Gujarat High Court
Saurashtra University vs Harkant S/O Jethalal Pandya on 12 October, 2021
Bench: A. P. Thaker
C/LPA/729/2021 ORDER DATED: 12/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 729 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 10136 of 2016
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 729 of 2021
With
R/LETTERS PATENT APPEAL NO. 730 of 2021
In
SPECIAL CIVIL APPLICATION NO. 6365 of 2009
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 730 of 2021
In
SPECIAL CIVIL APPLICATION NO. 6365 of 2009
With
R/LETTERS PATENT APPEAL NO. 740 of 2021
In
SPECIAL CIVIL APPLICATION NO. 10750 of 2016
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 740 of 2021
In
SPECIAL CIVIL APPLICATION NO. 10750 of 2016
================================================================
SAURASHTRA UNIVERSITY
Versus
HARKANT S/O JETHALAL PANDYA
================================================================
Appearance:
MR AR THACKER(888) for the Appellant(s) No. 1
MR ANAND B GOGIA(5849) for the Respondent(s) No. 1
MR BB GOGIA(5851) for the Respondent(s) No. 1
MS MUSKAN A GOGIA(6624) for the Respondent(s) No. 1
MR MANAN MEHTA, AGP for the Respondent(s) No. 2,3
UNSERVED WANT OF TIM(31) for the Respondent(s) No. 4
================================================================
CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE DR. JUSTICE A. P. THAKER
Date : 12/10/2021
Page 1 of 6
Downloaded on : Sun Jan 16 23:23:46 IST 2022
C/LPA/729/2021 ORDER DATED: 12/10/2021
ORAL ORDER
(PER : HONOURABLE DR. JUSTICE A. P. THAKER)
1. All these Letters Patent Appeals have been filed against
common judgment and order dated 18.8.2020 delivered by
learned Single Judge in Special Civil Application Nos.10136 of
2016, 6365 of 2009 and 10750 of 2016 respectively. By
allowing Special Civil Application Nos.10136 of 2016 and
10750 of 2018, it is held that since there was an ad-interim
relief against recovery, now there shall be no recovery from
the petitioners. So far as Special Civil Application No.6365 of
2009 is concerned, the order impugned therein dated
12.9.2008 of the Tribunal in Application No.3 of 2001 is
quashed and set aside and the appellant herein-original
respondent is directed to refund the amount, which is
recovered from the petitioner pursuant to judgment and order
of the Tribunal.
2. Mr.Thacker, learned advocate for the appellant submitted
that the original petitioners i.e. respondent no.1 herein have
made representation to the Union and on the basis of
representation of the Union, on 17.10.1987, pay scale was
granted by the Syndicate of the University on condition that it
is subject to approval of the State Government. He further
submitted that the original petitioners have given undertaking
to the appellant-University from time to time and knowing fully
well that if the State Government does not approve the pay
scale, they are liable to refund the excess amount paid to
them. He submitted that, in the present case, State
Government has never approved the pay scale of the original
petitioners and it was continued by resolution of the Syndicate
C/LPA/729/2021 ORDER DATED: 12/10/2021
and the original petitioners were knowing very well that if the
State Government does not approve the pay scale then they
have to refund the amount paid to them. In this regard, an
undertaking is also filed by the original petitioners.
3. Mr.Thacker further submitted that the ratio laid down by
Honourable Supreme Court in the case of State of Punjab
and Others v. Rafiq Masiha (White Washer) and Others
would not apply in the facts of the present case and learned
Single Judge has not considered this aspect. He has submitted
that undertaking is binding on the employee and he is
estopped from challenging recovery. He has relied upon
decisions of the Supreme Court reported in the case of High
Court of Punjab and Haryana v. Jagdev Singh reported in
2016 (Scale) 471 and another decision reported in Chandi
Prasad Uniyal & Others v. State of Uttarakhand &
Others reported in 2012 (8) SCC 417, wherein it is held that
if pay scale is granted to the employee upon his representation
and undertaking is given by him, excess amount can be
recovered at any stage, and even at the time of retirement or
even after retirement.
4. In the case of Chandi Prasad Uniyal and Others
(supra), Honourable Apex Court has observed as under:-
"16. We are concerned with the excess payment of public
money which is often described as "tax payers money" which
belongs neither to the officers who have effected over-
payment nor that of the recipients. We fail to see why the
concept of fraud or misrepresentation is being brought in such
situations. Question to be asked is whether excess money has
been paid or not may be due to a bona fide mistake. Possibly,
effecting excess payment of public money by Government
officers, may be due to various reasons like negligence,
C/LPA/729/2021 ORDER DATED: 12/10/2021
carelessness, collusion, favouritism etc. because money in
such situation does not belong to the payer or the payee.
Situations may also arise where both the payer and the payee
are at fault, then the mistake is mutual. Payments are being
effected in many situations without any authority of law and
payments have been received by the recipients also without
any authority of law. Any amount paid/received without
authority of law can always be recovered barring few
exceptions of extreme hardships but not as a matter of right,
in such situations law implies an obligation on the payee to
repay the money, otherwise it would amount to unjust
enrichment.
17. We are, therefore, of the considered view that except few
instances pointed out in Syed Abdul Qadir case (supra) and in
Col. B.J. Akkara (retd.) case (supra), the excess payment
made due to wrong/irregular pay fixation can always be
recovered."
5. We have also heard learned AGP, Mr.Manan Mehta for the
respondent-State and Mr.Gogia, learned advocate for the
private respondents. Mr.Gogia submitted that he has filed an
affidavit in these matters along with various orders passed by
this Court. In view of the observations made therein, he has
prayed to dismiss present appeals.
6. Heard learned advocates appearing for the parties and
considered the documents on record as well as the decisions
cited at bar. On perusal of the undertaking filed on behalf of
the private employee, it appears that it is general in nature
and it only pertains to the excess payment, if any, made due to
fixation of pay on account of coming into operation of the Pay
Commission. There is no mention in the said undertaking that
this will apply to higher grade, if any granted to the employee
in future. In this regard, it is pertinent to note that the
concerned authority pays amount to the employee, when there
C/LPA/729/2021 ORDER DATED: 12/10/2021
is sanction of the higher grade after completion of 9, 18 or 27
years, as the case may be. In such case, specific words are
used in the undertaking that in case of audit objection or it is
found in future that the employee was not entitled to such
higher grade then he will refund the amount, if any paid in
future. Now, in the present case, the reliance placed on the
general undertaking is concerned, there is no such mention of
recovery of any amount granted to employee due to grant of
higher grade by the University by passing appropriate
resolution in Syndicate. Thus, there is a distinction in the facts
of the present case and the facts of the case before the
Supreme Court in Chandi Prasad Uniyal and Others. It is
pertinent to note that the University has granted the higher
pay scale, after appropriate resolution and thereafter fixation
was carried out, however, at no point of time objection was
raised. Therefore, there was no fault on the part of the
employee in getting higher grade of pay.
7. On perusal of impugned common order of learned Single
Judge, it appears that learned Single Judge has considered
various decisions including the decision of Division Bench of
this Court rendered in Letters Patent Appeal No.1298 of 2015
and allied matters, copy of which has been produced in this
appeal by respondent at page no.224 to 235, wherein while
considering similar case, Division Bench has passed an order in
favour of the respondents-original petitioners. It is pertinent to
note that Division Bench of this Court in the aforesaid decision
has dealt with Government Resolution of sanction of pay scale
in case of Non Teaching Staff of the Universities, including
Library Assistants and Library Technicians. After considering
Government Resolutions, Division Bench of this Court has
C/LPA/729/2021 ORDER DATED: 12/10/2021
confirmed the order of learned Single Judge in case of similarly
situated persons of the University. It is observed by the
Division Bench in paragraph 9 as under:-
"9. We are of the opinion that once the Local Audit Fund
has sanctioned the pay-scale, thereafter the said office
has wrongly raised an objection with regard to grant of
pay-scale and recovery of amount from the petitioner.
We are also of the opinion that once the appellant
University was receiving grant from the State
Government, the University cannot be directed to pay
the retiral benefits to the petitioner from its own fund
and when the amount of salary has been actually paid
to the petitioner, the State Government cannot be
permitted to recover the said amount from the
appellant University. ........................"
8. In view of above, the reasoning and conclusion arrived at
by learned Single Judge for granting relief in favour of the
respondents-original petitioners is in consonance with the facts
and law. This Court is in complete agreement with the same.
Hence, all these appeals are devoid of merits.
9. Accordingly, all these appeals are dismissed. In view of
dismissal of the appeals, Civil Applications do not survive for
any order and they are also disposed of accordingly.
(N.V.ANJARIA, J)
(DR. A. P. THAKER, J)
R.S. MALEK
