Gujarat High Court
Manager And Managing Trustee vs Ushaben Gamanbhai Gamit on 20 June, 2024
Author: A. S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/2/2023 ORDER DATED: 20/06/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO.2 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 7847 of 2008
With
CIVIL APPLICATION (FOR STAY) NO.1 of 2022
In R/LETTERS PATENT APPEAL NO.2 of 2023
With
R/LETTERS PATENT APPEAL NO.37 of 2023
In
R/SPECIAL CIVIL APPLICATION NO.7751 of 2008
With
CIVIL APPLICATION (FOR STAY) NO.1 of 2022
In R/LETTERS PATENT APPEAL NO.37 of 2023
In
R/SPECIAL CIVIL APPLICATION NO.7751 of 2008
==========================================================
MANAGER AND MANAGING TRUSTEE
Versus
USHABEN GAMANBHAI GAMIT & ORS.
==========================================================
Appearance:
MAYANK K TRIVEDI(7906) for the Appellant(s) No. 1
MR KK TRIVEDI(934) for the Appellant(s) No. 1
MR SAHIL TRIVEDI AGP for the Respondent(s) No. 2
MR BIPIN P JASANI(360) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 3,4
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 20/06/2024
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. Present appeals filed under Clause 15 of Letters Patent,
1865 is directed against the judgment and order dated
23.06.2022 passed by the learned Single Judge.
NEUTRAL CITATION
C/LPA/2/2023 ORDER DATED: 20/06/2024
undefined
2. The issue pertains to the recovery of pay-scale of the
respondent - employees of the appellant - Trust.
3. After hearing THE learned advocate for the respective
parties and by placing reliance on the judgment of the Apex
Court in the case of State of Punjab and Ors. v. Rafiq Masih
(White Washer) & Ors. (2015) 4 S.C.C. 334, the learned Single
Judge has finally directed as under:
"20. Having heard learned advocates appearing for the respective
parties and having gone through the material on record, it is not
in dispute that respondent No.2 - Commissioner, Tribal
Development and his officers have granted sanction dated
07.04.2003 to respondent No.4 for recruitment of the Assistant
Teacher cum Warden in the Ashramshala run by it and pursuant
to such no objection letter, the advertisement was issued on
15.04.2003 and the petitioner was appointed on the said post
pursuant to interview held on 02.07.2004 by appointment letter
dated 28.07.2004 after obtaining the sanction for the said post
from the office of Commissioner, Tribal Development on
22.07.2004.
21. In the inquiry, which was conducted in the year 2008 by
respondent No.1 - Commissioner, Tribal Development, it is found
that 'No Objection Certificate' issued by the office of the
Commissioner, Tribal Development was not proper and was
contrary to the Government Resolution dated 02.07.1999, which
prescribed that only the Shikshan Sahayak ought to have been
appointed instead of full time Assistant Teacher cum Warden, and
as such, the Deputy Director, Tribal Development was held
responsible.
22. It is true that the amount of salary paid to the petitioner was
from 2004 onwards for five years was contrary to the
Government Resolution dated 02.07.1999, however, on perusal of
the facts and prima-facie evidence and also the documents
produced on record, I am unable to find any fault on the part of
the petitioner for getting the appointment as an Assistant Teacher
cum Warden. The petitioner has been appointed by respondent
No.1 by granting firstly 'No Objection Certificate' to respondent
No.4 and thereafter, participating in the recruitment process as
NEUTRAL CITATION
C/LPA/2/2023 ORDER DATED: 20/06/2024
undefined
per the conditions prescribed in the said 'No Objection
Certificate' as well as thereafter, by letter dated 22.07.2004, the
sanction for appointment of the post was also granted by the
office of Commissioner, Tribal Development and therefore, in
such circumstances, the petitioner cannot be held responsible for
the amount of regular payment made to him by respondent No.4
from the grant received from the State Government.
24. The impugned order dated 22.04.2008 directing the petitioner
to pay the difference of salary i.e. regular pay scale and fixed
pay as per the Government Resolution dated 02.07.1999 is,
therefore, not tenable. However, it would be open for respondent
No. 1 to recover the said amount in accordance with law either
from the concerned officers of the Department or from
respondent No.4 after giving an opportunity in consonance with
the principles of natural justice and after following due process
for such recovery. In this context, inquiry report and the findings
of the inquiry report dated 22.04.2008 shall be considered as
final and no further inquiry in that regard is required to be made
only for the purpose of recovery of the amount which is paid in
excess by way of grant to respondent No. 4 may be initiated in
accordance with law."
4. It appears that the issue with regard to the refund of
excess amount which is being paid to the Assistant Teacher-
cum-Warden cropped up and it is the case of the appellant as
well as the State authority that there was some excess payment
made to such teachers while they were conferred the pay-
scales. Learned Single Judge, after analyzing the entire facts
as well as the rival contentions and the documents produced
on record, has finally issued directions as noted hereinabove.
5. We do not find any infirmity and illegality in such
directions. The appointment of the respondent-teacher was
done after due process of law, and after obtaining permission
from the Commissioner. There is no fault on the part of the
NEUTRAL CITATION
C/LPA/2/2023 ORDER DATED: 20/06/2024
undefined
respondent-teacher. However, looking to the nature of
allegations and counter allegations made by the appellant -
Trust and the Commissioner i.e. respondent No.2, throwing
burden of each other; the direction issued by the learned
Single Judge is clarified to the extent that, it would be
apposite that necessary inquiry / proceedings shall be
undertaken by respondent No.2 i.e. Secretary and accordingly,
it will be open for the State Government to recover the
amount which is paid in excess to the respondent-teacher due
to the procedural lapse, after holding necessary inquiry.
6. With this clarification, the present Letters Patent Appeals
are disposed of.
7. Consequentially, the Civil Applications also stand disposed
of.
(A. S. SUPEHIA, J)
(MAUNA M. BHATT,J)
NAIR SMITA V./20
