Rahimali Ramjibhai Hajiyani vs State Of Gujarat
2022 Latest Caselaw 751 Guj

     C/SCA/13621/2010                                          JUDGMENT DATED: 24/01/2022



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 13621 of 2010

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA                                               Sd/-
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                                         NO

2     To be referred to the Reporter or not ?                                      YES

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

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

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                           RAHIMALI RAMJIBHAI HAJIYANI
                                     Versus
                           STATE OF GUJARAT & 2 other(s)
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MR ROHAN SHAH, AGP (1) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                       Date : 24/01/2022
                      ORAL JUDGMENT

1. The present writ petition has been filed, inter alia, seeking the following prayer:-

"8(B) Honourable Court be pleased to allow this Special Civil Application by way of passing appropriate writ, mandamus order or directions quashing and setting aside the order dated 23/02/2010 passed by the respondent No.3 for recovery, annexed as Annexure-C and further be pleased to direct the respondents to release the retiral benefits like pension, gratuity, provident fund, leave encashment, group insurance as well as commutation of pension forthwith by way of holding that withholding the same is illegal, unjust and arbitrary in the interest of justice."

2. At the outset, learned advocate Mr.H.S.Munshaw has submitted that the petitioner is only paid provisionnal pension of Rs.15,958/-, however, gratuity,

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provident fund, leave encashment are not yet paid.

3. The brief facts of the case are as under:-

3.1. The petitioner was born on 02.02.1952 and obtained qualification of B.E.(Civil) from Lakhdirji Engineering College, Morbi, (the then District Rajkot) and thereafter he was appointed as a Junior Engineer on 17.05.1977 by the respondent No.1. Thereafter, he was granted promotion to the post of Deputy Executive Engineer on the basis of his seniority-cum-merits in a regular course vide order dated 07.07.1984.

3.2. The petitioner was never released any increments between 1984 to 2009 only on the ground that the same were to be cleared by the Local Fund Audit Department and the period of leave without pay was not decided and regularized by the respondent No.1. After number of representations, ultimately, the increment was released for a period of 25 years, through order dated 30.10.2009, duly passed by the respondent No.3.

3.3. The petitioner was due to retire on 28.02.2010 on attaining the age of superannuation, however, he received an order dated 23.02.2010 from the respondent No.3 to the effect that the benefits of increments released in favour of the petitioner were to be withdrawn, as he has not cleared the professional examination, after promotion to the post of Deputy Executive Engineer in the year 1984.

4. Learned advocate Mr.H.S.Munshaw for the petitioner has submitted that the impugned order dated 23.02.2010 passed by the respondent no.3 ordering recovery of an amount of Rs.8,39,817/- on the ground of non passing of the departmental examination after having promoted to the post of Deputy Executive Engineer, is required to be quashed and set aside as the same is passed without affording any opportunity of hearing. He has submitted that the petitioner retired from service on 28.02.2010 and the order is passed on 23.02.2010. It is submitted by him that the petitioner was promoted to the post of Deputy Executive Engineer in the year 1984 and he served as Deputy

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Executive Engineer upto 28.10.2010 without any interruption of service. It is submitted by him that the impugned order is passed after a period of 25 years of service and as per the settled proposition of law, such recovery cannot be made. He has placed reliance on the judgment of the Supreme Court in the case of State of Punjab and Others vs. Rafiq Masih (White Washer) and Others , (2015) 4 SCC 334.

4.1. Learned advocate Mr.Munshaw has further submitted that the petitioner is a promotee and hence, he was not required to pass the departmental examination in view of Clause-3 of the Government Resolution dated 24.10.1990. He has submitted that the said resolution is applicable to the direct recruitee and not to promotee. He has submitted that the petitioner had made an application for appearing in the professional examination and though the same was forwarded to the Superintending Engineer, he was not allowed to appear in the examination. He has submitted that by the communications dated 25.07.2007 and 22.06.2008, the respondent authority forwarded his request to appear in the examination and hence, he could not have been denied the increments. It is submitted that similarly situated Deputy Executive Engineers namely Mr.D.K.Daima, Mr.P.P.Parek and Mrs.M.S.Hala are granted increments regularly and hence, the petitioner, who is bedridden and 71 years of age, is entitled to the amount as specified in the impugned order.

5. In response to the aforesaid submissions, learned AGP Mr.Rohan Shah has submitted that as per the Government Resolution dated 24.10.1990, every person, who is appointed as Engineer by promotion, is required to pass professional exam within three chances during the period of three years and since the petitioner did not clear the examination till his retirement, the impugned order was passed. He has submitted that the petitioner was supposed to pass the examination within three years from 1984 when he was granted promotion to the post of Deputy Executive Engineer, but he did not do so and hence, the impugned order of recovery of an amount of Rs.8,39,817/- was passed. It is also submitted by him that the petitioner was also imposed the

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penalty of cut in pension of Rs.500/- per month for a period of two months vide Government Order dated 03.05.2017 and the regular pension can only be paid after the amount of Rs.8,39,817/- is recovered from the petitioner. No further submissions are advanced.

6. I have heard the learned advocates appearing for the respective parties.

7. The facts, which are established from record, are that the petitioner has retired from the post of Deputy Executive Engineer on 28.02.2010 and the impugned order is passed on 23.02.2010 i.e. before 5 days of his retirement. A perusal of the order reveals that the same pertains to the recovery of increment, which was granted to the petitioner after his promotion on the post of Deputy Executive Engineer. Such increments were released vide order dated 30.10.2009, however, the same were ordered to be recovered 5 days before his retirement. The recovery of such increments is ordered since he did not pass the professional examination within specified chances as per clause 3 (1 & 2) of Appendix-2 of the Government Resolution dated 24.10.1990. The same reads as under:

"3. If a direct recruit fails to pass the relevant examination as required under these rules, he will not earn any increments in his grade pay, till he passes this examination.

Provides that if in the case of any such person, the State Government is satisfied that he could not pass the examination at which had last chance for reasons beyond by a very narrow margin of marks. The State Government may after recording reasons in writing given him one more chance is pass the examination.

Provided further that the period of probation is less than 3 years, his period of probation shall be extended to such period not exceeding 3 years (Four years in the case of a SC/ST candidate).

Provided further that if a direct recruit does not pass the relevant examination within specified chance and specified period, if his service be other wise satisfactory and or proved efficiency, State Govt. may allow him additional chances. he after expiry of such specified chance and specified period shall be liable to have his increment withheld until he passes the examination.

Any increment withheld shall become payable to him from the date on which he passed examination and all future increments shall accrue to him as if no increment had been withheld, provided, however that he shall not be entitled to claim the arrears or pay which were lost to him by reasons of the increment having been withheld.

xxx xx xxx."

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A perusal of the aforesaid clauses, on which the reliance is placed by the respondents in ordering recovery of increments, will elucidate that the same is applicable to the direct recruit and not the promotees. It is not in dispute that the petitioner was promoted as Deputy Executive Engineer on 07.07.1984 and as per the case of the respondent authority, he was required to pass the examination within 3 specified chances. Thus, the respondents have incorrectly placed reliance on the clause 3(1 & 2) of Appendix-2 of the Government Resolution dated 24.10.1990 for ordering recovery of increments.

8. The petitioner was promoted in the year 1984. The increments were granted in the year 2009. The same are withdrawn in the years 2010. Rule 5 of the Appendix-II, which reads thus:

"Rule 5 Every year the examination shall be held once by the authority specified in Appendix-II and Appendix-IIB."

Thus, during 23 years of service of the petitioner, the respondents did ask the petitioner to undergo the examination. Rule 8 also provides from exemption to those officers who 45 years old or above from passing the professional examination. Nothing is shown on record that prior to 2009, the petitioner was asked to appear in the examination. On the contrary, the petitioner had requested his higher authority to allow him to appear in the examination. Such fact is manifest from the letters dated 25.07.2007 and 2.06.2008 written by the Executive Engineer to Superintending engineer. Thus, the petitioner cannot be made to suffer for the inaction of the respondents in not allowing him to appear in the examination.

9. I may with profit refer to the decision of the Supreme Court in the case of Rafiq Masih (White Washer) and Others (supra), wherein the Supreme Court has formulated the parameters with regard to recovery by the employers and the same would be "impermissible in law" from the employees, whose case is governed under such parameters. The same extracted as below:-

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"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:

(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."

10. The case of the petitioner will fall under parameters (ii) and (iv). As per parameter(ii), the Supreme Court has directed that the recovery is "impermissible in law" from the employees who are due to retire within one year, of the order of recovery. The parameter (iv) will also apply, since it is the case of the respondents that the petitioner has been paid increments of the post of Deputy Executive Engineer, though he was not entitled to.

11. It is also noticed that the impugned order is passed without affording any opportunity of hearing and in violation of principles of natural justice. Today, the petitioner is more than 71 years of age and is bedridden and hence, it would be futile to ask the petitioner to undergo the rigors of undergoing the process of hearing on the issue after so many years, hence, the remand of the matter, for affording any opportunity of hearing is uncalled for.

12. Thus, the writ petition succeeds. The impugned order dated 23.02.2010 is hereby quashed and set aside. The respondents are directed to finalize the pension of the petitioner and pay all the retirement benefits, which are not paid to him within a period of two months from the date of receipt of the writ of this judgment.

13. At this stage, learned advocate Mr.Munshaw has submitted that the

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petitioner may be given an opportunity to file a representation for claiming the interest since considerable long time has passed. Request is acceded to. It will be open for the petitioner to claim the interest on the retirement benefits, after such benefits are paid to the petitioner. It is further clarified that, if the aforesaid amount is not paid within a period of two months, the same shall carry 9% interest per annum. Rule is made absolute.

Sd/-

(A. S. SUPEHIA, J) ABHISHEK/PC-1