Gujarat High Court
Mitenbhai Gopalbhai Solanki vs Bharatbhai Trikamlal Patel ... on 9 August, 2023
Bench: N.V.Anjaria
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 512 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 17712 of 2006
With
CIVIL APPLICATION (DIRECTION) NO. 1 of 2023
In
R/LETTERS PATENT APPEAL NO. 512 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL Sd/-
and
HONOURABLE MR. JUSTICE N.V.ANJARIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or
any order made thereunder ?
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MITENBHAI GOPALBHAI SOLANKI
Versus
BHARATBHAI TRIKAMLAL PATEL SR.CLERK & 4 other(s)
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Appearance:
SHRI DIPAK R DAVE(1232) for the Appellant(s) No. 1,1.1
MS SHRUTI R. DHRUVE, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 4,5
SHRI ANVESH VYAS(5654) for the Respondent(s) No. 1
Page 1 of 17
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RULE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 09/08/2023
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL)
1. Heard Shri Dipak R. Dave, learned counsel appearing for
the appellant, Shri Anvesh Vyas, learned counsel appearing for
respondent No.1 and Ms. Shruti R. Dhruve, learned AGP
appearing for respondent Nos.4 and 5.
2. The appellant herein seeks to challenge the order passed
by the learned Single Judge dated 21.9.2017 in dismissing
Special Civil Application No.17712 of 2006 filed by the appellant
as original writ petitioner, challenging the order dated
17.2.2006 passed by the Gujarat Secondary Education Tribunal
at Ahmedabad in Application No.457 of 1999. It has been
brought before us that during the pendency of the instant
appeal, the writ petitioner viz. the appellant herein had died and
his heirs and legal representatives have been substituted to
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maintain the instant appeal.
3. The facts relevant to decide the controversy at hand, in
brief, are that the writ petitioner, viz. the appellant was
appointed as Junior Clerk in the respondent institution in the
year 1981. Respondent No.1, on the other hand, was appointed
as Senior Clerk with effect from 1.8.1986. However, under an
illegal arrangement by way of mutual consent, they (petitioner
and respondent No.1) had exchanged their posts and the
petitioner started serving as Senior Clerk with effect from June
1988 and in the same manner, respondent No.1 served as Junior
Clerk from June 1988. The said mutual arrangement was
intimated to the District Education Officer vide letter dated
23.5.1988, who had extended its consent to the inter-
changeability of posts vide letter dated 2.6.1988 addressed to
the Head Master of the institution.
4. In the order passed by the Tribunal, it is recorded that
though respondent No.1 was shifted to the post of Junior Clerk
from June 1988 under an illegal arrangement, but he continued
to be paid basic salary of the post of Senior Clerk. The petitioner
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- appellant was also extended the salary of Senior Clerk from
June 1988. The result was that though there was only one post
of Junior Clerk and one post of Senior Clerk in the institution,
but two employees continued to receive salary of the post of
Senior Clerk, in view of the approval granted by the District
Education Officer. It is, thus, rightly recorded by the Tribunal
that the District Education Officer was responsible for the
illegality, both in permitting to exchange the posts and
continuing to pay salary of Senior Clerk to two employees
against one post.
5. It is noted by the learned Single Judge that consequent to
the revision of the pay scale on implementation of 4 th Pay
Commission, realising that his pay had not been revised as per
his post of Senior Clerk, the respondent no.1 filed application
before the Tribunal in the year 1999. The claim of respondent
No.1 before the Tribunal was that though he got shifted himself
on the post of Junior Clerk in the basic pay scale, but his salary
was required to be revised as that of Senior Clerk with effect
from 1.1.1996 on implementation of 5th Pay Commission. It was
also asserted that respondent No.1 had to give consent to the
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aforesaid illegal arrangement under the pressure of the then
Managing trustee who was father of the petitioner - appellant.
The Tribunal, after exchange of affidavits between the parties,
came to the conclusion that though the explanation offered by
respondent No.1 in entering into a mutual settlement was
unacceptable but since he was appointed on the post of Senior
Clerk with effect from 1.8.1986, no illegality can be attached to
the fact that he had received salary of Senior Clerk. However,
the petitioner - appellant herein was not entitled either to be
appointed on the post of Senior Clerk or to receive salary, as the
arrangement by mutual consent dated 23.5.1988 was absolutely
illegal, unjustified and unreasonable. The illegality which had
commenced with the mutual settlement dated 23.5.1988 cannot
be allowed to be perpetuated. The approval granted by the
District Education Officer dated 2.6.1988 was held illegal and it
was directed that respondent No.1 shall be treated as Senior
Clerk from 1.8.1986 onwards, for all purposes. In the same
manner, the petitioner - appellant shall be treated as Junior
Clerk for all purposes duly appointed as such since 1981.
6. As regards the payment of benefits to respondent No.1 to
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the post of Senior Clerk, it was held that he shall be treated as
Senior Clerk notionally upto 8.12.1999, being previous day of
filing of the petition before the Tribunal on 9.12.1999. The
competent authorities were directed to assess the salary of
respondent No.1 notionally, by calculating all the benefits which
accrued in the interregnum. It was further directed that even if
respondent No.1 had been paid less salary, he was not entitled
for any further financial benefits uptil 8.12.1999, as he was
party to the illegalities.
7. However, with regard to the petitioner - appellant, it was
held that his salary is to be fixed notionally as Junior Clerk since
1981 and after the re-fixation, there shall be no recovery uptil
8.12.1999. However, the payments made to the petitioner after
8.12.1999, if in excess, may be recovered by complying the
principles of natural justice. In the same manner, in case less
salary had been paid to the petitioner as admissible to the post
of Junior Clerk, difference may be paid.
8. The respondent authorities were, thus, directed to treat
respondent No.1 as originally appointed as Senior Clerk and the
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petitioner - appellant as Junior Clerk. It was also directed that
both respondent No.1 and the petitioner - appellant shall be
treated as duly promoted notionally as Head Clerk and Junior
Clerk; respectively, from 20.10.1999 being the date of their
respective promotion on the post of Head Clerk and Senior
Clerk, as approved in the letter dated 29.4.2000 of the District
Education Officer. It was further directed that both respondent
No.1 and the petitioner - appellant shall be entitled for fixation
of salary notionally on or before 30.4.2006 and the proposal, in
this regard, be sent to the office of the District Education Officer
along with the service book on or before the said date. The
direction has further been issued that both respondent No.1 and
the petitioner - appellant shall be required to give undertaking
to cooperate in the exercise for computation of salary and that
they shall discharge their duties as Senior Clerk and Junior
Clerk; respectively.
9. The above noted directions contained in the order of the
Tribunal have been approved by the learned Single Judge by
holding that the contract or arrangement, if any, made between
the management of the petitioner and respondent No.1 herein,
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was null and void, in view of Section 37 of the Gujarat
Secondary Education Act, 1971. The interference, if any, in the
order of the Tribunal, will revive the illegal action of both the
petitioner and respondent No.1, which would be prejudicial to
the interest of law. On the plea of the petitioner that the
Tribunal ought not to have entertained the application of
respondent No.1 as it was marred by delay, it was held by the
learned Single Judge that incorrect pay fixation will fall under
the category of continuous wrong and the claim of respondent
No.1 about the pay fixation and grant of higher pay scale on
such pay fixation cannot be discarded on the ground of delay. It
was further observed that so long as the employee is in service,
the cause of action arises every month when he has been paid
monthly salary. The only exception is the claim of affecting
several others, which is not attracted in the instant case.
10. Having noted the above, we are required to note the
arguments of the learned counsel appearing for the appellant
who seeks to challenge the order passed by the Tribunal and the
judgment of the learned Single Judge on the ground of delay
and the plea of estoppel and acquiescence. It was argued that
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there was an inordinate unexplained delay on the part of
respondent No.1 to approach the Tribunal in raising the
grievance with regard to the arrangement under which the
petitioner - appellant had been appointed as Senior Clerk. With
the passage of time, the petitioner - appellant had further been
promoted to the post of Head Clerk and respondent No.1 to the
post of Senior Clerk with effect from 1.3.1999. It was thus, the
contention of the learned counsel appearing for the petitioner -
appellant that there was no occasion for the Tribunal to
interfere in the arrangement, for which no dispute was raised by
respondent No.1 uptil 9.12.1999. With the order of the Tribunal,
as affirmed by the learned Single Judge, the petitioner -
appellant has been stagnated to the post of Junior Clerk though
in the ordinary course, he would have been promoted to the
post of Senior Clerk. The petitioner - appellant cannot be
treated to have been appointed and continued on the post of
Junior Clerk till his death. Even the benefit of revision of pay
scale to the post of Junior Clerk has not been accorded to the
petitioner as the Tribunal had directed for fixation of salary of
the petitioner and respondent No.1 notionally.
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11. The conetntion is that the Tribunal has decided the matter
on 17.2.2006 which was filed before it on 9.12.1999, in the
meantime, the petitioner was promoted to the post of Head
Clerk on 20.10.1999 and has continued to work on the said post.
The Tribunal has, thus, erred in directing for recovery of salary,
in excess to the post of Junior Clerk, received by the petitioner
after 8.12.1999. In the writ petition, which was filed on
29.3.2006, this Court had granted interim order on 25.1.2007 to
maintain status quo qua service condition of the petitioner. The
same relief was granted in the instant appeal vide order dated
19.6.2019. The result is that the petitioner - appellant has been
allowed to continue to work as Senior Clerk and Head Clerk,
and to receive salary for the post in question. The learned
Single Judge, while observing that no recovery was ordered by
the Tribunal, has failed to take note that the Tribunal has
ordered for recovery of excess salary after 8.12.1999. It is, thus,
submitted that the petitioner cannot be held responsible for
receipt of salary of the post of Senior Clerk and Head Clerk as
he had actually worked on the said posts under the orders
passed by this Court in the writ petition as well as in the instant
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appeal. Any recovery at this stage of the proceeding would have
serious adverse consequences for the heirs and legal
representatives of the deceased petitioner - appellant No.1
herein who cannot be said to be at fault. The submission, thus,
is that even if it was found by the Tribunal that mutual consent
arrangement was illegal and the said view has been affirmed by
the learned Single Judge, at least the writ petitioner - appellant
was entitled to retain the payments made to him under the
aforesaid arrangement and also the interim orders granted by
this Court. With the dismissal of the writ petition affirming the
order passed by the Tribunal, the direction of the Tribunal for
recovery of excess salary paid to the petitioner after 8.12.1999
stood affirmed.
12. It was, thus, submitted by the learned counsel appearing
for the petitioner - appellant that this is a case worth
consideration invoking equitable jurisdiction of this Court.
13. Dealing with the above submissions, we are required to
note that no infirmity can be attached to the order of the
Tribunal which was passed to remedy an illegal situation. No
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illegality can be found in the directions contained in the order of
the Tribunal that the petitioner - appellant herein is entitled to
salary fixed notionally as Junior Clerk since 1981, and that on
re-fixation, there shall be no recovery of salary till 8.12.1999.
The petitioner - appellant herein is also not aggrieved by this
part of the order of the Tribunal. The grievance raised in the
instant appeal, as per the submission of the learned counsel for
the petitioner - appellant, on behalf of the heirs and legal
representatives of the deceased petitioner - petitioner, is about
the recovery of excess salary as a consequence of the order of
the Tribunal, after 8.12.1999.
14. The fact remains that till the disposal of the application,
filed on 9.12.1999 by respondent No.1 with the order dated
17.2.2006 of the Tribunal, the petitioner - appellant herein had
continued to work as Senior Clerk from June 1988 and Head
Clerk from 20.10.1999 and had received salary of the said posts.
Even after the decision of the Tribunal, under the interim orders
dated 25.1.2007 and 19.6.2019, the petitioner - appellant
continued as Head Clerk and salary of the said post was paid to
him till the date of his death. The recovery of payments received
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by the petitioner - appellant, though made under an illegal
arrangement made at the instance of the management of the
school and the District Education Officer, but would have
serious adverse consequence on the heirs and legal
representatives of the deceased petitioner, who cannot be said
to be at fault. Considering the peculiar situation of the instant
case, in the above perspective, we are required to invoke our
equitable jurisdiction to balance the equities between the
parties.
15. Balancing the equities, we have reached at the conclusion
that as payments had been made from public exchequer under
an illegal arrangement and there cannot be any dispute about
the fact that the petitioner - appellant was not entitled to hold
the post of Senior Clerk, the affirmation of the order of the
Tribunal that the petitioner - appellant shall continue to be
treated as Junior Clerk since 1981, the date of his appointment,
by the learned Single Judge, cannot be said to suffer from any
error of law. We may further note that no error can be found in
the direction issued by the Tribunal to treat the petitioner -
appellant as Junior Clerk even from the date from which he was
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promoted as Head Clerk, i.e. 20.10.1999 and further for fixation
of his salary notionally. No infirmity can be found in the
directions of the Tribunal to permit the petitioner - appellant to
work as Junior Clerk from the date of its decision, i.e. 17.2.2006.
16. Only because of the fact that the petitioner has been
allowed to continue to work as Head Clerk under the interim
orders passed by this Court in the writ petition as well as in the
appeal, he cannot be treated as having been continued legally
on the post of Head Clerk. However, it is provided that no
recovery of the payments already made to the petitioner -
appellant for the post of Head Clerk, because of continuance on
the said post till the date of his death, shall be made, but the
terminal benefits admissible to the family members of the
deceased petitioner - appellant cannot be computed treating the
petitioner as having continued on the post of Head Clerk,
legally. In case the terminal benefits or any other consequential
benefits admissible to the family members of the deceased
petitioner - appellant, are computed corresponding to the post
of Head Clerk, as contended by the learend counsel for the
petitioner - appellant, it would amount to perpetuate an
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illegality, to which the petitioner himself was party.
17. For the aforesaid, while modifying the order of the
Tribunal dated 17.2.2006 and the judgment impugned of the
learned Single Judge, we provide that -
(i) The petitioner - appellant herein shall be treated to
have continued to work as Junior Clerk notionally
uptil the date of his death / retirement;
(ii) The excess payments already made to the petitioner -
appellant on account of continuance on the post of
Head Clerk after 8.12.1999 under the interim orders
of this Court, till the date of his death / retirement,
shall not be recovered from the family members /
heirs and legal representatives of the writ petitioner
- appellant;
(iii) However, the terminal benefits / family pension /
other benefits, if any, admissible to the family
members of the deceased petitioner, shall be
computed treating the petitioner as having been
continued on the post of Junior Clerk till the date of
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his death. While making the said computation, the
benefit of pay revision to the post of Junior Clerk, if
available, as per law, shall be taken into account.
Meaning thereby all the benefits as admissible to the
post of Junior Clerk treating the petitioner as having
worked on the said post notionally shall be duly
computed and be adjusted against the excess
payment already made to the petitioner. This would
also facilitate the adjustment of the excess salary
received by the petitioner - appellant herein on the
post of Senior Clerk and Head Clerk to some extent,
as directed by the Tribunal;
(iv) It is clarified that the computation of terminal
benefits / family pension, etc., if any, admissible to
the heirs and legal representatives of the deceased
petitioner - appellant herein, shall be duly made,
strictly in accordance with the above directions and
in any case, as directed above, if some excess
payment has already been made, the same shall not
be recovered. However, the heirs and legal
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representatives of the deceased petitioner - appellant
herein will not be entitled to receive any further
benefit on account of illegal continuance of the writ
petitioner on the post of Senior Clerk or Head Clerk.
They are only entitled for the terminal benefits
admissible to a family member as per the legal
provision, treating the petitioner - appellant herein
having continued on the post of Junior Clerk till the
date of his death.
18. Subject to the above, the appeal stands disposed of. In
view of the disposal of appeal, civil application does not survive
and is accordingly, disposed of.
(SUNITA AGARWAL, CJ )
(N.V.ANJARIA, J)
Bharat
