Rameshchandra Rasiklal Raval vs Gujarat Water Supply & Sewerage ...
2023 Latest Caselaw 336 Guj

     C/SCA/11806/2016                               JUDGMENT DATED: 12/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 11806 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL                                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 ?
                                                                         NO
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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                 RAMESHCHANDRA RASIKLAL RAVAL
                             Versus
        GUJARAT WATER SUPPLY & SEWERAGE BOARD & 2 other(s)
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Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
RC JANI & ASSOCIATE(6436) for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                Date : 12/01/2023

                               ORAL JUDGMENT

1. Heard learned Advocate Ms.Harshal Pandya for the petitioner and learned Advocate Mr.Vishrut Jani for M/s.R C Jani and Associate for the respondents No.1, 2, and 3.

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2. By way of this petition, the petitioner challenges orders passed by the respondent Authorities dated 5.3.2012 and 28.6.2012, whereby the respondent Authorities have sought to set aside the orders, whereby the benefits of First Higher Pay-scale and Second Higher Pay-scale granted to the petitioner have been revoked and whereas it has been clarified that there shall not be any recovery on account of such revocation.

3. Learned Advocate Ms.Harshal Pandya would draw the attention of this Court to a decision of a learned Coordinate Bench of this Court (Coram: Mr. Justice J.B. Pardiwala - as he then was) in Special Civil Application No.17170 of 2012 and allied matters dated 9.7.2015, wherein according to the learned Advocate Ms.Pandya, the learned Coordinate Bench was dealing with a similar issue raised by the petitioners similarly situated and whereas according to the learned Advocate, by way of the said judgement, the learned Coordinate Bench had been pleased to set aside the decision of the respondent Authorities, whereby the grant of First and Second Higher Pay-scales has been revoked. Learned Advocate Ms.Pandya for the petitioner would submit that having regard to the observations made by the learned Coordinate Bench of this Court in the said decision, and further considering the said decision has become final between the parties, since no appeal has been filed by the respondents against the same, therefore, on such ground, the present petition may be allowed by this Court, and whereas the impugned order may be set aside by this Court.

4. Learned Advocate Mr.Vishrut Jani for the respondents, while he could not dispute the fact that the common judgement dated 9.7.2015 passed by the learned Coordinate Bench of this Court was in a similar instance, in case of similarly situated persons and whereas learned Advocate Mr.Jani would contest the present petition on the ground of unexplained

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delay and laches. Learned Advocate Mr.Jani would submit that the order in question is dated 5.3.2012 and whereas the present petition has been preferred in the month of July 2016 i.e. approximately after more than four years. Learned Advocate Mr.Jani would submit that the present petitioner was a fence-sitter i.e. the petitioner having waited for the petitions, which were decided by the learned Coordinate Bench of this Court vide judgement dated 9.7.2015 and it is only after the said decision had been passed by the learned Coordinate Bench that the present petitioner had started agitating for his rights. Learned Advocate Mr.Jani would submit that considering the fact that the petitioner had not raised any claim in the interregnum period of four years, for such reason only, on the ground of unexplained delay, the present petition may not be entertained by this Court. Learned Advocate Mr.Jani, in support of his contention, would rely upon the decision of the Hon'ble Apex Court in case of State Bank of Indore Vs. Govindrao, reported in (1997) 2 SCC 617 as well as the decision of the Hon'ble Apex Court in case of State of Jammu and Kashmir Vs. R. K. Zalpuri and Ors., reported in (2015) 15 SCC 602. Relying upon the said decisions, learned Advocate would request that this petition may not be entertained by this Court.

5. Considering the very limited challenge made by the learned Advocate Mr.Jani for the respondents, this Court deems it appropriate to deal with the same at this stage, more particularly to decide the issue as to whether the petition could be rejected on the ground of gross and unexplained delay. At the outset, it would be required to be noted that both the decisions relied upon by the learned Advocate Mr.Jani for the respondents are in cases where the employee had been subjected to an order of dismissal and whereas the said order had been challenged after a gross delay, in the former judgement i.e. in case of State Bank of

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Indore (supra), after a lapse of nearly 10 years, whereas in the latter judgement in case of State of Jammu and Kashmir (supra), after a lapse of 5½ years. As against the same, it would be pertinent to mention that the petitioner by way of the present petition has challenged an order, whereby benefit of First and Second Higher Grades has been cancelled by the respondent Authorities. In the considered opinion of this Court, the considerations which weigh with the Court while deciding an application challenging an order of dismissal and while deciding an application questioning revocation of grant of higher pay-scale would not stand on equal footing. It would be further required to be mentioned that upon dismissal of an employee, the employer is entitled to fill up the post, which falls vacant on account of such dismissal and whereas the filling up of the post would result in third party rights being created. Furthermore, the dismissed employee in case of interference would be entitled to claim for back-wages etc., and whereas for such period when the employee had neither worked, nor challenged the order of dismissal, the employee would seek for compensation, which would also be an aspect, which would be required to be considered. Most importantly, delayed challenge to an order of dismissal would also reflect upon the fact of whether the employee concerned is interested in continuing with the employment from which he had been dismissed. Certainly, an employee who challenges an order of dismissal after ten years could be reasonably presumed not to be interested in continuing with his employment any further and whereas the delayed challenge could be nothing but a luxury litigation filed by the employee for the purpose of eking out some benefit from the employer.

5.1. As against the same, the present case stands on a totally different footing. It requires to be noted that the benefit of higher pay-scale had been accorded to the employee somewhere in the year 1987 and

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whereas the same had been revoked by way of the impugned order passed in the year 2012 i.e. order dated 5.3.2012. It also requires to be noted that prior to the order dated 5.3.2012 being passed, the respondents had passed the order, whereby the respondents had revoked the second higher pay-scale granted to the petitioner and whereas the said revocation had been challenged by the present petitioner by preferring a writ petition being Special Civil Application No.2095 of 2011 and whereas vide an order dated 11.3.2011 a learned Coordinate Bench of this Court (Coram: Smt. Justice Abhilasha Kumari - as she then was) had been pleased to set aside the impugned order and directed the respondents to pass orders afresh after hearing the petitioner. It appears that while the petitioner had challenged revocation of Second Higher Grade, after giving an opportunity of hearing to the petitioner, the respondents had revoked both the First and Second Higher Pay-scales.

5.2. Furthermore, most importantly and the most mitigating circumstance in the instance case, would be the fact that the present petitioner had retired in the year 2008. It appears that three years after the retirement of the present petitioner, for the first time, the respondents had, at the first instance, cancelled the second higher grade made available to the petitioner, which was the subject matter of the earlier writ petition. Thereafter, the respondents appear to have passed the present impugned order and whereas, according to the respondents, a retired employee is required to keep on continuously challenging the orders passed by the respondents, however illegal they may be at his own cost and risk, more particularly when such orders have the effect of prejudicing the employee financially. It would also be required to be mentioned here that the respondent is a State entity and whereas respondents

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were already respondents in a litigation preferred by similarly situated employees i.e. the petitions referred to herein above being SCA No.17170 of 2012 and allied matters. As noted herein above, a learned Coordinate Bench of this Court, vide order dated 9.7.2015 had been pleased to set aside the orders, revoking grant of First and Second Higher Pa-scales to similarly situated employees and as noted herein above, it also appears that the respondents have not challenged the said decision before any higher forum. Under such circumstances, in the considered opinion of this Court, having accepted the decision of this Court in case of similarly situated employees, ideally as a State employer it was incumbent rather mandatory upon the respondents to have passed on the same benefits as accorded by the judgement dated 9.7.2015 to similarly situated employees and whereas having not done so, in the considered opinion of this Court, the respondents would be precluded from making any submissions with regard to delay.

5.3. Furthermore, this Court also seeks to rely upon paragraph 24 of the decision of the Hon'ble Apex Court in case of State of Jammu and Kashmir (supra) as relied by the learned Advocate Mr.Jani for the respondents:-

"24. At this juncture, we are obliged to state that the question of delay and laches in all kinds of cases would not curb or curtail the power of writ court to exercise the discretion. In Tukaram Kana Joshi And Ors. Vs. Maharashtra Industrial Development Corporation & Ors[11] it has been ruled that:-

"12 ... Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be

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mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience".

And again:-

"14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners. (Vide Durga Prashad v. Chief Controller of Imports and Exports[12], Collector (LA) v. Katiji[13], Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur[14], Dayal Singh v. Union of India[15] and Shankara Coop. Housing Society Ltd. v. M. Prabhakar[16].)"

5.4. The Hon'ble Apex Court, while deciding the said case, had inter alia relied upon the decision in case of Tukaram Kana Joshi Vs. Maharashtra Industrial Development Corporation, reported in (2013) 1 SCC 353, where the Hon'ble Apex Court had inter alia held that while considering the aspect of whether writ petition is delayed or not, no hard and fast rule could be laid down and whereas the aspect of delay has to be considered from the view point of any mitigating factors or continuity of cause of action, etc. Hon'ble Apex Court had also inter alia held that "if the whole thing shocks the judicial conscience, then the Court should exercise the judicial

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discretion more so, when no third party interest is involved". In the instant case, as noted herein above, the fact of the present petitioner having retired in the year 2008, whereas the impugned order having been passed in the year 2012 is certainly a mitigating factor and whereas the fact that the employee receiving lesser pension than he would have been otherwise entitled to, if the intervening action of the respondents of cancelling the grant of first higher pay-scale would fall under the realm of continuing cause of action. As noted by the Hon'ble Apex Court and as noted by this Court herein above, the exercise of the respondents in cancelling the higher pay-scale to the employee four years after the employee having retired, shocks the judicial conscience of this Court and whereas the action on part of the respondents of not passing the benefits of the decision of the learned Coordinate Bench of this Court dated 9.7.2015 to similarly situated employees, more particularly in spite of the fact that the said decision has not been challenged by the respondents is also an aspect which shocks the judicial conscience of this Court. Having regard to the same, in the considered opinion of this Court, the aspect of delay which has been raised by the respondents cannot be countenanced.

6. Insofar as the merits of the issue are concerned, as noted herein above, a learned Coordinate Bench vide the decision dated 9.7.2015 was dealing with a similar issue and whereas the observations of the learned Coordinate Bench are relied upon more particularly paragraphs 12 to 20, being relevant for the present purpose are reproduced herein below for benefits:-

"12. There is a definite object and philosophy underlying the grant of the higher grade payscale to the employees, be it of the State Government or any Board or any Corporation. The object is to see that an employee does not get stagnated on one particular post, which may lead to frustration. The whole object is to see that the

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efficiency of an employee is not affected because of stagnation. This is the object with which the State Government introduced the policy of the grant of higher pay grade scale. Of course, it goes without saying that such grant is subject to the rules and regulations.

13. In the present case, what I find is that the Board itself has admitted that there were Standing Instructions dated 28.10.1996 for grant of the first higher grade scale of the cadre of Driller/Foreman upon completion of 9 years of service in the cadre of Fitter, which is now sought to be cancelled on the basis of the Rules of 1997 applying the same retrospectively.

14. Indisputably, till 1997 there were no rules in the Board, and in the absence of the same, the Standing Instructions prevailed at that point of time. If the benefits were granted under the earlier rules or policy, the same could not have been withdrawn by application of the new rules retrospectively, much to the detriment of the interest of the petitioners.

15. Ms. Pandya pointed out that it is not disputed that the first higher grade scale Rs.16402900 was granted pursuant to the Instructions of 1996 but promotions were also given from the cadre of Fitter to Driller/Foreman. Such orders have been annexed as Annexure'J' to this petition which indicate that the employees were actually promoted from the cadre of Fitter to Driller/Foreman.

16. Assuming for a moment that the respondent had committed a mistake in granting of the two higher pay scales, yet they realized the same at a very belated stage. I may clarify that I do not find any mistake in the grant of the two higher pay scales. I am basing my reasonings on the premise that even if mistake was committed at the relevant point of time, it is too late in the day for the respondents to rectify the same.

17. The facts of this case are squarely covered by the ratio of the decision of the Supreme Court in the case of State of Punjab & Others etc.,(supra). The issue which fell before the Supreme Court for its consideration was, whether any benefit extended to an employee on a mistaken belief at the hands of the employer could be withdrawn after a long lapse of time.

18. I may quote the observations made by the Court as contained in paragraphs4 to 18 as under:

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"4. Merely on account of the fact, that the release of these monetary benefits was based on a mistaken belief at the hands of the employer, and further, because the employees had no role in the determination of the employer, could it be legally feasible, for the private respondents to assert, that they should be exempted from refunding the excess amount received by them? Insofar as the above issue is concerned, it is necessary to keep in mind, that the following reference was made by a Division Bench of two Judges of this Court, for consideration by a larger Bench: (Rakesh Kumar case, SCC p.893, para 2)

"In view of an apparent difference of views expressed on the one hand in Shyam Babu Verma and Ors. vs. Union of India & Ors. (1994) 2 SCC 521 and Sahib Ram Verma vs. State of Haryana (1995) Supp. 1 SCC 18; and on the other hand in Chandi Prasad Uniyal and Ors. vs. State of Uttarakhand & Ors. (2012) 8 SCC 417, we are of the view that the remaining special leave petitions should be placed before a Bench of Three Judges. The Registry is accordingly directed to place the file of the remaining special leave petitions before the Hon'ble the Chief Justice of India for taking instructions for the constitution of a Bench of three Judges, to adjudicate upon the present controversy." (emphasis is supplied)

5. The aforesaid reference was answered by a Division Bench of three Judges on 8.7.2014. While disposing of the reference, the three Judge Division Bench, recorded the following observations in paragraph 6:

"7. In our considered view, the observations made by the Court not to recover the excess amount paid to the appellant therein were in exercise of its extraordinary powers under Article 142 of the Constitution of India which vest the power in this Court to pass equitable orders in the ends of justice."

(emphasis is supplied) Having recorded the above observations, the reference was answered as under:

"12. Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgments and the latter judgment. 13. In that view of the above, we are of the considered opinion that reference was unnecessary. Therefore,

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without answering the reference, we send back the matters to the Division Bench for its appropriate disposal."

(emphasis is supplied)

6. In view of the conclusions extracted herein above, it will be our endeavour, to lay down the parameters of fact situations, wherein employees, who are beneficiaries of wrongful monetary gains at the hands of the employer, may not be compelled to refund the same. In our considered view, the instant benefit cannot extend to an employee merely on account of the fact, that he was not an accessory to the mistake committed by the employer; or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee.

7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court.

8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.

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9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality, can be found in Articles 14 to 18, contained in Part III of the Constitution of India, dealing with "Fundamental Rights". These Articles of the Constitution, besides assuring equality before the law and equal protection of the laws; also disallow, discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracized section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the "Directive Principles of State Policy". These Articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice social, economic and political, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections.

10. In view of the aforestated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.

11. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters.

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12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475, wherein this Court recorded the following observation in paragraph 58:

"58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, Union of India v. M. Bhaskar, (1996) 4 SCC 416, V. Ganga Ram v. Director, (1997) 6 SCC 139, Col. B.J. Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709, Purshottam Lal Das v. State of Bihar, (2006) 11 SCC 492, Punjab National Bank v. Manjeet Singh, (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur, (2000) 10 SCC 99."

(emphasis is supplied)

13. First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on

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the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee.

14. In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India (1994) 2 SCC 521, wherein this Court observed as under:

"11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs.330- 560 but as they have received the scale of Rs 330560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them.

Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same." (emphasis is supplied) It is apparent, that in Shyam Babu Verma's case (supra), the higher payscale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the payscale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India.

15. Examining a similar proposition, this Court in Col. B.J. Akkara v. Government of India, (2006) 11 SCC 709, observed as under:

"28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it.

As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the

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employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery." (emphasis is supplied) A perusal of the aforesaid observations made by this Court in Col. B.J. Akkara's case (supra) reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e., ClassIII and ClassIV sometimes denoted as Group 'C' and Group 'D') of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India.

16. This Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows:

"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid

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any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."

(emphasis is supplied) Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation.

17. Last of all, reference may be made to the decision in Sahib Ram Verma v. Union of India, (1995) Supp. 1 SCC 18, wherein it was concluded as under:

"4. Mr. Prem Malhotra, learned counsel for the appellant, contended that the previous scale of Rs 220550 to which the appellant was entitled became Rs.7001600 since the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any force in this contention. It is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges to Rs 7001600 but they insisted upon the minimum educational qualification of first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib.

Science or a Diploma in Library Science. The relaxation given

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was only as regards obtaining first or second class in the prescribed educational qualification but not relaxation in the educational qualification itself.

5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." (emphasis is supplied) It would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs.7001600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed minimum educational qualification (first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science, the degree of M.Lib. Science being a preferential qualification). For those Librarians appointed prior to 3.12.1972, the educational qualifications were relaxed. In Sahib Ram Verma's case (supra), a mistake was committed by wrongly extending to the appellants the revised pay scale, by relaxing the prescribed educational qualifications, even though the concerned appellants were ineligible for the same. The concerned appellants were held not eligible for the higher scale, by applying the principle of "equal pay for equal work". This Court, in the above circumstances, did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post.

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

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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 ClassIII and ClassIV 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"

19. In the case of 'Bharat Sanchar Nigam Ltd. Anr. Vs. BPL Mobile Cellular Ltd. & Ors.', reported in 2008 AIR SCW 6743, the Supreme Court made the following observations in Para32 as under:

"32. Indisputably, mistakes can be rectified. Mistake may occur in entering into a contract. In the latter case, the mistake must be made known. If by reason of a certification of mistake, except in some exceptional cases, as for example, where it is apparent on the face of the record, mistake cannot be rectified unilaterally. The parties who that would suffer civil consequences by reason of such act of rectification of mistake must be given due notice. Principles of natural justice are required to be complied with. The fact that there was no mistake apparent on the face of the records is borne out by the fact that even the officers wanted clarification from higher officers. The mistake, if any, was sought to be rectified after a long period; at least after a period of three years. When a mistake is not rectified for a long period, the same, in law, may not be treated to be one."

20. Having regard to the peculiar facts of the case, I am of the view that if I do not interfere and quash the impugned order, then it will virtually amount to killing the petitioners at the fag end of their lives. A Government employee after his superannuation survives only on pension and his other savings; if any. He plans his entire life according

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to the remuneration he receives till he attains superannuation. He would incur expenses according to his income. His savings would also be according to his income i.e. the salary which he draws. When he is drawing a particular salary with certain emoluments, he knows his status in life. Ultimately, one fine day when he is told that all the benefits received or drawn by him are to be withdrawn then he will be left with no other alternative but either to commit suicide or live in poverty. In such circumstances, I hold that the action of the respondents in withdrawing the benefits at a belated stage with recovery in the form of cut in pension, as absolutely unreasonable and arbitrary."

7. Having regard to the observations of the learned Coordinate Bench and for the law laid down by the learned Coordinate Bench, in the considered opinion of this Court, the present petition requires consideration. The impugned order dated 5.3.2012 and order dated 28.6.2012 are hereby quashed and set aside. The respondents shall within a period of 12 weeks from today calculate the arrears of pension as would be available to the petitioner on account of setting aside of the orders dated 5.3.2012 and 28.6.2012 and shall pay such arrears to the petitioner within the said period with interest at the rate of 6% per annum thereupon.

8. The present petition is disposed of as allowed. Rule is made absolute accordingly. Direct service is permitted.

Sd/-

(NIKHIL S. KARIEL,J) V.V.P. PODUVAL