Dinesh Bamjibhai Sureja vs State Of Gujarat
2021 Latest Caselaw 5154 Guj

        C/SCA/2382/2017                                            IA ORDER



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2019
          In R/SPECIAL CIVIL APPLICATION NO. 2382 of 2017
==========================================================

STATE OF GUJARAT Versus DINESH BAMJIBHAI SUREJA ========================================================== Appearance:

MS DHWANI TRIPATHI, AGP for the PETITIONER(s) No. MR AR THACKER for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA

Date : 16/04/2021

CAV IA ORDER

Heard learned Assistant Government Pleader Ms.Dhwani Tripathi for the applicant State and learned advocate Mr.A.R. Thakkar for the respondent.

2. By the present application, the State and its authorities-original respondents, seek review of judgment and order dated 28th February, 2012 passed in Special Civil Application No.2382 of 2017.

2.1 It appears that the aforementioned order dated 28th February, 2019 allowing the Special Civil Application was carried by the State in Letters Patent Appeal No.1686 of 2019. The Letters Patent Bench passed the following order, whereafter the present review application has been filed.

"Learned Assistant Government Pleader has sought to argue that the learned Single Judge although has not adjudicated upon nor recorded any finding with regard to correct last pay drawn by the original petitioner - respondent herein but the operative parts of the judgment and order of the learned Single Judge intends that the original

C/SCA/2382/2017 IA ORDER

petitioner - respondent herein would be entitled to a higher grade pay than the actual admissible to him.

Since there is no finding recorded by the learned Single Judge with regard to the last pay drawn by the original petitioner - respondent herein nor such issue having been adjudicated upon, it would be appropriate that the State may apply before the learned Single Judge for appropriate modification or the review of the order.

With the above observations, the appeal stands disposed of."

3. The basic premise and the ground for review advanced by review applicants is that the court erroneously directed the authorities to pay the retiral benefits to the original petitioner on the basis of last pay drawn by the petitioner. It is submitted that the retiral benefits had been paid and is required to be paid to the petitioner as per the pay scale of Assistant Teacher and not as per the pay scale of Lecturer calculated erroneously and paid to him from 22nd July, 2009 till 31st May, 2016. The petitioner retired on 31st May, 2016.

3.1 The petitioner had been suffering from 80% disability in his eyes. After completing Doctorate in Chemistry and further earning the B.Ed. Degree, he was appointed as Assistant Teacher in government school on 10th January, 1987. Thereafter he was appointed in the government R.R. Lallan College, Bhuj, on 02nd August, 1988. The petitioner was transferred to science college at Rajkot. Thereafter, he came to be sent back as teacher in government school at Limbas, Kheda in the year 2009 and thereafter at Mohandas Gandhi Vidhyalaya at

C/SCA/2382/2017 IA ORDER

Rajkot. He worked there at as teacher till reaching the age of superannuation on 31st May, 2016. Petitioner's grievance boiled down was that he was not paid the pension on the basis of last salary drawn by him.

3.2 The petitioner prayed in the petition for payment of regular monthly pension, gratuity, leave encashment and other retirement benefits, arrears of pay towards salary as well as the arrears of 6th Pay Commission and 7th Pay Commission etc. In course of hearing of the petition, it was observed and recorded in order dated 07th December, 2017 that the grievance of the petitioner about non-payment of pension was partially attended to and what survived was that the pension case was not processed on the basis of last pay drawn, as the effect of last pay drawn was not given in the calculation of pension. The Special Civil Application came to be decided finally by order dated 28th February, 2019, now brought under review.

3.3 When the petitioner retired on 31st May, 2016, he was paid last salary of Rs.89,262/- which included the basic salary of Rs.35,560/-. It is the case of the petitioner that on such basis he was entitled to receive pension amount of Rs.17,280/-, however, was paid Rs.13,590/-. The other retirement benefits like gratuity was also not calculated on the basis of last drawn salary. The pay scale received by the petitioner till the date of his retirement was Rs. 9300-34800 in the grade pay of Rs. 400/-.

C/SCA/2382/2017 IA ORDER

4. The stand of the respondents in response to the case of the petitioner available from the affidavit-in-reply and noted in para-4 of the order under review, was that the petitioner was inadvertently paid the salary in the above pay scale which was not the pay band to which the petitioner was actually entitled to receive.

4.1 The following stand was taken by the authorities,

"4. The stand of the respondent No.3 as evinced in the affidavit-in-reply inter alia was that the petitioner served in respondent No.5 college with pay-scale of Rs.9300-34800 in the Grade Pay of Rs.5400/- and thereafter sent back to the Government Secondary School, Limbasi, where the scale was same of Rs.9300-34800 but in the Grade Pay of Rs.4400/-. It was the stand that due to some inadvertence, salary and other incidental benefits were fixed and paid in the earlier pay- scale with original grade, that is Rs.9300-34800 in the Grade Pay of Rs.5400/-. It was stated that till the petitioner reached the age of superannuation, the mistake in paying the salary to him in the said grade pay continued. It was stated that in this view, when the pension papers were received by the office concerned, petitioner was liable to be treated for the purpose of pension on the basis of the grade pay which he was actually entitled to receive. On such basis, it was contended that there was an excessive payment to the petitioner and that for that reason Rs.12,54,234/- with interest since July, 2009 to May, 2016 was required to be recovered."

5. The recovery was sought to be effected by the authorities on the ground that the payment of salary as above to the petitioner was out of inadvertence. The court did not countenance the above stand of the authorities and applying the principles laid down by the Hon'ble Supreme Court in State of Punjab v. Rafiq Masih [AIR 2015 SC 696] and

C/SCA/2382/2017 IA ORDER

in Syed Abdul Qadir v. State of Bihar [(2009) 3 SCC 475], the petition was allowed holding thus,

"6. In view of the position of law emanates from the aforesaid principles of law laid down by the Courts, the petitioner is entitled to succeed in the petition. Recovery of the amount by the respondent from the salary of the petitioner, who has already retired and the excess payment to him was not for the reason of his culpability of whatever kind, could not have been effected. The recovery was barred in law. Consequently, the petitioner becomes entitled to the relief."

5.1 The final relief was granted allowing the petition as under,

"7. In the above view and in light of the reasons supplied, the petition is allowed. The respondent authorities are directed to calculate the pension of the petitioner on the basis of the last pay drawn and the amounts of pension shall be paid accordingly. Gratuity, if not paid, shall also be paid on such basis. The differential amount arising as arrears shall also be paid. The respondents are further directed to pay leave encashment and all other retiral benefits as may be admissible to the petitioner including the arrears payable towards Sixth Pay Commission and arrears concerning the Seventh Pay Commission. All such dues and arrears shall be paid within eight weeks from the date of receipt of writ of this order. It is provided that if any amount towards the above or part thereof is not paid within the time specified as above, it shall carry interest at the rate of 6% from the date of filing of the present petition, that is from 08th February, 2017."

6. Recapitulating the facts about the services of the original petitioner, from the College at Bhuj, he was transferred to Rajkot College. From the Science College at Rajkot, the petitioner was sent back to work as Teacher in the Government School at Limbas, Kheda, thereafter at Mohandas Gandhi Vidhyalay at Rajkot, where he worked as Teacher till

C/SCA/2382/2017 IA ORDER

he retired on 31st May, 2016. The facts show that the petitioner retired as Teacher. As stated, the grievance of the petitioner was that he was not paid pension and the retirement benefits.

6.1 The Letters Patent Bench is right in making observations in its order quoted in para-2.1 above that the issue of last pay drawn was not to be adjudicated in the petition. It is also not incorrect to say that finding was not recorded in the petition regarding last pay drawn. There will be no gainsaying that the pension would be determined on the basis of the last pay drawn of the retiree-employee.

6.2 The case of the authorities is that when the petitioner was appointed as Teacher, the fixation of his pay was wrongly done in the higher grade which he continued to receive till superannuation. While the recovery sought to be effected by the authorities on the basis of such fixation has not been permitted in the order dated 28th February, 2019 in view of the law laid down by the Supreme Court in Syed Abdul Kadir (supra) and Rafik Masih (supra), for the future fixation and payment of the pension, the authorities may have their own reasons to make the last admissible pay drawn by the petitioner, as basis for fixation of pension of the petitioner.

6.3 At the same time, without expressing any opinion on the merits of the said aspect, since the Division Bench has observed and it is also the position that the issue and the dispute about the

C/SCA/2382/2017 IA ORDER

last pay drawn was not adjudicated in the writ petition, it is kept open for the petitioner to get it determined in independent proceedings.

7. The present application is allowed in terms of the above observations and clarification and to the said extent.

(N.V.ANJARIA, J) ANUP