Patan District Panchayat vs S.V. Dave
2021 Latest Caselaw 10261 Guj

      C/SCA/7941/2020                                  JUDGMENT DATED: 02/08/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 7941 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE
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1      Whether Reporters of Local Papers may be allowed                     No
       to see the judgment ?

2      To be referred to the Reporter or not ?                              No

3      Whether their Lordships wish to see the fair copy                    No
       of the judgment ?

4      Whether this case involves a substantial question                    No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                              PATAN DISTRICT PANCHAYAT
                                        Versus
                                 S.V. DAVE & 1 other(s)
===============================================================
Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MR M R MOLAVI(3362) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                                   Date : 02/08/2021
                                   ORAL JUDGMENT

[1] This petition under Article 226 of the Constitution of India is filed by the petitioner challenging the order dated 16.12.2019 passed by Gujarat Civil Services Tribunal at Gandhinagar in Appeal No.111 of 2018 quashing the order of recovery from the respondent No.1.

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[2] The petitioner being a District Panchayat has filed this petition on the ground that the petitioner was promoted as a Senior Clerk in the year 2011 on a condition that the certificate of passing of CCC examination is to be submitted. The petitioner was only required to clear the CCC examination on or before 31.12.2013 however, the petitioner cleared the CCC examination on 06.02.2014. Therefore, the petitioner is entitled to the benefit of promotion from the date of passing of CCC examination i.e. from 06.02.2014. The respondent No.1 has therefore, received the benefit of promotional post w.e.f. 01.04.2011 to which the respondent No.1 was not entitled to and hence, the order was passed on 19.08.2017 for recovery of difference in salary between the post of Junior Clerk and the promoted of Senior Clerk.

[3] Learned advocate for the petitioner submits that the respondent No.1 was very much aware of this position and therefore, only the benefits which were received by the respondent No.1 on condition and one such condition not being fulfilled, the respondent No.1 has to refund back the amount of the benefits which the respondent No.1 is not entitled to. Learned advocate for the petitioner submits that the Tribunal has proceeded to hold on merits in favour of the petitioner however, by recording decision of the Apex Court in the case of State of Punjab and others v/s. Raiq Masih (White Washer) and others, reported in (2015) 4 SCC 334, recovery part is ordered to be stayed.

[3.1] Learned advocate for the petitioner has submitted that subsequent to the decision of Rafiq Masih, the Apex Court has in subsequent decision held that where the benefit is received

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knowingly and on condition then such benefit will have to be refunded. It is submitted that such situation will not be covered under the case of Rafiq Masih (Supra).

[4] Learned advocate for the respondent No.1 has opposed the grant of petition by submitting that the case is clearly covered under the ratio laid down by the Apex Court in the case of Rafiq Masih (Supra) as it was not the fault of the respondent No.1 that the respondent No.1 has received the promotion and has actually worked on the promoted post. It is submitted that even factually after the respondent No.1 has cleared the CCC examination, the respondent No.1 has now been given the promotion of the Senior Clerk and is actually working on such post and hence, also such recovery should not be affected.

[5] The Court has heard learned advocates for the parties and perused the documents placed on record. The respondent No.1 is having qualification of HSC passed and was appointed as Junior Clerk on 08.10.2001. Thereafter, the respondent No.1 was promoted to the post of Senior Clerk by order dated 01.04.2011. Copy of the promotion order is placed at Annexure-A and the condition of passing of CCC examination was stipulated at condition No.9. Condition No.10 provided that the promotion is subject to the resolution and instructions given by the State Government in this regard.

[6] There is no dispute to the fact that the respondent No.1 has cleared the CCC examination on 06.02.2014. From the pleadings, it appears that a conditional promotion was given to the respondent No.1 when he was promoted. The Government made training and examination of computer skills

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mandatory for getting promotion or higher pay scale in administration since 2006 and made a rule that, the employee who has not passed the said training and examination shall not be eligible for promotion. But, as sufficient centers were not available to many employees for the training and examination, the Government extended its time limit from time to time. It cannot be said that the respondent No.1 was not aware of it. The respondent No.1 was promoted in 2011 on a condition that he shall pass C.C.C. examination. However, he did not attempt to appear for the examination by 06.12.2013 and he had not submitted any form before he submitted his C.C.C. examination form for the first time. There is a provision in Government Resolution No. PRCh/102005/1519/Part-1/C dated 22.07.2013 of the General Administrative Department that, the employees who have not passed C.C.C. examination have to pass the examination till 31.12.2013 and if they do not pass the examination within the stipulated time, then the benefit of promotion given to them shall be withdrawn. Despite that, the respondent No.1 has not passed the examination within the stipulated time. The petitioner submitted his application for the first time on 06.12.2013 and passed the examination in February-2014. Therefore, the benefit given to him was withdrawn.

[7] Considering the facts on record, the Tribunal has proceeded to hold as under:-

The respondent No.1 has accepted the fact that he was promoted on 01/04/2011 under the condition No.9, i.e. to pass C.C.C. examination. It is undisputed that the respondpent No.1 passed C.C.C.+ examination in 2014. The respondent No.1 did not pass the examination till 31/12/2013. For smooth administration and for the employees willing to get promotion, the Government vide

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Notification No. GA / 2006 / 31 / 102005 /1519 / C dated 30/09/2006 and Resolution No. PRCh / 102005 / 1532 / C dated 30/09/2006 of General Administrative Department made rules with regard to passing C.C.C. and C.C.C.+ examination before giving promotion to an employee. According to the resolution, the employees willing to get promotion were required to pass C.C.C. or C.C.C.+ examination, whichever was applicable as prescribed by the Government. But, as there were no sufficient Government Training Centers for the said examination, the Government extended time limit for passing the examination by passing resolutions from time to time. It was also provided that, the employees who have not passed C.C.C. or C.C.C.+ examination shall be given conditional promotion on a condition requiring them to pass the examination. The respondent No.1 was also promoted by the office accordingly. As the respondent No.1 is a government employee and performing a duty on the post of Senior Clerk, he should be aware of the circulars of the Government. Though it was not stated in his promotion order as to before what date, he was required to pass the examination, it cannot be believed that the employee was not aware of the circulars of the Government. In fact, provision was made by the Government to pass the exam before promotion but later on, relaxation was provided for the same. It can not be believed that the respondent No.1 was not aware of all these facts. The respondent No.1 was promoted on 01-04-11. He has not passed CCC exam for more than 2.5 years after promotion. The examination centers were arranged by the Government from time to time, and if the respondent No.1 does not avail its benefit and does not pass the exam, then it can not be believed that he was not aware of the circular of the Government. Circular was issued by the Government on 22- 07-2013 wherein the condition was mentioned that the employees who received promotion, shall have to pass the exam by 31-12-13. The Government has notified many centers in Gujarat for the exam of CCC or CCC+, despite that the respondent No.1 has not passed the exam. It appears that the respondent No.1 has applied for the exam for the first time on 06-12-2013. The respondent No.1 has submitted that he has filled form for the exam previously but he has not submitted any evidences in that regard.

As per the rules of the Government, the exam was to be arranged by the notified centers and each employee was supposed to submit direct application, through department to appear in the exam. It was not the responsibility of the department to get the employees to pass the exam. This becomes clear from the circular of the Government. Hence,

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respondent No.1's submission can not be believed that he was not provided training by the department. It was duty of all the employees to get the training themselves and it was not to be arranged by the Government. Therefore, the said submission of the respondent No.1 can not be believed. On the basis of resolution no.PRCh/102010/282/K dated 20-09- 2016 of the Government, the respondent No.1 has submitted that before the order for withdrawing his promotion, the Government had provided relaxation for CCC exam by the resolution dated 20-09-2016. The time limit was extended subject to passing the exam from 31-12-13 to 30-06-16, arranged by recognized centers, but the aforesaid resolution is applicable only for Higher grade pay and not applicable to the promotion. Therefore, respondent No.1's submission can not be considered."

[8] In view of the aforesaid, finding given by the Tribunal that the respondent No.1 was not entitled to the benefit of the promotional post till he cleared the CCC examination. However, by the impugned order, the Tribunal has quashed the recovery part of the order and relying upon the decision in case of Rafiq Masih (Supra), the Apex Court in subsequent decision in case of High Court of Punjab and Haryana and others v/s. Jagdev Singh, reported in (2016) 14 SCC 267, while considering the ratio of Rafiq Masi (Supra) has held as under:-

10. In State of Punjab & Ors etc. vs. Rafiq Masih this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law:

"(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, 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.

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(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." (emphasis supplied).

11 The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.

[9] Similarly, in case of Union Territory, Chandigarh and others vs. Gurucharan Singh and Another, reported in (2014) 13 SCC 597.

"13 Though a submission had been made on behalf of the respondent that no amount should be recovered from the salary paid to the respondent, the said submission can not be accepted because if any amount had been paid due to mistake, the mistake must be rectified and the amount so paid in pursuance of the mistake must be recovered. It might also happen that the employer might have to pay some amount to the respondent as a result of some mistake and in such an event, even the appellant might have to pay to the respondent. Be that as it may, upon settlement of the account, whatever amount has to be paid to the respondent employee or to the appellant employer shall be paid and the account shall be adjusted accordingly."

[10] In the opinion of the Court, the case of the respondent No.1 would not fall in any categories as specified in para-18 of the decision of Rafiq Masih (Supra). The Court is informed that the recovery which the respondent No.1 would face would be to tune of Rs.45000/- which in the opinion of the Court would not be iniquitous or harsh which would out weigh the

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equitable balance of the employer's right to recover. Moreover, in so far as the entitlement is concerned, the respondent No.1 has not challenged the decision of the Tribunal which has in no uncertain terms held against the petitioner in so far as the entitlement to the benefit of promotion for the period between 01.04.2011 to 05.02.2014 is concerned.

[11] In that view of the matter, the petition deserves to be allowed. The order dated 16.12.2019 passed by Gujarat Civil Services Tribunal at Gandhinagar in Appeal No.111 of 2018 in so far as it quashes the order of recovery in order dated 19.08.2017 is quashed and set aside.

(A.Y. KOGJE, J) SIDDHARTH