Gujarat High Court

Leelamma Mani Pazhopparambil vs State Of Gujarat on 19 July, 2022

Bench: Biren Vaishnav

     C/SCA/7252/2019                               ORDER DATED: 19/07/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 7252 of 2019

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                       LEELAMMA MANI PAZHOPPARAMBIL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
MR AMAR D MITHANI(484) for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4
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 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 19/07/2022

                                ORAL ORDER

1. Heard Ms. Harshal Pandya, learned advocate

appearing for the petitioner and Mr. Kurven Desai,

learned AGP for the respondent State.

2. The petitioner has prayed to quash and set aside the

impugned order dated 07.04.2012 and to direct the

respondents to finalize the pension case of the petitioner

considering pay last drawn by her after appropriate

revision of it and recalculate retirement dues accordingly

and also make payment of difference thereof with

interest. The petitioner has also prayed to refund the

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amount recovered from the petitioner and to make

payment of arrears with interest.

3. Ms. Harshal Pandya, learned advocate appearing for

the petitioner submits that similar orders as challenged in

the present petition were challenged before this court

earlier by way of Special Civil Application No. 9641 of

2009 by which this court granted relief in favour of the

petitioner therein and therefore similar relief may be

extended to the present petitioner also.

4. Mr. Kurven Desai, learned AGP appearing for the

State has opposed this petition on the ground of delay.

He would submit that the parity claimed by the petitioner

to the petitioner of Special Civil Application No. 9641 of

2009 cannot be claimed as even after the order which

was passed in the year 2017 the present petitioner has

approached this court in the year 2019 only. He

submitted that even subsequently on 09.12.2018 in

Special Civil Application No. 3898 of 2011 and allied

matters in a similar case this court only directed that the

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cases of the petitioners therein be examined in light of

the judgement rendered in Special Civil Application No.

9641 of 2009. He submitted that no mandatory directions

may be therefore issued in favour of the petitioner on

account of delay.

5. It is undisputed that the issued involved in the

present petition is decided by this court by way of Special

Civil Application No. 9641 of 2009 in which the order of

the co-ordinate bench reads as under:

"11. The undisputed facts of the present case are that the petitioner was appointed as Auxiliary Nurse and Midwife (A.N.M) on 10.05.1974 in the Veraval Patan Joint Municipality, Veraval. Thereafter, she was promoted as Staff Nurse on 30.06.1979. The State Government took over the hospital in the year 2001 vide resolution dt.14.08.2001, and the services of the petitioner along with other employees and officer stood transferred to the Government. The entire service is treated as continuous service for the purpose of retirement benefits. All the 32 employees of Municipality were placed under Commissioner

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of Health Service (Medical Division).

12. The pay-scale prescribed for the Staff Nurse at Item No.6 in the appendix attached to the said Resolution dt.14.08.2001 is Rs.1600 2600. Thus, the petitioner, who was working as a Staff Nurse when the said resolution was issued is entitled to the pay-scale of Rs.1600 2600. The petitioner retired as Staff Nurse on 31.07.2009. Till her retirement i.e. on 31.07.2009, the respondent authorities never raised any objection qua grant of pay-scale of Rs.1600 2600. It is when her pension papers were processed and were to be finalized, the respondent authorities woke up from the slumber and reduced her pay-scale from Rs.1600 2600 to Rs.950 1500 with retrospective effect from 12.07.2000. Her pay fixation was also done by the impugned order dated 16.01.2010, Annexure-G. The impugned order dated 16.01.2010 was passed in blatant violation of principle of nature justice. No opportunity of hearing was afforded to the petitioner before reducing her pay-scale with retrospective effect. Thus, the impugned order being in violation of principles of natural justice is liable to be quashed and set aside.

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13. The contention raised by the respondent authorities that she was not qualified as Staff Nurse as per Recruitment Rules promulgated under notification dated 11.06.1991 is also misconceived. The notification prescribing the Staff Recruitment Rules was issued in 1991 for the direct selection of the Staff Nurse. It is not the case of the respondents that the same carried a retrospective effect. This court fails to understand that how the notification issued in 1991 will apply is the case of the petitioner who was promoted in the year 1979 as a Staff Nurse while she was working in the hospital run by Veraval Patan Joint Municipality. Thus, the aforesaid contention of not possessing requisition qualification by the petitioner to the post of Staff Nurse is absolutely misconceived and is liable to be rejected.

14. Learned AGP has relied on the Resolution dated 13.11.2009 passed by the State Government for fixing the pay-scale as per the revision of Rules, 1981. He has stated that as per Item No.4, in the statement reproduced in the said Resolution, A.N.M. (Auxiliary Nurse and Midwife) would be entitled to the pay-scale of Rs.950-1500 and the pay-scale prescribed for Staff Nurse is Rs. 1350 2200. It is pertinent to

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note that the resolution dt.13.11.2009 is issued after retirement of the petitioner, i.e. 31.07.2009. The petitioner had no opportunity to deal with the same. The respondent authorities had finalized the pension case of the petitioner vide pension payment order dated 08.02.2010, which was much less than her entitlement and further more, the amount has been recovered from the retirement dues of the petitioner. The pay-scale of the petitioner is re- fixed with retrospective effect from 12.07.2000 by the order dated 16.01.2010 i.e. after delay of more than 10 years that too after her retirement. No efforts were made by the respondent authorities questioning her pay- scale granted in the year 2000. All the orders fixing her pay scale are subject to verification of Audit Department, Pay and Account Office who never informed that pay-scale granted to her was erroneous. In that view of the matter, the impugned order dated 25.09.2009 and 16.01.2010 suffer from delay and laches and are required to be quashed and set aside.

15. So far as contention raised about the recovery from the C.P.F. amount, learned advocate Ms.Pandya has fairly stated that the petitioner is liable to refund the same as is

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prescribed under the rules sans any penal interest. Learned AGP is unable to point out any provision of lay which prescribes imposing of penal interest on the amount of C.P.F.

16. Apropos the recovery of the amount effected due to refixation of pay is concerned the same will be governed by exception (ii) of Supreme Courts judgment in the case of Rafiq masih(supra) wherein any recovery from a retired employee is prohibited. Apropos the undertaking tendered by the petition is concerned, the same cannot act as predicament since the same is a conditional undertaking. The petitioner had agreed for recovery subject to decision of this Court.

17. In view of the foregoing reasons, present petition is allowed with the following directions:-

(a) The impugned orders dated 25.06.2009 and 16.01.2010 are quashed and set aside. The petitioner will be entitled to all consequential benefits. The pension of the petitioner shall be fixed on the basis the actual last pay drawn. Her retirement benefits are also required to be

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revised and re-fixed. The arrears shall be paid with interest of 9% from the date of filing of present petition.

(b) The amount liable to be refunded by present petitioner as per the letter dated 19.02.2010 shall be re-calculated by the respondent authorities ignoring penal interest on C.P.F and E.P.F amount. The petitioner shall be given an opportunity of hearing before adjustment of the said amounts.The amount of E.P.F. pension i.e. Rs.77,299/- shall be adjusted towards the arrears of the retirement benefits which are directed to be paid to the petitioner. It is clarified that aforesaid amounts shall be calculated on the basis of the pay scale which she received prior to passing of the impugned orders.

(c) The amount of Rs.83,956/- recovered from the petitioner because of the reduction of pay shall be refunded to her with 9% interest.

(d) So far as prayer seeking the leave encashment amount of 233 days is concerned, the respondent no.5 has filed an affidavit stating that petitioner is paid an amount toward revised leave encashment and salary as per

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Revision of Pay 1998 and Revision of Pay 2009. In view of the dispute regarding the calculation of number of days, I refrain myself from expressing opinion on the same. In case the petitioner is not paid leave encashment as per her credit, the same shall be reconsidered by the respondent authorities by giving opportunity of hearing to the petitioner.

The respondents shall complete the entire exercise and pass appropriate orders within a period of three months from today.

With the aforesaid observations and directions, present petition stands disposed of. Rule is made absolute."

6. In view of the above order, the present petition also

deserves to be allowed in the above terms. Accordingly

the following order is passed:

(a) The impugned order dated 07.04.2012 is quashed and

set aside. The petitioner will be entitled to all

consequential benefits. The pension of the petitioner shall

be fixed on the basis the actual last pay drawn. Her

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retirement benefits are also required to be revised and re-

fixed. The arrears of pension shall be paid with effect