Gujarat High Court
M L Patel vs State Of Gujarat on 5 August, 2025
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Reserved On : 15/07/2025
Pronounced On : 05/08/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9015 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 3382 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 9149 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 9379 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 11624 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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M L PATEL & ANR.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
MR VAIBHAV A VYAS AND MR MAULIK NANAVATI for the Petitioner(s) No.
1.1
MS SURBHI BHATI, AGP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
1. As common questions of facts and law are involved
in these petitions, with the consent of learned advocates for
the parties, all these petitions are disposed of by this
common judgment.
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2. For the sake of convenience, the facts of Special
Civil Application No.9015 of 2013 are narrated.
3. The prayer prayed for in these petitions is that
the impugned order dated 18.5.2013 vide which the first
higher grade scale of Rs.4,500-7,000 is granted to the
petitioner by canceling the earlier order vide which the first
higher pay scale of Rs.5000-8000 was granted to the
petitioner with effect from 3.7.1996 and also vide which the
second higher pay scale of Rs.5000-8000 is granted to the
petitioner in place of second higher pay scale of Rs.6500-
10500 and direct the respondents authorities to grant second
higher pay scale of Rs.6500-10500 to the petitioner with
effect from 3.7.2011 with all consequential benefits.
3.1 At the time of issuance of notice, ad-interim relief
was granted staying the implementation of the impugned
order, which is extended from time to time and is in
operation till date.
4. The facts leading to filing of these petitions are
such the petitioner joined the services of the respondents
authorities as Assistant Instructor on 11.7.1980 and in due
course promoted to the post of Instructor on 3.7.1987; that
th
prior to implementation of the 5 pay commission and coming
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into operation of the Gujarat Civil Services (Revision of Pay)
Rules, 1998, (Rules of 1998 for short) the posts under the
administrative control of the respondent no.3 were that of
Assistant Instructor (Pay Scale Rs.1200-2040), Instructor (Pay
Scale Rs.1350-2200), Rector cum Superintendent (Pay Scale
Rs.1400-2300) and Technical Assistant (Pay Scale Rs.1640-
2900); thereafter the Rules of 1998 came to be implemented
with retrospective effect from 1.1.1996 and the posts namely
Instructor and Rector cum Superintendent referred to above
were revised and merged together into an identical pay scale
of Rs.4500-7000 and the pay scale of next higher post of
Technical Assistant was revised to Rs.5500-9000; the posts as
per the new set up were Assistant Instructor (4000-6000),
Rector cum Superintendent (4500-7000), Technical Assistant
(5500-9000). The person working on the post of Rector cum
Superintendent would be entitled to the next higher pay scale
of the post of Technical Assistant i.e. Rs.5500-9000 upon
completion of 9 years of service.
4.1 It is stated that the petitioner, vide order dated
16.6.1997, was granted the first higher grade scale of
Rs.1400-2300 (revised Rs.4500-7000) against the pay scale of
Rs.1350-2200, thereafter the petitioner was granted the first
higher grade pay scale of Rs.5000-8000 (pre-revised Rs.1640-
2900) as per the schedule vide order dated 21.2.1998,
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thereafter, the said order was revoked vide order dated
27.11.2000. The petitioner was made to understand that since
the new set up is not approved by the State Government,
the benefit of higher grade scale can be granted only after
the new set up is approved by the government; the new set
up was approved by the government with effect from 1.1.1996
vide Government Resolution dated 3.10.2009.
4.2 The petitioner pursuant to the said resolution,
made a representation to the respondent authority on
29.10.2009 requesting the respondent authority to grant first
higher grade scale of Rs.5500-9000 and second higher grade
scale of Rs.6500-10500 to the petitioner from the date of his
entitlement; thereafter, the revised pay scale of Rs.5000-8000
was granted to the petitioner as first higher grade scale vide
revised order dated 7.1.2011 with effect from 3.7.1996 and
the arrears were also paid; that the grievance of the
petitioner is that the petitioner working on the post of Rector
cum Superintendent ought to have been granted the first
higher grade scale of the next promotional post of Technical
Assistant i.e. Rs.5500-9000 instead of Rs.5000-8000 as per the
Schedule.
4.3 Special Civil Application No.3382 of 2013 is filed
by the very petitioner of Special Civil Application No.9015 of
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2013, wherein the action of the respondent authorities of
seeking to withdraw the first higher pay scale of Rs.5000-
8000 already granted to the petitioner was also challenged
and the petitioner had also challenged the action of the
respondent authorities of not granting the second higher pay
scale of Rs.6500-10500 to the petitioner, though he is entitled
for the same on completion of 24 years of service on 3.7.2011
on the post of Rector cum Superintendent. That the
petitioner had preferred Special Civil Application No.85 of
2006 along with other petitioners, challenging the action of
the respondent authorities of not granting the benefit of first
higher grade scale of Rs.5500-9000 to the petitioner; the
same was withdrawn to make representation to the
respondent authorities on 25.1.2006; a detailed representation
dated 16.10.2006 was made to the respondent authorities; as
the same was not decided, the petitioners once again filed
Special Civil Application No.28317 of 2007 and cognate
matters, wherein the respondent authorities were directed to
decide the representation made by the petitioner as early as
possible within a period of two months from the date of
receipt of the order; the respondent authorities passed the
order dated 5.1.2008 observing that the matter pertaining to
the grant of higher grade scale to the petitioners is under
the consideration of the Pay Anomaly Committee and till the
decision is taken by the said Committee, the benefit of
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higher grade scale of Rs.5500-9000 cannot be granted to the
petitioner and that the request of the petitioner for grant of
higher grade scale would be reviewed after the decision is
taken by the Pay Anomaly Committee for increasing the pay
scale of Rector cum Superintendent, vide order dated
5.1.2008; the said decision was challenged by way Special
Civil Application No.9669 of 2009, which came to be disposed
of vide order dated 8.10.2009 directing the Pay Anomaly
Committee to take expeditious decision; again a petition for
the same cause was filed before this Court being Special
Civil Application No.953 of 2013, which was withdrawn with
a liberty to file petition for the same cause of action after
obtaining the requisite documentary evidences.
4.4 Thereafter, the necessary documents were obtained
by the petitioner under the Right to Information Act and had
filed Special Civil Application No.3382 of 2013; thereafter the
petitioner was called vide letter dated 16.3.2013 to remain
personally present on 22.3.2013 for reconsideration of the first
higher pay scale of Rs.5000-8000 granted to the petitioner;
thereafter, considering the submissions, the authorities had
cancelled the order granting the first higher pay scale of
Rs.5000-8000 and in its place first higher pay scale of
Rs.4500-7000 is ordered to be granted to the petitioner with
effect from as the first higher grade pay scale was granted
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to the petitioner and consequential recovery is also sought to
be made; further the authorities granted the second higher
pay scale of Rs.5000-8000 (which was already granted as first
higher pay scale with effect from 3.7.1996) instead of
granting the second higher pay scale of Rs.6500-10500 to the
petitioner with effect from 3.7.2011, vide the impugned order
dated 18.5.2013, which is challenged by way of this petition.
5. Heard learned advocates for the parties.
5.1 Learned advocate for the petitioners, in the above
factual background, submitted that the authorities themselves
are not clear as to which higher pay scale is to be granted
to the petitioner, as earlier on two occasions, the first higher
pay scale of Rs.5000-8000 was granted to the petitioner vide
orders dated 21.2.1998 and 7.1.2011; that the petitioner was
rightly granted first higher pay scale of Rs.5000-8000 with
effect from 3.7.1996, and therefore the action of withdrawing
the same is illegal and arbitrary; that the persons who are
working in other departments of the government and who are
similarly situated to the petitioner are granted the first
higher grade scale of Rs.5500-9000, whereas the petitioner is
granted the first higher grade scale of Rs.4500-7000; therefore
the action of the respondent authorities in not granting the
same and seeking recovery of the amount already paid to the
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petitioner is illegal, arbitrary and against the provisions of
Rules; that the action of the respondent authorities of
granting second higher pay scale of Rs.5000-8000 (which was
already granted as first higher pay scale with effect from
3.7.1996) instead of granting second higher pay scale of the
next promotional post of the cadre of Class-II (Assistant
Director, Industrial Promotional Officer) in the pre-revised pay
scale of Rs.6500-10500 to the petitioner with effect from
3.7.2011 i.e. upon completion of 24 years of service on
3.7.2011 on the post of Rector cum Superintendent.
5.2 Learned advocate for the petitioners has relied on
similarly situated persons of Labour and Employment
Department and submitted that the benefit of first higher
pay scale of Rs.5500-9000 was granted to those employees;
relying on the decision of this court in Special Civil
Application No.24263 of 2006 and allied matters, he
submitted that the petitioners therein who were working a
Lino Operators were granted the first higher pay scale of
post of Compose Overseer of Rs.1400-2300 (as pay scale of
the posts of Lino Operator was made equivalent to that of
Compose Foremen/Lino Mechanic in ROP Rules of 1987), the
said pay scale of Rs.1400-2300 was withdrawn and even the
consequential recovery was ordered was challenged which
came to be allowed by the learned Single Judge vide
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judgment and order dated 19.7.2013, Letters Patent Appeal
No.287 of 2014 against the said order was dismissed by
Hon'ble Division Bench of this Court vide judgment dated
20.3.2014 and the SLP No.27629 of 2014 and allied petitions
came to be dismissed by the Hon'ble Supreme Court. He,
therefore, prayed to allow these petitions.
6. Per contra, learned AGP submitted that Rules of
1998 were introduced with retrospective effect from 1.1.1996;
that in the said rules, the pay scale of instructor cadre i.e.
the post in which the petitioner was earlier working and the
cadre of Rector cum Superintendent which is the next higher
post in cadre of instructor came to be merged and both the
cadres are entitled to the pay scale of rs.4500-7000. The
consolidated cadre was named as Rector cum Superintendent;
that on opinion being sought from the State Government, the
State Government, on the basis of the Government Resolution
dated 16.8.1994, para 3(8) and 2.7.2007, para 2(16)(17) issued
by the Finance Department has opined that since the
changes in the promotional post has been introduced after
1.6.1987, in such cases the higher pay scale is available to
the employee according to the schedule and pay scale of
promotional posts shall be available only from the actual date
of promotion; that on the basis of the said Government
Resolution dated 16.8.1994 and 2.7.2007, in the present case,
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the post of Instructor which is in the pay scale of Rs.4500-
7000 and the next promotional post of Rector cum
Superintendent is also having pay scale of Rs.4500-7000, the
petitioner is entitled to get the said pay scale of Rs.4500-
7000; therefore, the respondent authority has committed an
error while granting pay scale of Rs.5000-8000 to the
petitioner; when the error came to knowledge of the
authorities, the petitioner was called upon to be heard in
person and after that the impugned order is passed. She
submitted that in a similar case being Special Civil
Application No.7371 of 1995 was filed which was dismissed
by this Court and the matter was carried further to the
Hon'ble Division Bench vide Letters Patent Appeal No.931 of
2013 and the same also was dismissed. She has also
submitted that in the case of Chandi Prasad Uniyal and Ors.
V/s State of Uttarakhand and Ors., reported in AIR 2012 SC
2951, the Hon'ble Apex Court has held that any excess
payment made due to wrong/irregular pay fixation is always
subject to recovery and the same can be recovered and also
that no one can enjoy what he/she is not legally entitled and
therefore, the recovery is not bad in law. She, therefore,
prayed to dismiss the petition as the impugned order is not
bad in law.
7. I have heard learned advocates for the parties and
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also perused the material placed on record.
8. At the outset, Special Civil Application No.3382 of
2013 is required to be disposed of as the prayer is merged
into the prayer of Special Civil Application No.9015 of 2013,
as per the say of the petitioner himself as Special Civil
Application No.3382 of 2013, wherein the action of the
respondent authorities of seeking to withdraw the first higher
pay scale of Rs.5000-8000 already granted to the petitioner
was also challenged and the petitioner had also challenged
the action of the respondent authorities of not granting the
second higher pay scale of Rs.6500-10500 to the petitioner,
though he is entitled for the same on completion of 24 years
of service on 3.7.2011 on the post of Rector cum
Superintendent and during the pendency of the said petition,
the impugned order is passed, therefore Special Civil
Application No.9015 of 2013 is filed.
9. From the material placed on record, it transpires
that the petitioners joined the services on 11.7.1980 on the
post of Assistant Instructor; the petitioner was granted
promotion on 3.7.1987 as Instructor; on completion of 9 years
in the promotion cadre on 3.7.1996, the office order came to
be passed on 16.6.1997 for granting first higher pay scale of
Rector as 1400-2300 with effect from 3.7.1996; thereafter on
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the implementation of the fifth pay commission on 1.1.1996,
the pay of the petitioner was revised to Rs.5000-8000 instead
of Rs.4500-7000 as the pay scales of the post of the
Instructor and Rector-cum-Superintendent came to be merged
and when the mistake was realized, the office order was
passed on 27.11.2000 reverting the first higher pay scale to
4500-7000; thereafter on 7.1.2011, again another order came
to be passed revising first higher pay scale to Rs.5000-8000
and again the said wrong order was revised to 18.5.2013 on
the basis of the Government Resolution dates 16.8.1994 and
2.7.2007, more particularly, clause 2.17.
th
10. The pay scales of 4 pay commission as on
th
1.1.1986 and 5 pay commission as on 1.1.1996 for the posts
are as under:
th th
4 pay 1.1.1986 5 pay 1.1.1996
Ass.Instructor 1200-2040 4000-6000
Instructor 1350-2200
Rector cum1400-2300 4500-7000
Superintendent
5000-8000
Tech.Assistance 1640-2900 5500-9000
6500-10500
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11. Clause 2.17 of the Government Resolution dated
2.7.2007 reads as under:
"(૧૭) જે જગ્યાના બઢતીના માળખામાં તા.૧/૬/૮૭ પછી ફેરફાર કરવામાં આવેલો
હોય તેવા કિસ્સામાં (ફેરફાર પહેલા બઢતીની જે જગ્યાનું પગાર ધોરણ મળતું હતું તે
ઉચ્ચત્તર પગાર ધોરણ તરીકે ચાલુ રહેશે . ફેરફાર પછીની બઢતીની જગ્યાનું પગાર ધોરણ
કર્મચારીને જયારે ખરેખર બઢતી મળે ત્યારે જ મળશે."
12. In view of the above, it is clear that the
petitioner was given promotion and placed in the pay scale of
1400-2300 after he completed 9 years of service in the cadre
of Instructor as was prevailing at the relevant time i.e.
th
3.7.1996. However, when the 5 pay commission was
implemented from 1.1.1996 and both cadres of Instructor and
Rector cum Superintendent were merged into one and
common pay scale of 4500-7000 and therefore he ought to
have been placed there, however, it seems that by mistake,
the petitioner was given the pay scale of Rs.5000-8000 and
therefore the same was withdrawn. It is clear that the
petitioner has got the salary in the pay scale of Rs.1350-2200
when he was serving as an Instructor and on completion of
9 years in the service of Instructor, he just got the pay scale
of Rs.1400-2300 which means that he was placed in the first
higher pay scale and on the basis of subsequent development
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of merger of both the cadres, the petitioner got the benefit of
the pay scale of Rs.4500-7000, which means that though he
was not initially appointed on the post of Rector cum
Superintendent, he got the pay scale of the said post. The
second higher pay scale of Rs.5000-8000 was given from the
date of his entitlement. The orders granting wrong higher
pay scales were passed by mistake and therefore they are
revoked on realization of the mistake.
13. Thereafter, after several round of litigations and
communications, on receiving clarification from the State
Government with regard to the same, the impugned order is
passed, which, in the opinion of this Court, after considering
the entire material on record, cannot be said to be unjust or
unfair or illegal, which requires any interference by this
Court in these petitions. The impugned order is passed on
the basis of the Government Resolutions which is a policy
decision and the policy decisions which are best left within
the domain of executive and therefore, a challenge to such
economic policy of the State Government deserves to be dealt
with circumspection and the scope of judicial review would
also therefore be limited.
14. In the case of Chandi Prasad Uniyal (supra), it is
held in paragraph nos.15 and 16 as under:
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"15. We are not convinced that this Court in various
judgments referred to hereinabove has laid down any
proposition of law that only if the State or its officials
establish that there was misrepresentation or fraud on the
part of the recipients of the excess pay, then only the
amount paid could be recovered. On the other hand, most of
the cases referred to hereinbefore turned on the peculiar
facts and circumstances of those cases either because the
recipients had retired on or the verge of retirement or were
occupying lower posts in the administrative hierarchy.
16. We are concerned with the excess payment of public
money which is often described as "tax payers money" which
belongs neither to the officers who have effected over-
payment nor that of the recipients. We fail to see why the
concept of fraud or misrepresentation is being brought in
such situations. Question to be asked is whether excess
money has been paid or not may be due to a bona fide
mistake. Possibly, effecting excess payment of public money
by Government officers may be due to various reasons like
negligence, carelessness, collusion, favoritism etc. because
money in such situation does not belong to the payer or the
payee. Situations may also arise where both the payer an
the payee are at fault, then the mistake is mutual. Payment
are being effected in many situations without any authority
of law and payments have been received by the recipients
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also without any authority of law. Any amount paid/received
without authority of law can always be recovered barring
few exceptions of extreme hardships but not as a matter of
right, in such situations law implies an obligation on the
payee to repay the money, otherwise it would amount to
unjust enrichment."
15. In view of the above discussion, this Court does
not find any unjustness, illegality, or arbitrariness in the
impugned order, which needs any interference by this Court.
16. Accordingly, Special Civil Application No.3382 of
2013 is disposed of. Rest of the petitions are required to be
dismissed. Accordingly, dismissed. Notice/rule stands
discharged. Interim relief, if any, stands vacated.
(SANDEEP N. BHATT,J)
SRILATHA
