B N Bhatt vs Gujarat Water Supply And Sewerage ...
2021 Latest Caselaw 10346 Guj

     C/SCA/4727/2007                             JUDGMENT DATED: 03/08/2021



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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4727 of 2007


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                         B N BHATT
                           Versus
     GUJARAT WATER SUPPLY AND SEWERAGE BOARD & 1 other(s)
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Appearance:
HIMANSHI R BALODI(8919) for the Petitioner(s) No. 1
MR ANAND L SHARMA(1714) for the Petitioner(s) No. 1
MR HEMAL A DAVE(3832) for the Petitioner(s) No. 1
MR IS SUPEHIA(874) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 03/08/2021
                             ORAL JUDGMENT

1. Heard learned advocate Mr. Anand L. Sharma for the petitioner and learned advocate Mr. H.S.Munshaw for for respondent No.2.

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2. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs:

"A. Quashing and setting aside theo rder dated 7.2.2007 (Annexure 'E') and to refund the amount of Rs. 19200/- already recovered or any other amount that may be recovered from the petitioner with 10% interest.

B. During the pendency and final dispsal of the petition, respondent No.3 may be restrained from acting upon or implementing the order dt. 7.2.2007 and the same may be stayed.

C. To grant such other benefits as may be deemed fit."

3. Brief facts of the case are that the petitioner who was serving as Senior Clerk in the Public Health Department of respondent no.2 at Bhavnagar was initially appointed as Work Charge Typist on 17th December, 1980 and then as Temporary Typist from 19th August, 1983. He was then promoted to the post of Senior Clerk from 28th May, 1993. By order dated 28th March, 2000 the petitioner was given the deemed date of promotion in the cadre of Senior Clerk with effect from 17th November, 1988.

3.1 It is the case of the petitioner that by order dated 6th September, 2002 the deemed

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date of promotion was cancelled. The petitioner therefore, challenged the same by filing Special Civil Application No. 9266/2003 which came to be allowed by order dated 18th August, 2005 passed by this Court [Coram: P.B.Majmudar, as his Lordship was then] as under:

"4. However, as per the subsequent order at annexure-A dated 6-9-2002 the said benefit is taken away on the ground that the petitioner has not passed departmental HC-NIC Page 2 of 5 Created On Mon Nov 22 16:30:10 IST 2021 SCA/9266/2003 3/5 JUDGMENT examination at the relevant time and, therefore, even though the petitioner was senior clerk he was not entitled to get promotion earlier. The Chief Administrative Officer of the Board accordingly came to the conclusion that since there is no provision for giving deemed date of promotion, the aforesaid order giving deemed date with effect from 17-11-1988 is set aside. The said order is impugned at the instance of the petitioner in this petition.

5. Mr.Trivedi, learned advocate for the petitioner submitted that the impugned order is passed without hearing the petitioner and by virtue of a subsequent order dated 9-7-2003 passed on the basis of impugned order, it is decided to recover the amount paid to the petitioner on the basis of earlier order giving deemed date of promotion. He submitted that such order could not have been passed against the petitioner without hearing the petitioner. Learned advocate for the petitioner has relied upon the decision of

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learned Single Judge of this Court passed in Special Civil Application No.10361/2003 wherein it was held that without issuing show cause notice and without hearing the concerned petitioner, the impugned order could not have been passed. In paragraph 9 of the said order this Court has observed as under :

"9. If the juniors to the petitioner were permitted to steal a march over the petitioner in 1988, they cannot be permitted to make a grievance about the deemed date given to the petitioner of 1988. In fact, the petitioner was given deemed date in 1994 and the impugned order has been passed in June, 2003, after delay of four years. There is nothing to show that any complications have arisen on account of the deemed date of 8.11.1988 given to the petitioner by order dated 24.10.2000. Hence, the impugned order is quashed and set aside on the ground that the same was passed without issuing any show cause notice and without an opportunity of being heard to the petitioner. If, after considering the aforesaid findings and observations, the authorities are still of the view that notwithstanding such gross delay, question of deemed date already given in 2000 is still required to be reconsidered, then only the respondent authority shall issue a fresh show cause notice and give the petitioner an opportunity of being heard and in that case, the petitioner will be at liberty to raise the plea of gross delay and also other defence on merits."

6. It is not in dispute that before passing the impugned order no hearing was given to the petitioner and, in my view, it was not open for the department to pass such order in violation of principles of

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natural justice, especially when the order in connection with deemed date of promotion had existed for about two years. Considering the said aspect of the matter, without going into the merits of the issue and on the ground of noncompliance of principles of natural justice, the impugned order dated 6-9-2002 which is at Annexure-A is quashed and set aside and the respondents are directed to pass appropriate order after hearing the petitioner. It is clarified that issue regarding whether the petitioner was entitled to get deemed date of promotion or not is not decided by this Court and it is for the authority to pass appropriate order in this regard after hearing the petitioner.

7. Accordingly, impugned order at Annexure-A is quashed and set aside. Since the impugned order is set aside, earlier benefit given to the petitioner shall continue till appropriate fresh order is passed in accordance with law after hearing the petitioner. It is clarified that if any amount is recovered from the salary of the petitioner the department is not obliged to refund the said amount, however, no further recovery shall be effected till the fresh order is passed, as stated herein above.

8. Accordingly, this petition is allowed. Rule made absolute. No order as to costs."

3.2 It is the case of the petitioner that thereafter, by letter dated 2nd January, 2006,the petitioner was called upon to remain present for hearing on 9th January, 2006 in the office of the Superintending Engineer,

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Rajkot and accordingly the petitioner remained present and also gave written representation dated 9th January, 2006. The petitioner was heard by the Committee comprising of various officials of the department.

3.3 The Superintending Engineer thereafter sent a letter dated 14th February, 2006 to the Head Office respondent no.1 herein stating that petitioner was entitled to deemed date of promotion in the cadre of Senior Clerk.

3.4 While deciding the issue involved in the matter, the Committee which personally heard the petitioner decided in favour of the petitioner. The Committee consisted of Shri J.P.Thakkar, Zonal Officer and Superintending Engineer and Shri M.R.Buch, office Superintendent. However, the impugned order deciding against the petitioner was passed by Shri J.K.Patel, Zonal Officer and Superintending Engineer who had not heard the petitioner. Thus, the impugned order is liable to be quashed and set aside on the ground that person who had heard the petitioner has not taken the final decision.

3.5 By the letter dated 27.06.2006, third Zonal Officer and Superintending Engineer, Rajkot, Shri A.K.Lolaria, informed the

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Respondent No.1 that Shri A.A.Khoja, Typist, whose deemed date of promotion was given to the petitioner was senior to the petitioner and hence the deemed date given to the petitioner was liable to be cancelled. It was stated in this letter that the alteration in the seniority position was required to be made in view of the letter dated 21.05.1994 written by the Superintending Engineer, Rajkot to Superintending Engineer, Bhuj. In this letter it was stated that name of Shri Khoja should be placed in the seniority list at Sr. No. 12/ A instead of Sr. No. 79. The petitioner was sent copies of letters dated 27.06.2006 and 21.05.1994. On receipt of the above letters, the petitioner by letter dated 07.07.2006 requested to supply him copies of certain documents and also to give him an opportunity of hearing. However, without supplying the copies of the documents and without hearing the petitioner, the impugned order dated 07.02.2007 came to be passed wherein the above letter dated 07.07.2006 has been referred to. Hence, this petition.

4. Learned advocate Mr. Sharma appearing for the petitioner submitted that the seniority position between the petitioner and Shri Khoja remained in force from 1983 onwards and in all the seniority lists the petitioner was shown

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senior to Mr. Khoja. It was submitted that the seniority of the petitioner could not have been disturbed after more than 24 years because as per the available record the petitioner was appointed as Work Charge Typist on 1712.1980 and as temporary typist on 28.08.1983 wheras Shri Khoja was appionted as Work Charge Typist on 28.07.1983 and temporary typist on 12.12.1983 and as such the petitioner is senior to Mr. Khoja which cannot be overlooked.

5. It was submitted that the petitioner appeared in the departmental examinations held on 16.08.1988 and 17.08.1988 and result was declared on 29.12.1988 and therefore, the petitioner ought to have been considered for promotion on the post on the deemed date awarded to the petitioner.

6. Learned advocate Mr. Sharma submitted that an amount of Rs. 93,375/- is sought to be recovered from the petitioner being the alleged over payment and out of this amount, the amount of Rs. 19,200/- was recovered prior to filing of the petition and thereafter, the recovery has been stopped by virtue of the orders passed by this Court. This Court by order dated 21.02.2007, granted interim relief restraining respondents No.2 for implementing

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order dated 07.02.2007 for recovery of the amount alleged to have been over paid by the respondents on account of granting of deemed date.

7. Learned advocate Mr. Sharma relied upon the decision of Supreme Court in case of State of Punjab and anothers vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 334 to submit that recovery from the petitioner would be impermissible on account of excess payment being made to the petitioner assuming that the petitioner has wrongfully been required to discharge the duties of the higher post and has been paid accordingly though he should have rightly required to work against the inferior post.

8. On the other hand, learned advocate Mr. H.S.Munshaw appearing for the respondents submitted that the head office of the respondent-Board at Gandhinagar came to know about several administrative irregularities in passing of the orders of deemed date and as such, such orders were taken into review. It was submitted that during the course of review of such orders of deemed date given to them employees of the Board it was found that the benefit of deemed date given to the petitioner was contrary to the recruitment rules and

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Government policy and therefore benefit of deemed date and the consequential benefits have been withdrawn.

9. Learned advocate Mr. Munshaw submitted that as per the benefit of promotion can be given only after employee becomes eligible on passing departmental examination. It was pointed out that the petitioner was not eligible for the benefit of deemed date on the basis of seniority only and passing the departmental examination was not fulfilled by the petitioner when his immediate junior Mr. Khoja was given promotion on the basis of merits and eligibility. It was therefore submitted that the deemed date given to the petitioner was withdrawn and consequential monetary benefits amounting to Rs. 93,375/- were ordered to be recovered by way of monthly installments.

10. Learned advocate Mr.Munshaw further submitted that pursuant to the order passed by this Court on 18.08.2005 in Special Civil Application No. 9266 of 2003, the petitioner was called for personal hearing on 09.01.2006 and after considering his application for deemed date of promotion as well as representation dated 07.07.2006, the impugned order dated 07.02.2007 was passed rejecting

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the representation of the petitioner as he was not eligible and entitled to the benefit of deemed date for promotion.

11. It was submitted that the impugned order is reasoned and speaking order passed after careful consideration of the Rules and Regulations and policy and therefore the same may not be interfeared by this Court as the petitioner had become eligible for promotion to the post of Senior Clerk only after he passed the departmental examination on 29.12.1988. It was therefore submitted that the impugned order dated 07.02.2007 passed by the respondent authority is in consonance with the circular dated 22.11.1984 issued by the State through General Administrative Department wherein it is categorically laid down that the employee, who has not passed the departmental examination shall not be considered for promotion. It was therefore submitted by learned advocate Mr. Munshaw that the petitioner is not entitled to the deemed date of promotion on the ground of seniority only without passing the departmental examination.

12. Having heard learned advocate for the respective parties and having gone through the material on record it is true that the

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petitioner is granted the deemed date of promotion on the basis of the seniority as he was senior to Mr. Khoja though he has not passed the departmental examination on the relevant date.

13. The case of the petitioner that he is entitled to get the deemed date of promotion w.e.f. 17.11.1888 cannot be considered as admittedly the petitioner cleared departmental examination on 29.12.1988. The respondent authority after considering the Government Resolution dated 22.11.1984 as well as the letter dated 02.05.1984 of the Health and Family Welfare Department of the State Government, passed the impugned order. The amended Rules of 1999 are also considered along with letter dated 26.03.2003 of the General Administrative Department of the State Government to deny the deemed date of promotion to the petitioner as the petitioner did not pass the departmental examination when Mr. Khoja was promoted after passing the departmental examination.

14. In view of the above facts withdrawal of the deemed date of promotion cannot be considered as illegal. However, respondents were not justified in recovering the amount already paid to the petitioner due to awarding deemed

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date of promotion to the petitioner. The Apex Court in case of State of Punjab and others (supra) in such circumstances has held as under:

"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, 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,

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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.

9. 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

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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 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.

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11. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters.

12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475, wherein this Court recorded the following observation in paragraph 58:

"58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, Union of India v. M.

Bhaskar, (1996) 4 SCC 416, V. Ganga Ram v. Director, (1997) 6 SCC 139, Col. B.J. Akkara (Retd.) v. Govt. of

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India, (2006) 11 SCC 709, Purshottam Lal Das v. State of Bihar, (2006) 11 SCC 492, Punjab National Bank v. Manjeet Singh, (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur, (2000) 10 SCC 99."

13. First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the

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employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee.

14. In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India (1994) 2 SCC 521, wherein this Court observed as under:

"11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which

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has already been paid to them.

Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same."

It is apparent, that in Shyam Babu Verma's case (supra), the higher pay- scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay-scale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India.

15.Examining a similar proposition, this Court in Col. B.J. Akkara v. Government of India, (2006) 11 SCC 709, observed as under: "28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he

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receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery."

A perusal of the aforesaid observations made by this Court in Col. B.J. Akkara's case (supra) reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would

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cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e., Class-III and Class-IV - sometimes denoted as Group 'C' and Group 'D') of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India.

16. This Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows:

"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter- affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have

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either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."

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

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as the period during 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.

17. Last of all, reference may be made to the decision in Sahib Ram Verma v. Union of India, (1995) Supp. 1 SCC 18, wherein it was concluded as under:

"4. Mr. Prem Malhotra, learned counsel for the appellant, contended that the previous scale of Rs 220-550 to which the appellant was entitled became Rs 700-1600 since the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any force in this contention. It is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges to Rs 700-

1600 but they insisted upon the minimum educational qualification of first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science. The relaxation given was only as regards obtaining first or second class in the prescribed educational qualification but not

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relaxation in the educational qualification itself.

5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs."

It would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs.700-1600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed minimum educational qualification (first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib.

Science or a Diploma in Library Science, the degree of M.Lib. Science being a preferential qualification). For those Librarians appointed prior

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to 3.12.1972, the educational qualifications were relaxed. In Sahib Ram Verma's case (supra), a mistake was committed by wrongly extending to the appellants the revised pay scale, by relaxing the prescribed educational qualifications, even though the concerned appellants were ineligible for the same. The concerned appellants were held not eligible for the higher scale, by applying the principle of "equal pay for equal work". This Court, in the above circumstances, did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post.

18.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, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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(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.

(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.

19. We are informed by the learned counsel representing the appellant- State of Punjab, that all the cases in this bunch of appeals, would undisputedly fall within the first four categories delineated hereinabove. In the appeals referred to above, therefore, the impugned orders

C/SCA/4727/2007 JUDGMENT DATED: 03/08/2021

passed by the High Court of Punjab and Haryana (quashing the order of recovery), shall be deemed to have been upheld, for the reasons recorded above.

20. The appeals are disposed of in the above terms."

15. In view of the above dictum of law, the respondents are directed not to recover any amount from the petitioner. The amount which is already recovered being Rs. 90,200/- is also not required to be paid back to the petitioner as during the course of argument learned advocate Mr. Sharma for the petitioner has given up the prayer for refund of the amount already deducted.

16. The petition is therefore partly allowed.

Respondents are restrained from recovering any further amount from the petitioner pursuant to the withdrawal of the deemed date of promotion by the impugned order dated 07.02.2007. Rule is made absolute to the aforesaid extent.

(BHARGAV D. KARIA, J) JYOTI V. JANI