and the matter is remitted to the competent authority for fresh proceedings and fresh order. It would be open to the competent authority of the Respondent to take appropriate action and decision in the matter of higher pay scale which was, according to the respondents, granted erroneously to the Petitioner, however, after issuing appropriate notice and after calling Petitioner's explanation and after considering the Petitioner's explanation. After following such procedure the Respondent authority may pass appropriate reasoned and speaking order. With the aforesaid clarification the impugned order is set aside and the matter is remitted to the competent authority. It is clarified that this order shall not be construed as expression of any view or opinion of the Court on merits of the case. It is also clarified that the Court has not entered into merits of the matter and has not examined the justification of the respondent's action оr Petitioner's allegations and claimr Petitioner's allegations and claim on merits and it is only on ground of violation of principles of natural justice that the Court has entertained present petition. Therefore the competent authority of the Respondent shall independently pass appropriate fresh and reasoned order in accordance with law and applicable rules. With the aforesaid clarification the petition is disposed of accordingly".
5. Thereafter, the Petitioner represented before the respondents by the communication dated 25.04.2015 complaining Page 3 of 15 Uploaded by VARSHA DESAI(HC01393) on Fri May 16 2025 Downloaded on : Sat May 17 11:31:28 IST 2025 NEUTRAL CITATION C/SCA/11148/2015 JUDGMENT DATED: 09/05/2025 undefined of inaction on the part of the respondents taking steps to implement the decision of this Court in its order dated 16.01.2016. By the communication dated 16.05.2015, the Respondent No.3 communicated to the Petitioner that the higher pay scale was justified because the Petitioner had not passed the departmental exams which was necessary under clause 9 of the Government Resolution dated 16.08.1994. The aforesaid communication is under challenge in the present petition where it is prayed as under:
"A) This Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and/or Certiorary or other appropriate writ, order or direction, declaring the impugned decision of the Respondent authorities at Annexure-C dated 16.5.2015 withdrawing the benefits of higher scale of pay and recovery from the retirement dues as illegal, unjust, arbitrary, non-application of mind and violative of Art.14 and 16 of the Constitution of India and be pleased to quash and set aside the same and direct the respondents to grant all the benefits to the Petitioner as if no adverse order of withdrawing the higher scale of pay was issued against the Petitioner and pay the arrears of amount with 12% interest.
B) Be pleased to declare the decision of Respondent authorities of withdrawing the higher scale of pay, granted to the Petitioner as illegal and declare that the Petitioner was entitled to get the benefits, of higher scale of pay and set aside the decision of the respondents and grant all the consequential benefits to the Petitioner.
C) Be pleased to declare impugned decision on the part of the Respondent authorities in canceling the order of granting benefits of higher scale of pay to the Petitioner with effect from 01/01/1990 is arbitrary, unjust, illegal and violative of Art. 14 & 16 of the Constitution of India. (D) Pending admission and final disposal of the petition be pleased to suspend implementation and operation of the impugned decision of the Respondent No. 3 at Annexure-
C to withdraw the benefits of higher of higher scale of pay from the Petitioner and effecting pension and retirement benefits of the Petitioner and direct not to reduce pension of the Petitioner.
Page 4 of 15 Uploaded by VARSHA DESAI(HC01393) on Fri May 16 2025 Downloaded on : Sat May 17 11:31:28 IST 2025NEUTRAL CITATION C/SCA/11148/2015 JUDGMENT DATED: 09/05/2025 undefined E) Any other relief which this Hon'ble Court deem fit and proper in interest of justice".
6. It has been submitted by learned counsel appearing on behalf of the Petitioner Ms. Reena Kamani that, there was no scope of the Petitioner taking the departmental exams because the same was not even held between 1987 and 1998, as will be apparent from the reply received in the RTI query which is produced at page.86 (Annexure-R) in the petition. Further, in the judgment and order of this Court in 2016 (1) G.L.H. 246 Maheshkumar L. Thaker vs. State of Gujarat & Others, wherein, it has been categorically noted by the coordinate bench of this Court that the petitioner therein had also pleaded as under:
"(IV) In any case, no departmental examinations were held by the respondents from the year 1989 to 1998. The Petitioner completed nine years of service as Assistant Sub Inspector (Unarmed Head Constable, Grade-I), in the year 1990 and was granted higher pay-scale with effect from 01.01.1990. There can be no question of the Petitioner appearing in a departmental examination that was never conducted by the respondents. Though it is the case of the Petitioner that the passing of a departmental examination for the grant of higher pay-scale is not required in his case, the respondents have themselves failed to hold the examinations during the relevant period. The benefits of higher pay-scale granted to the Petitioner cannot be cancelled by the respondents for no fault of his own, especially after a period of approximately 18 years."
6.1 By citing therefore the said decision, learned counsel for the Petitioner submits that the identically situated candidate like the Petitioner had been granted the benefit of the higher pay scale as noted in the said judgment.
7. Per contra, it is submitted by Ms.Vanita Bharwani learned AGP for the Respondent No.1 that it is clear that the Petitioner had Page 5 of 15 Uploaded by VARSHA DESAI(HC01393) on Fri May 16 2025 Downloaded on : Sat May 17 11:31:28 IST 2025 NEUTRAL CITATION C/SCA/11148/2015 JUDGMENT DATED: 09/05/2025 undefined not passed the departmental exam. It is further submitted by learned AGP that after 1998, departmental promotions have been held on regular basis and the Petitioner has not cleared the same. Therefore, there is no reason for this court to interfere with the decision of the Respondent No.3.
8. Discussion & Findings:
8.1 Although it has been prayed that the order dated 16.05.2015 passed by the Respondent authorities be quashed and set aside by which order the ad hoc promotion of the Petitioner from ASI to PSI was reversed. It has been specifically submitted and argued by the learned Counsel for the Petitioner that the Petitioner's claim in the present petition is limited only to the higher scale of pay and not to the promotional post.
The Respondent no.3 eventually filed their affidavit in reply on 25.04.2024. It is stated in the petition particularly at para 8 therein that no departmental examination has been conducted by the authorities. In the reply of the Respondent No.3, there is no denial to the aforesaid contention of the Petitioner. It is not stated that on which date(s) the concerned departmental examination was held and whether the Petitioner had the opportunity to appear and clear the same or not. There is also no denial to ground (J) that at least 10 named ASIs who had superannuated before or after the Petitioner were granted the benefits of up-gradation and higher scale of pay and that there was no attempt to deduct/recover from their pension or retiral benefits any alleged amount on the same ground on which it is sought to be deducted from the Petitioner.
It is further on record at page.86 of the paper book that upon an RTI Application, it has been stated by the Respondent Page 6 of 15 Uploaded by VARSHA DESAI(HC01393) on Fri May 16 2025 Downloaded on : Sat May 17 11:31:28 IST 2025 NEUTRAL CITATION C/SCA/11148/2015 JUDGMENT DATED: 09/05/2025 undefined authorities that no departmental examination was held between 1987 and 1988. It is also on record that in the judgment and order of this court as recorded in 2016 (1) G.L.H 246 that in the case of a similarly situated employee where the order withdrawing the higher pay scale granted to the said Petitioner was passed after 18 years, this Court had quashed and set aside the said order and it directed the Respondent to grant full pensionary benefits from the date of retirement of the said employee as if the order reversing the pay scale had never been passed. The relevant portion of the judgment and order in Maheshkumar L. Thaker (supra) is as under:
"There is no dispute regarding the fact that the impugned order withdrawing the higher pay-scale granted to the Petitioner with effect from 01.01.1990, has been passed on 27.02.2008, that is, after about 18 years. It is also an admitted fact that before the passing of the impugned order, the Petitioner was not heard. It is not the case of the respondents that the grant of the higher pay-scale to the Petitioner was result of a fraud or misrepresentation on the part of the Petitioner. It is the case of respondents that when the pension papers of the Petitioner were being processed, Respondent No. 4. Director of Pension and Provident Fund, brought to the notice of Respondent No. 3. the aspect that the Petitioner had not passed the departmental examination before being granted a higher pay-scale. This triggered off the process scrutiny, resulting in the passing of the impugned order.
It is the case of the Petitioner that there is no requirement for passing the departmental examination for the grant of a higher pay-scale. The Petitioner had made a query in this regard under the Right to Information Act, 2005, and received a reply dated 30.08.1993. In the said reply, it is categorically stated that it is not compulsory to pass the departmental examination for the grant of higher pay-scale in the case of Unarmed Head Constables, Grade- I. This document is to be found at Annexure-L at running page-54 to the petition. It fortifies the submissions advanced by the learned Advocate for the Petitioner. There is no denial to this document in the affidavit-in-reply Page 7 of 15 Uploaded by VARSHA DESAI(HC01393) on Fri May 16 2025 Downloaded on : Sat May 17 11:31:28 IST 2025 NEUTRAL CITATION C/SCA/11148/2015 JUDGMENT DATED: 09/05/2025 undefined filed on behalf of Respondent No.3.
It may be noted that Government Resolution dated 16.08.1994, contemplates the grant of higher pay-scale to employees who have remained stagnant in the same cadre due to the absence of, or restricted chances of, promotion. It is contemplated in the said Government Resolution that higher pay-scale can be granted after completion of nine years of service in the same cadre. Paragraph-3(5) of the said Government Resolution states that higher pay-scale can be granted to eligible employees subject to their satisfactory service and passing of the departmental examination, where prescribed. Learned Assistant Government Pleader has laid great emphasis upon this Government Resolution and has submitted that this Government Resolution can be taken to mean that the Petitioner was required to pass the departmental examination before he could be granted the higher pay- scale.
In the view of this Court, such construction of the said Government Resolution on the part of the learned Assistant Government Pleader is incorrect, as Paragraph 3(5) of the said Government Resolution clearly states that higher pay-scale will be granted after passing the departmental examination, where prescribed. In the present case, no Government Resolution, Rule or any other document, communication or decision of the State Government has been brought on record or produced before this Court, which states that the passing of the departmental examination in the case of an Unarmed Head Constable, is necessary or prescribed as a condition precedent to granting the benefit of higher pay-scale.
The learned Assistant Government Pleader has further relied upon Rule 165 of the Gujarat Police Malt is the case of the Petitioner that there is no requirement for passing the departmental examination for the grant of a higher pay-scale. The Petitioner had made a query in this regard under the Right to Information Act, 2005, and received a reply dated 30.08.1993. In the said reply, it is categorically stated that it is not compulsory to pass the departmental examination for the grant of higher pay- scale in the case of Unarmed Head Constables, Grade-I. This document is to be found at Annexure-L at running page-54 to the petition. It fortifies the submissions advanced by the learned Advocate for the Petitioner. There is no denial to this document in the affidavit-in-reply Page 8 of 15 Uploaded by VARSHA DESAI(HC01393) on Fri May 16 2025 Downloaded on : Sat May 17 11:31:28 IST 2025 NEUTRAL CITATION C/SCA/11148/2015 JUDGMENT DATED: 09/05/2025 undefined filed on behalf of Respondent No. 3.
It may be noted that Government Resolution dated 16.08.1994, contemplates the grant of higher pay-scale to employees who have remained stagnant in the same cadre due to the absence of, or restricted chances of, promotion. It is contemplated in the said Government Resolution that higher pay-scale can be granted after completion of nine years of service in the same cadre. Paragraph-3(5) of the said Government Resolution states that higher pay-scale can be granted to eligible employees subject to their satisfactory service and passing of the departmental examination, where prescribed. Learned Assistant Government Pleader has laid great emphasis upon this Government Resolution and has submitted that this Government Resolution can be taken to mean that the Petitioner was required to pass the departmental examination before he could be granted the higher pay- scale.
In the view of this Court, such construction of the said Government Resolution on the part of the learned Assistant Government Pleader is incorrect, as Paragraph 3(5) of the said Government Resolution clearly states that higher pay-scale will be granted after passing the departmental examination, where prescribed. In the present case, no Government Resolution, Rule or any other document, communication or decision of the State Government has been brought on record or produced before this Court, which states that the passing of the departmental examination in the case of an Unarmed Head Constable, is necessary or prescribed as a condition precedent to granting the benefit of higher pay-scale. The learned Assistant Government Pleader has further relied upon Rule 165 of the Gujarat Police Manual, Part-I. The said Rule is reproduced hereinbelow:--
"165. Head Constables - (1) Departmental Examination qualifying for promotion to Sub Inspectors:--
(a) The departmental examination for promotion of Head Constable to the rank of Sub-Inspectors will be held in the month of May each year at District Head-quarters on the dates fixed by the Inspector General of Police. The written and oral tests will form parts of the same examination and only one result sheet will be issued......"
As is evident from a perusal of the above Rule, it pertains Page 9 of 15 Uploaded by VARSHA DESAI(HC01393) on Fri May 16 2025 Downloaded on : Sat May 17 11:31:28 IST 2025 NEUTRAL CITATION C/SCA/11148/2015 JUDGMENT DATED: 09/05/2025 undefined to the departmental examination qualifying for promotion to Sub Inspectors and states that the departmental examination for promotion of Head Constables to the post of Police Sub Inspectors will be held in the month of May each year at the District Head Quarters on the dates fixed by the Inspector General of Police. The Rule further goes on to prescribe the procedure to be followed for holding the examinations. This Rule is clearly applicable in cases of promotion of Head Constables to the rank of Police Sub Inspectors. It is nowhere stated that it would be applicable to cases of grant of higher pay-scale, without promotion. Promotion to a substantive post and grant of higher pay- scale after completion of nine years of service in the cadre to avoid stagnation, are two entirely different things. The learned Assistant Government Pleader has fairly admitted as such. In the present case, the Petitioner has passed the departmental examination in the year 1998 and has been promoted to the substantive post of PSI on regular basis on 05.12.1998. The Petitioner has, therefore, fulfilled the requirement of Rule 165 of the Police Manual. It cannot be said that there is an infringement of the said Rule in the case of the Petitioner, so as to justify the action of the respondents in withdrawing the benefit of higher pay-scale. In the above view of the matter, this Court is of the view that the Petitioner has a strong case on merits which the respondents have been unable to dislodge. It is an admitted position as per the affidavit- in-reply filed by RespondentNo. 3, that no departmental examinations were held between 1989 to 1998. If such was the position, the Petitioner can hardly be blamed by the respondents for not passing an examination that was never conducted by them, even if it is assumed that the passing of such examination was necessary. The Petitioner has annexed an order dated 07.09.1993, enumerating the names of 61 Unarmed Head Constables, Grade-I, similarly situated to him, who were granted higher pay-scale after completion of nine years of service and whose benefits have not been withdrawn or recovery effected from them. There is no answer to this in the affidavit-in-reply filed by RespondentNo. 3. It, therefore, appears that the submission of the learned Advocate for the Petitioner, that the Petitioner has been discriminated, is borne out from the record.
Another blatantly unjustified action on the part of the respondents is that the impugned order dated 27.02.2008 has been passed unilaterally by the Respondent No. 3, Page 10 of 15 Uploaded by VARSHA DESAI(HC01393) on Fri May 16 2025 Downloaded on : Sat May 17 11:31:28 IST 2025 NEUTRAL CITATION C/SCA/11148/2015 JUDGMENT DATED: 09/05/2025 undefined without issuance of notice to the Petitioner or granting him an opportunity of hearing. As such, the said order is bad on the ground of the violation of the principles of natural justice as it inflicts civil consequences upon the Petitioner. The Petitioner has retired voluntarily with effect from 30.08.2007. The adverse effect of the impugned order of recovery is being borne by the Petitioner even in respect of his retiral benefits, which have been substantially reduced as a result thereof. The Petitioner is a senior citizen who has to live the rest of his life on the amount of pension granted to him. This amount has further shrunk due to the impugned order. A retired person has to meet with the requirements of food, clothing and shelter on limited resources. He may also have to look after the needs of those dependent upon him. It is possible and probable that in the declining years of life, a retired employee may be beset by ailments that require medical treatment, which is quite expensive in this day and age. It may be kept in mind that pension is not a bounty but the rightful claim of an employee after long years of service. It is evident that the Petitioner would face great hardship due to the passing of the impugned order. Further, the recovery is sought to be effected after about 18 years of the grant of higher pay-scale, which can be said to be a highly unreasonable period of time.
Even if it is assumed that the pay-fixation order was passed mistakenly by the respondents, which does not appear to be the position in the present case, the Supreme Court has, in the case of State of Punjab v. Rafiq Masih (White Washer) etc. (supra), unequivocally held that the Court must weigh the hardship faced by the employee with any hardship that the employer may face and arrive at a conclusion as to whose hardship would be more. In the present case, if the equities are weighed in the manner observed by the Supreme Court, it is obvious that the hardship that the Petitioner would face due to the impugned order would far outweigh any hardship faced by the State Government as a result of the grant of higher pay-scale to the Petitioner. Certain relevant extracts of the above judgment, which would squarely apply to the present case, are required to be reproduced herein below:--
"7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, Page 11 of 15 Uploaded by VARSHA DESAI(HC01393) on Fri May 16 2025 Downloaded on : Sat May 17 11:31:28 IST 2025 NEUTRAL CITATION C/SCA/11148/2015 JUDGMENT DATED: 09/05/2025 undefined which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court.
8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.
The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality, can be found in Articles 14 to 18, contained in Part III of the Constitution of India, dealing with "Fundamental Rights". These Articles of the Constitution, besides assuring equality before the law and equal protection of the laws; also disallow, discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracized Section of the society; and extinguish titles, to scale down the status of a Section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the "Directive Principles of State Policy". These Articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice-social, economic and political, by inter alia minimizing monetary inequalities, and by securing Page 12 of 15 Uploaded by VARSHA DESAI(HC01393) on Fri May 16 2025 Downloaded on : Sat May 17 11:31:28 IST 2025 NEUTRAL CITATION C/SCA/11148/2015 JUDGMENT DATED: 09/05/2025 undefined the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker Sections.
10. In view of the afore stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all Governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.
11............Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during Page 13 of 15 Uploaded by VARSHA DESAI(HC01393) on Fri May 16 2025 Downloaded on : Sat May 17 11:31:28 IST 2025 NEUTRAL CITATION C/SCA/11148/2015 JUDGMENT DATED: 09/05/2025 undefined which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation..........
12. 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, summaries the following few situations, wherein recoveries by the employers, would be impermissible in law:--
(i) Recovery from employees belonging to Class-in and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within oneyear, 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."
It is clearly stated by the Supreme Court in Paragraph-12 the above-quoted judgment that it would be impermissible for the employer to effect recovery from employees belonging to Class-Ill posts and retired employees. Besides, the recovery is sought to be made after 18 years of the pay- fixation order. The Petitioner falls in the first three categories. His case is, therefore, further fortified by the above judgment.
The cumulative effect of the above discussion is that this Court is of the considered view that the impugned order dated 27.02.2008 is unjustified, illegal and unsustainable in Page 14 of 15 Uploaded by VARSHA DESAI(HC01393) on Fri May 16 2025 Downloaded on : Sat May 17 11:31:28 IST 2025 NEUTRAL CITATION C/SCA/11148/2015 JUDGMENT DATED: 09/05/2025 undefined law, therefore, it deserves to be quashed and set aside".
9. In my opinion, the aforesaid decision in Thaker's case (supra) categorically applies on all fours to the Petitioner's case. As observed earlier, there is no denial whatsoever in the affidavit of the reply of the Respondent No.3 that no departmental examination was held during the concerned period. Therefore, the insistence on the part of the respondents for the Petitioner to clear the departmental examination in order to be eligible for the higher grade of pay is clearly misplaced, as the same were not held during the period in consideration, for which the petitioner's pay- scale was upgraded.
10. Resultantly, the petition succeeds. The order dated 16.05.2015 (at Annexure-C to the petition) is hereby quashed and set aside. It is further directed that the Respondents shall calculate the retiral benefits by taking the age of superannuation of the Petitioner on 31.10.2007 on the post of ASI but on the higher scale of the pay granted to the Petitioner as if the order dated 17.06.2009 and the order dated 16.05.2015 was never passed. The aforesaid exercise shall be undertaken and completed by the respondents within the period of Twelve weeks from the date of receipt of a copy of this judgment and order. Rule is made absolute to the aforesaid extent. No order as to costs.
(D.N.RAY,J) VARSHA DESAI/KAJAL Page 15 of 15 Uploaded by VARSHA DESAI(HC01393) on Fri May 16 2025 Downloaded on : Sat May 17 11:31:28 IST 2025