State Of Gujarat vs Umedbhai Madhavbhai Parmar
2021 Latest Caselaw 8122 Guj

     C/LPA/604/2021                                        ORDER DATED: 09/07/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 604 of 2021
                                  In
             R/SPECIAL CIVIL APPLICATION NO. 6075 of 2007
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                             STATE OF GUJARAT
                                   Versus
                        UMEDBHAI MADHAVBHAI PARMAR
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Appearance:
MR DHAWAN JAYSWAL, ASSISTANT GOVERNMENT PLEADER(1) for the
Appellant(s) No. 1,2,3
for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                         Date : 09/07/2021
                          ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Heard Mr. Dhawan Jayswal, learned Assistant Government Pleader for the appellants.

2. Feeling aggrieved and dissatisfied by the order dated 12.12.2019 passed by the learned Single Judge in Special Civil Application no.6075 of 2007, the State and its authorities have preferred this appeal under Clause 15 of the Letters Patent.

3. Mr. Dhawan Jayswal, learned Assistant Government Pleader for the appellants has candidly contended that the learned Single Judge has committed an error in coming to the conclusion that the respondent was rightly

C/LPA/604/2021 ORDER DATED: 09/07/2021

given first higher pay scale. Mr. Jayswal contended that after giving effect of the appropriate pay scale, appropriate amount has been recovered. According to Mr. Jayswal, even under Rule 28 of the Gujarat Civil Services (Pay) Rules, 2002, the respondent will not be entitled to to the benefit which has been granted. On the aforesaid ground, it was contended by Mr. Jayswal that the appeal requires consideration on merits.

4. No other or further submissions, averments, grounds and/or contentions are made by Mr. Dhawan Jayswal, learned Assistant Government Pleader for the appellants.

5. We find from the impugned order that the learned Single Judge has rightly considered the factual matrix and has rightly interpreted the provisions of Rule 28 of the Gujarat Civil Services (Pay) Rules, 2002 and has observed as under:-

"9. Having heard learned advocates appearing for the parties and having gone through the material on record, ex-facie, it appears that it is not the case of the authority that the petitioner has done any misdeed or has committed any mistake or misrepresented the authority in granting higher pay scale to him and as such, when that be so, here is a

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case in which the monetary benefits which were extended way back in September 2000 are sought to be recovered after almost a period of about 5 to 6 years, i.e. in the year 2006. It is not in dispute that during this period of time, consistent monetary benefits on the basis of the higher pay scale have been extended to the petitioner uninterruptedly by the authority and it is not in dispute that the interim relief which has been granted by this Court way back in March 2007 has been continued throughout and for vacating the interim relief as well, no attempt is made by the authority either by filing civil application for vacating the interim relief or for early hearing, on the contrary, it is the petitioner who appears to have moved an application for expeditious disposal of the petition.

10. In the background of the aforesaid circumstance, if the effect of Rule 28, which is stated to be applicable undisputedly, is clearly indicating that the Government employee concerned shall not be called upon to refund the resultant amount of over payment on account of pay or allowances, as is clearly visible from the wordings of sub-

rule(2) of Rule 28. Additionally, there are few propositions which are laid down by various decisions to the effect that if there is no mistake or misrepresentation on the part of the employee to get higher amount then it is not open for the authority to recover the same. Some of the relevant observations contained in the decisions which are pointed out,

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since are relevant, the Court deems it proper to quote hereinafter:-

(1) In Special Civil Application Nos.6006 to 6008 of 2002, this Court vide judgment dated 28.1.2003, has held and observed in para 7 and 10 as under:-

7. In view of the above, what is required to be noted is that there is no dispute on the point that pursuant to the decision of the higher authority the payscale in the higher grade was granted to the petitioner and after a period of about more than 4 years the decision is taken of cancelling the earlier decision and as a consequence thereof recovery is sought to be effected. It is not the case of the respondents that the higher pay scale came to be granted on account of fraud or misrepresentation or any misdeed which can be attributed to the concerned employee. Therefore, it appears that it is on account of subsequent change of decision by the authority without attributing anything to the concerned employee the decision is cancelled and the recovery is sought to be effected. Therefore, under the circumstances, it will have to be examined as to whether such an act on the part of respondents is permitted under law or not.

         10. In    view    of   the    aforesaid
         discussion,    all   these    petitions

succeed. The impugned orders of recovery of amounts which are challenged in respective petitions are quashed and set aside and the

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petitions are allowed to the aforesaid extent. It is made clear that if any amount of retiral benefits is withheld on account of the impugned decision of recovery of amounts, same shall be released forthwith in accordance with law. Rule in each petition is made absolute accordingly. There shall be no order as to costs.

(2) The Division Bench of this Court in Letters Patent Appeal No.750 of 2003, vide judgment and order dated 16.12.2004 has held and observed in para 9 as under:-

"9. From the judgment of the learned single Judge it is clear that the by playing fraud or misrepresentation or their misdeed the original petitioners have not obtained the benefit of higher pay scale. Therefore, in absence of any malafide intention on the part of the original petitioners they cannot be made to suffer later on and that too after a period of 4 years. It may be stated that the 1st resolution was passed in 1991 which was later on cancelled by the State Government after a period of 4 years i.e. in 1995 as if no sufficient recovery was sought to be made from the original petitioners by the State government after a period of six years of passing of the said Resolution in 1995, that too, after the petitioners retired from the service. Under the circumstances, when the learned single Judge has exercised discretion in favour of the original petitioners and allowed the writ petition and quashed and set aside the impugned orders of

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recovery, then certainly this court will not interfere with such discretionary order passed by the learned single Judge in this L.P.A."

(3) Hon'ble Supreme Court in the case of P.H. Reddy and Ors. Vs. N.T.R.D.& Ors., reported in 2002(2) S.L.R. 694, has held and observed in para 2 as under:-

2. ....In our view, therefore the judgment of this court in the Director General, ESI, represents the correct view, and consequently the order of re-fixation done by the appropriate authority, in the case in hand, does not require any interference, but the employee- appellants who had been in receipt of a higher amount on account of erroneous fixation by the authority should not be asked to repay the excess pay drawn, and therefore, that part of the order of the authority is set aside. The direction of the appropriate authority requiring reimbursement of the excess amount drawn is annulled.

         11. In    view    of   the   foregoing
         proposition    of    law    and    the

submissions canvassed by both learned advocates on their respective sides, this Court is of the opinion that the action of the respondent authority is unjust, arbitrary and illegal. Accordingly, the impugned order dated 7.2.2007 is hereby quashed and set aside and the petition is allowed in terms of the reliefs sought. Rule is made absolute with no order as to costs."

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6. Considering the binding decisions of this Court as well as the Hon'ble Apex Court, we are in total agreement with the view expressed by the learned Single Judge. No interference is called for in our appellate jurisdiction. The appeals fails and is hereby dismissed. However, there shall be no order as to costs.

(R.M.CHHAYA, J)

(NIRZAR S. DESAI,J) Maulik