Gujarat High Court
State Of Gujarat vs Nathubhai Salubhai Katara on 11 January, 2023
Bench: Niral R. Mehta
C/LPA/1382/2022 ORDER DATED: 11/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1382 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 11243 of 2015
With CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 1382 of 2022
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STATE OF GUJARAT
Versus
NATHUBHAI SALUBHAI KATARA
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Appearance:
MR MANAN MEHTA, AGP for the Appellant(s) No. 1,2,3,4,5
MR VAIBHAV A VYAS(2896) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 11/01/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned advocate Mr.Manan Mehta for the appellant
State.
2. The challenge in this Letters Patent Appeal under Clause
15 of the Letters Patent is addressed by the State to judgment
and order dated 1.2.2022 of learned single Judge in Special Civil
Application No.11243 of 2015.
2.1 Thereby the learned single Judge allowed the Special Civil
Application filed by the petitioner- respondent herein, set aside
the order dated 18.5.2015, whereby the respondent authority
had ordered cancellation of higher pay scale granted to the
petitioner and in pursuance, recovery of Rs.4,07,606/- from the
petitioner was ordered by passing consequential orders.
3. In the Special Civil Application what was prayed by the
petitioner was to set aside the aforesaid order dated 18.5.2015
C/LPA/1382/2022 ORDER DATED: 11/01/2023
whereby the first higher pay scale of the cadre of Police Sub
Inspector allowed for the petitioner as back as on 15.7.1995 was
cancelled. The ground stated in the said order for cancellation of
the pay scale was that conditions of Resolution dated 16.8.1994
under which such benefit were made available were not
satisfied, specifically stated the conditions about passing of
departmental examination.
3.1 The petitioner joined the services as Police Constable,
thereafter came to be promoted as Head Constable, the next
promotion was to the post of Assistant Sub Inspector. At this
stage he was granted first higher pay scale of the post of Police
Inspector upon completion of nine years of service in the cadre
of Assistant Sub Inspector. The higher pay scale was granted
with effect from 21.8.1987. Finally the petitioner came to be
promoted to the post of Police Sub Inspector in the year 2003.
3.2 After the petitioner attaining the age of superannuation on
30.6.2007, the impugned orders came to be passed cancelling
the higher pay scale and seeking recovery. It appears that there
were some litigation faced by the petitioner. Upon conclusion
whereof, the petitioner approached for grant of 6 th Pay
Commission and retiral benefits by filing Special Civil
Application. While the above aspects are mentioned only for the
purpose of completion of narration of facts, learned single Judge
found that the orders of cancellation of higher pay scale was bad
in law for the reason that the petitioner earned exemption
under the conditions of the Resolution in question having
attained the age of forty-six years.
C/LPA/1382/2022 ORDER DATED: 11/01/2023
4. Learned Assistant Government Pleader was able to
demonstrate that the said ground on which the reasoning of the
learned single Judge was rested, was erroneous as the petitioner
was below forty-six years and could not have been exempted
from appearing in the departmental examination which was
according to the case of the respondent was a condition to be
fulfilled to be entitled to the higher pay scale.
4.1 The higher pay scale came to be granted to the petitioner
by order dated 15.7.1995 with effect from 21.8.1987 and the
petitioner was placed in the scale of Rs.1640-2900/- from the
anterior date. The petitioner continued to receive the benefit of
said higher pay scale till he was superannuated in the year 2007.
5. In light of the aforesaid facts, two conspicuous aspects
surface. Firstly that the orders of cancellation and the recovery
were passed by the authorities after the petitioner left the
service upon reaching the age of superannuation. Secondly, the
orders canceling the higher pay scale was passed after passage
of eight years. Reckoned from the date 15.7.1995 when the
order granting the pay scale was passed, there was a delay of
twenty years on part of the authorities in seeking to cancel the
benefit of higher pay scale which the petitioner received
throughout till the superannuation.
5.1 The aforesaid delay was unexplained. The very reason of
passing the order after allowing the passage of eight years
would render the decision of cancellation arbitrary. In effect it
was after two decades that the order passed in the year 1995
was sought to be recalled.
C/LPA/1382/2022 ORDER DATED: 11/01/2023
5.2 In that view, the principle of estoppel would arise to
operate against the authorities. The authorities cannot be
permitted to unsettle the past for the petitioner by withdrawing
the benefit which the petitioner earned and altered his position
to his detriment and even retired from service.
6. Considering these aspects, grounds of exemption sought to
be urged by the appellant State fails into insignificance and
notwithstanding the said aspect, the impugned orders stand bad
in law.
6.1 Even otherwise, once the petitioner is retired and long
time has passed by, reversing the orders or allowing the
appellant authorities to give effect to the orders of withdrawal
would operate too harsh and inequitable tentamounting to
breach of equality clause against the petitioner.
6.1 In the facts and circumstances of the case, this court is not
inclined to interfere with the order of learned single Judge.
7. The present challenge thereto in the appeal is meritless.
The Letters Patent Appeal is dismissed. In view of dismissal of
the main appeal, the Civil Application will not survive,
accordingly it is disposed of.
(N.V.ANJARIA, J)
(NIRAL R. MEHTA,J)
Manshi
