Gujarat High Court
Pwd Employees Union vs State Of Gujarat on 8 February, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18168 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 491 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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PWD EMPLOYEES UNION & 3 other(s)
Versus
STATE OF GUJARAT & 6 other(s)
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Appearance:
MR SHALIN MEHTA SENIOR ADVOCATE WITH NINAD SHAH WITH
ADITI S RAOL(8128) for the Petitioner(s) No. 1
MS VIDHI J BHATT(6155) for the Petitioner(s) No. 2,3,4
MS NIRALI SANDA AGP for the Respondent(s) No. 1
MR. ALKESH N SHAH(3749) for the Respondent(s) No. 4
RULE NOT RECD BACK for the Respondent(s) No. 7
RULE SERVED for the Respondent(s) No. 2,3,5,6
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Page 1 of 16
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Date : 08/02/2024
ORAL JUDGMENT
1. Both these petitions are filed by the petitioners under
Articles 14, 16, 21 and 226 of the Constitution of India for the
following reliefs:-
"(A) Your Lordships may be pleased to issue a writ of
mandamus directing or commanding the respondent
authorities to credit the arrears of pay from 1.1.2006 to
31.03.2009 into the General Provident Fund Accounts of
the petitioners no.2 to 4 and pay in cash the arrears of pay
from 1.4.2009 till the date when the pay fixation is done as
per Government Resolution dated 24.08.2009 and pay
fixation order dated 9.11.2009 with interest at the rate of
12% per annum from the date the arrears of pay became
due;
(B) Your Lordships may be pleased to declare the
inaction on the part of the respondent authorities in paying
the arrears of pay to the petitioners no.2 to 4 as per the
Government Resolution dated 24.8.2009 and pay fixation
order dated 9.11.2009 as illegal, arbitrary and violative of
the petitioners' fundamental rights under Articles 14, 16
and 21 of the Constitution.
(C) Your Lordships may be pleased to issue a writ of
mandamus directing or commanding the respondent
authorities not to re-fix the pay of the petitioners no.2 to 4
in the lower pay scale or pass any order recovering the
alleged excess amount paid to them without following due
process of law.
(CC) Your Lordships may be pleased to issue a writ of
certiorari or any other writ, order or direction declaring the
impugned Office Orders dated 19.04.2010 passed by the
respondent no.7 revising the pay of the petitioners no.2 to
4 in the pay scale of Rs.750-940 from 950-1400 and in the
pay scale of Rs.2550-3200 from 3050-4590 as contrary to
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the principles of natural justice, arbitrary, unreasonable
and thus violative of Articles 14, 16 and 21 of the
Constitution and quashing and setting aside the same;
(CD) Your Lordships may be pleased to issue a writ of
mandamus or any other writ, order or direction
commanding the respondent authorities to restore the
earlier position by re-fixing the pay of the petitioners no.2
to 4 in the pay scale of Rs.950-1400 and corresponding
higher pay scales in the Fifth and Sixth Central Pay
Commissions with all other consequential benefits.
(D) Pending admission and final hearing of this petition,
Your Lordships may be pleased to direct the respondent
authorities herein not to re-fix the pay of the petitioners
no.2 to 4 in the lower pay scale or pass any order
recovering the alleged excess amount paid to them
without following due process of law.
(E) Pending admission and final hearing of this petition,
Your Lordships may be pleased to direct the respondent
authorities herein to credit the arrears of pay with effect
from 1.1.2006 to 31.3.2009 into the General Provident
Fund Accounts of the petitioners no.2 to 4 and pay in cash
the arrears of pay from 1.4.2009 till the date of fixation of
pay provisionally."
2. The facts are that the petitioners no.2 to 4 were appointed
as daily wagers / helpers in respondent no.5 from 05.10.1979 to
21.11.1979 and by virtue of Government Resolution dated
17.10.1988, the petitioners have been permanent employees
after about ten years. Thereafter, from time to time the
petitioners have been considered for the higher pay scale and
they have been granted and extended the benefits under the
Fifth and Sixth Pay Commissions by virtue of the Government
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Resolution dated 24.08.2009 and vide order dated 09.11.2009,
the petitioners no.2 to 4 granted pay band of Rs.5200-20200
with grade pay of Rs.1900. Though the petitioners are entitled
for the benefits as per the Government Resolution dated
24.08.2009, the petitioners no.2 to 4 are entitled for the arrears
of pay with effect from 01.01.2006 till their pay fixation, but after
almost twelve years instead of extending the benefits to the
petitioners, an order of recovery was passed by the respondent -
authorities observing that initial pay fixation of petitioners no.2
to 4 was incorrect and, therefore, wages which they have drawn
by this order is on higher side. The petitioners worked for more
than ten years and their services came to be confirmed and they
are entitled to get the higher pay scale. On completion of 15
years of continuous service, as per the Government Resolution
dated 17.10.1988 more particularly clause (3), the petitioners
have been considered as regular employees and their pay was
fixed in the pay scale of Rs.950 to Rs.1400. That as the
petitioners have completed 15 years of services, they are
entitled to get the benefits as per the order dated 27.04.1998.
The petitioners have preferred the present petitions challenging
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the action on the part of the respondent - authority for non-
consideration of pay fixation and also for recovery of excess
amount.
3. The controversy involved in the petitions is that the initial
appointment of the petitioners along with others is daily wage
helpers and they worked from 05.10.1979 to 16.10.1988 and,
therefore, after completion of ten years, they were considered as
permanent employees instead of daily-wage helpers and to that
effect an order dated 16.03.1990 came to be passed. On
confirmation, the petitioners drew the wages as per the fixation
in the pay scale of Rs.750 - Rs.940, but after completion of 15
years, their pay fixation is based on the Government Resolution
dated 17.10.1988 and the Government extended the benefits in
favour of the petitioners.
4. Heard Mr.Shalin Mehta, learned senior counsel for the
petitioners, Ms.Nirali Sanda, learned Assistant Government
Pleader for respondent - State Authorities and Mr.Alkesh Shah,
learned counsel for respective respondents at length.
5. Mr.Mehta, learned senior counsel for the petitioners, while
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referring to page no.24 of the petition, has submitted that
petitioners No.2 to 4 were appointed as daily-wage helpers in the
office of respondent No.5 and their salary is fixed in the pay
scale of Rs.750-940 and, thereafter, after completion of fifteen
years, their service came to be confirmed and their salary is
fixed in the pay scale of Rs.950-1400. He has submitted that on
the basis of the said aspects, the petitioners have been granted
and extended the benefits under the Fifth and Sixth Pay
Commissions and their pay verification is done by the
respondent. According to Mr.Mehta, learned senior counsel, as
per the Government Resolution dated 24.08.2009 and office
order dated 09.11.2009, petitioners No.2 to 4 are entitled to get
arrears of pay for a period from 01.01.2006 to 31.03.2009,
however, the same was not done. Mr.Mehta, learned senior
counsel has submitted that the respondent authorities have
orally informed the petitioners no.2 to 4 that the pay was
wrongly fixed and, therefore, recovery order came to be passed
for the excess amount. He has submitted that the respondent
authorities on flimsy grounds cannot withhold the arrears of pay
which payable to petitioners No.2 to 4 and, thus, the action on
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the part of the respondent authorities is illegal, bad in law and
violative of Articles 14, 16 and 21 of the Constitution of India. He
has submitted that the impugned order dated 19.04.2010
revising the pay of the petitioners in the pay scale of Rs.750 -
Rs.940 from Rs.950 - Rs.1400 and in the pay scale of Rs.2550 -
Rs.3200 from Rs.3050 to Rs.4590 were passed without giving
any notice and/or affording an opportunity of hearing to the
petitioners No.2 to 4. Mr.Mehta, learned senior counsel has
submitted that the other daily wagers have been given the
arrears of pay as per Sixth Pay Commission vide Government
Resolution dated 24.08.2009, which amounts to discriminatory
treatment between the petitioners and other similarly situated
employees working in other respective divisions. He has
submitted that considering the aforesaid facts, the present
petition deserves to be allowed and the impugned orders require
to be quash and set aside. In support of his submissions,
Mr.Mehta, learned senior counsel has relied upon the decision of
the Hon'ble Supreme Court in the case of State of Punjab and
otehrs Vs. Rafiq Masih (White Washer) and others reported
in (2015) 4 SCC 334 wherein the Hon'ble Supreme Court has
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considered that the amount paid in excess without fault of the
recipient cannot be recovered. He has submitted that the
recovery is effected after twelve years which is not tenable in the
eyes of law. The relevant paragraph of the said decision reads as
under:-
"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."
6. Mr.Shah, learned counsel appearing for respondents has
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opposed the present petition and submitted that the petitioners
No.2 to 4 were appointed as temporary helpers. Mr.Shah, learned
counsel has relied upon the affidavit-in-reply filed by one Mrs.
Radhamani, Chief Manager (HR). The relevant paragraphs of the
said reply reads as under:-
"With regard to para 7 of the petition I say that so far as
the details about various orders passed in respect of
petitioners are concerned, those being matter of record the
same is not much disputed. However, I say that the
Petitioner state that their pay scale was fixed on
completion of 15 years of continuous service. In this
regard, I say that by way of aforesaid orders, the
petitioners were put in the pay scale of Rs.950-1400. I say
that the aforesaid pay fixation was erroneously done at
that point of time none of petitioners have passed S.S.C.
examination. In fact as per subsequent Government
Resolution dated 17/05/1989 it was decided that if a
person possesses a valid certificate of second class
wireman from the licensing board of industries, mines of
electricity department or any equivalent certificate to that,
they can be said to be qualified labors / helpers and they
will be entitled to the pay scale of Rs.950-1400 and all
other persons who do not possesses such qualification
should be put into the pay scale of Rs.750-940. It is
pertinent to note that none of the petitioners possesses
such certificate as stated in the Government Resolution
but inspite of that by fixing their pay scale erroneously,
they were put under the pay scale of Rs.950-1400 instead
of Rs.750-940.
12. With regard to para 8 to 10 of the petition I say that
whatever is stated in para 8 to 10 is a matter of record and
hence not much disputed, however, I say that the error
committed while fixing the petitioners pay scale and
placing them in the pay scale of Rs.950 - 1400 instead of
R.750 - 940 continued and therefore the petitioners
continued to get erroneous higher pay scale every time
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their pay scale got revised scale to scale and that is how
the petitioners continued to get higher pay scale to which
they are not entitled too. I say that the aforesaid error was
noticed only when a sub division office of Vadodara
submitted the service book of the petitioners for pay
fixation and at that point of time the said fact was noticed.
Therefore, accordingly in the year 2010 vide office order
no. 62 of 2010, 64 of 2010 and 65 of 2010 the petitioners
were placed under revised pay scale.
13. With regard to para 11 and 12 of the petition I say
that whatever is stated in para 11 and 12 is denied and
disputed in toto and petitioners are put to strict proof in
support of what is stated in para 11 and 12. I say that the
petitioners have claimed that though they have been
granted the benefit of 6th pay commission they have not
been paid the amount of arrears in five equal installments
to be credited into their G.P.F. account with a lock in period
of 5 years. In this regard, I may say that right from the first
order the petitioners have been paid in excess then the
pay scale they were entitled to. The difference of that
amount is a huge amount to be calculated. The petitioners
are entitled to the arrears by considering their pay scale of
Rs.750 - 940 and its corresponding pay scale and not as
per 950 - 1500 pay scale, therefore, if the arrears is
calculated by considering the petitioner pay scale of
Rs.750 - 940 and its corresponding pay scale, that amount
the petitioners are entitled too. But as against that the
petitioners were given higher pay scale for many years due
to their erroneous pay fixation and therefore the amount of
the arrears that the petitioners are entitled too is required
to be adjusted against the excess payments made to the
petitioners and after adjusting the aforesaid amount which
ever amount still remained to have been paid to the
petitioners in excess of their entitlement the same is
required to be recovered from the petitioners. It is under
these circumstances that the petitioners no.2 & 3 re nto
paid the amount of arrears till now. Had the amount of
arrears to which the petitioners are claiming their
entitlement been paid to the petitioners, it would have
resulted into perpetuity of illegality / mistake already
committed and therefore the amount of arrears is not paid
to the petitioners.
With regard to para 13 of the petition I say that whatever is
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stated in para 13 is denied and disputed in toto and
petitioners are put to strict proof in support of what is
stated in para 13. I say that the petitioners have relied
upon the pay verification orders dated 30/08/2013,
05/08/2013 and 07/08/2013, in this respect I say that the
aforesaid pay verification was done vide order dated
09/11/2009. Thereafter, the same was sent for a cross
examining it to the Local Fund. The Manager (Salaries)
raised an objection in respect of as many as 7 employees
including present petitioners and send it to the Dy.
Executive Engineer N.P.C. Mechanical Division No.1 vide its
letter dated 24/11/2009. Accordingly, the service books of
each of the petitioners were verified and on verifying the
same a note was put in the service book that the pay scale
which was sanctioned earlier of Rs.3050-4590 is required
to be recovered.
With regard to para 14 of the petition I say that whatever is
stated in para 14 is denied and disputed in toto and
petitioners are put to strict proof in support of what is
stated in para 14 of the petition. I sy that some of the
persons who were similarly situated and were given higher
pay scale erroneously, in respect of those persons also
recovery orders are issued and recoveries have been
initiated against them. Therefore, it is not correct that only
with respect to present petitioners the respondent
authorities are not releasing their arrears of pay.
With regard to para 15 of the petition I say that as stated
herein above, since the petitioners were granted higher
pay scale wrongly the amount has sought to be recovered.
In fact, in this regard detail correspondence have taken
place right from 2010 to 2015 dated 29.05.2015 whereby
the excess amount paid to the petitioners were directed to
be recovered.
With regard to ground9a) of the petition, I say that as
stated in forgoing paragraphs elaborately the petitioners
pay fixation was done erroneously and they were given
higher pay scale erroneously to which they were not
entitled to. That error continued till the order was passed
on 19/04/2010 vide order No. 62 of 2010, 64 of 2010 and
65 of 2010 and therefore the amount of arrears was not
paid to the petitioners with a view to adjust the same
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against the amount excess paid to the petitioners.
With regard to ground (b) of the petition I say that
whatever is stated in ground (b) is denied and disputed in
toto. I further say that the petitioners have concealed the
fact that order No. 62 of 2010, 64 of 2010 and 65 of 2010
dated 19/04/2010 has been passed whereby the higher
pay scale which was erroneously paid to the petitioners
have been withdrawn and the petitioners are placed into a
pay scale of Rs.2550 - 3200 to which they were entitled to
and therefore with a view to adjust the amount paid in
excess the amount of arrears has not been paid to the
petitioners. Moreover, I say that as stated in foregoing
paragraphs the petitioners were served with order no. 48
of 2015 dated 29/05/2015 and order no.64 of 2015 dated
02/07/2015 whereby the recovery was ordered. The
petitioners have challenged the aforesaid orders by
preferring Civil Application No.12193 of 2015 which
pending before this Hon'ble Court.
With regard to ground (c) of the petition I say that
whatever is stated in ground (c) is denied and disputed in
toto. I further say that the petitioners have made a baled
stated that other similarly situated persons have been
given the arrears of pay as per 6 th pay commission but no
details of the same has been furnished. In absence of any
concrete details it would not be possible for answering
respondents to comment upon the same but it is
respectfully submitted that even the Hon'ble Supreme
court has also not approved he practice of pleading a case
on the basis of reverse discrimination. It is respectfully
submitted that the respondents have taken sufficient care
to see that any person may not get any pay scale
erroneously. But inspite of that if because of some
bonafide human error some persons have been given
certain benefits wrongly it would not entitled the
petitioners to claim the same."
6.1 Mr.Shah, learned counsel has submitted that considering
the aforesaid aspects, the present petition being meritless
deserves to be dismissed.
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7. Ms.Sanda, learned Assistant Government Pleader has
objected the petitions and submitted that the respondent -
authorities have not committed any error in passing the
impugned orders and the Court may pass appropriate orders.
8. The controversy involved in the present petition is to the
effect that the benefits which is extended to the present
petitioners as per the Government Resolution dated 17.10.1988
on the pay fixation is incorrect or not and whether the recovery
initiated by the respondents is valid or not.
9. Having considered the submissions made on behalf of both
the sides and considering the aforesaid decision as well as
materials placed on record and the impugned order of the
appropriate Government, it appears that the petitioners are
appointed as daily wager / helpers who have completed ten
years of service prior to the date of resolution dated 17.10.1988
wherein three categories of employees were mentioned i.e. (i)
unskilled, (ii) semi-skilled and (iii) skilled. That after completion
of fifteen years, the petitioners are entitled to get higher pay
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scale which is granted to them as per clause (3) of the
Government Resolution dated 17.10.1988 and since on
completion of fifteen years, they have received higher pay scale.
Therefore, the submissions made on behalf of the respondent is
not tenable and the initial appointment order of the petitioners
itself is clear that on completion of ten years their temporary
services came to be confirmed for which they have drawn pay
scale of Rs.750-940 but after completion of fifteen years, they
are considered as permanent employees and they have
extended benefits and their pay is fixed in the pay scale of
Rs.950-1400 and, thereafter, they have extended the benefits
under the Fifth and Sixth Pay Commission. Even till date, the
petitioners have not considered that the salary which is drawn by
them is in excess to the earlier order of appointment and,
thereafter, suddenly after almost twelve years, the respondents
stated that the amount of salary which is paid to the petitioners
is on higher side since their original appointment is in the
category of unskilled and they are not fallen under the
Government Resolution dated 17.10.1988 and the benefits
drawn by the petitioners is inadvertently paid, which is on higher
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side and in excess and, therefore, the respondents are entitled to
recover the amount from the petitioners, which fact is absolutely
illegal, arbitrary and against the settled principles of law.
10. Considering the facts and circumstances of the case, it
reveals that the petitioners appointed as daily wagers / helpers
and after ten years and by virtue of Government Resolution
dated 17.10.1988, they have been permanent employees and
vide order dated 09.11.2009, the pay of the petitioners was fixed
in the pay scale of Rs.5200-20200 with grade pay of Rs.1900.
Thereafter, as per Government Resolution dated 24.08.2009 and
office order dated 09.11.2009, the petitioners No.2 to 4 are
entitled to get arrears and despite of that fact, the respondents
have not paid the said arrears to the petitioners, but the
respondents have issued a letter to the effect that the payment
made to the petitioners is excess and the same is required to be
recovered from them. This action on the part of the respondents
is unjust, illegal and arbitrary and against the settled principles
of law. In view of the above, I am of the opinion that the present
petitions deserve to be allowed.
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11. In the result, the petitions are allowed. The order dated
19.04.2010 is quashed and set aside. The respondents are
directed to fix the salary on the basis of the pay scale of Rs.950 -
1400 from the date of completion of fifteen years of service and
the petitioners are entitled to get the arrears as per the
Government Resolution dated 24.08.2009 and 09.11.2009. The
said amount shall be paid to the petitioners preferably within a
period of four months from the date of receipt of the copy of this
order and such entry for pay fixation shall be effected in their
service book. Rule is made absolute to the aforesaid extend.
There shall be no order as to costs.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
