Gujarat High Court

Madhusudan Devdasbhai Baraiya vs State Of Gujarat on 1 July, 2025

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                              C/SCA/16397/2018                                        ORDER DATED: 01/07/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/SPECIAL CIVIL APPLICATION NO. 16397 of 2018
                                                          With
                                      R/SPECIAL CIVIL APPLICATION NO. 16504 of 2018
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                                          MADHUSUDAN DEVDASBHAI BARAIYA & ORS.
                                                         Versus
                                                STATE OF GUJARAT & ORS.
                       ==========================================================
                       Appearance:
                       MR GAURAV CHUDASAMA(5660) for the Petitioner(s) No. 1,2,3
                       PETITION/APPEAL WITHDRAWN/DISMISSED for the Petitioner(s) No. 4
                       GIRISH K PATEL(2770) for the Respondent(s) No. 3,4
                       MS SURBHI BHATI, AGP for the Respondent(s) No. 1,2
                       ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                         Date : 01/07/2025

                                                          ORAL ORDER

1. Since the prayers and issues involved in the present

petitions are identical in nature, hence, at the request of

learned advocates for the parties, the matters are taken up

for final consideration and Special Civil Application No.16397

of 2018 is considered as lead matter and all the matters are

heard together.

2.1 The present petition i.e. Special Civil Application

No.16397 of 2018 is filed for seeking the following reliefs:

"A. This petition be admitted and allowed.

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B. Your Lordships be pleased to issue a writ of Mandamus or any other appropriate writ, order to quash and set aside the communication Dt.25-09-2018 passed by the respondent no.4 for rejecting the order of the Fixation of pay with increment and recovering the amount paid of increment under the said fixation of pay to the present petitioners and further be pleased to direct the respondent no. 2 to 4 to continue to give increment as per Rule 11 (1) of the Gujarat Civil Services (Pay) Rules, 2002.

C. Pending hearing and final disposal of this Petition the respondents may be directed to stop further implementation of communication/order Dt.25/09/2018 passed by the respondent no.4.

D. Any other relief that may be deemed just, proper and necessary may also be kindly granted."

2.2 Another present captioned petition i.e. Special Civil

Application No.16504 of 2018 is filed for seeking the following

reliefs:

"A. This petition be admitted and allowed.

B. Your Lordships be pleased to issue a writ of Mandamus or any other appropriate writ, order to

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quash and set aside the communication Dt.10-10-2018 passed by the respondent no.4 for rejecting the order of the Fixation of pay with increment and recovering the amount paid of increment under the said fixation of pay to the present petitioners and further be pleased to direct the respondent no. 2 to 4 to continue to give increment as per Rule 11 (1) of the Gujarat Civil Services (Pay) Rules, 2002.

C. Pending hearing and final disposal of this Petition the respondents may be directed to stop further implementation of communication/order Dt.10-10-2018 passed by the respondent no.4.

D. Any other relief that may be deemed just, proper and necessary may also be kindly granted."

3. Brief facts of the case as per the case of the petitioners

in Special Civil Application No.16397 of 2018 are as under:

3.1 The petitioners herein have been appointed as Teachers

in Primary Section in different districts of the state.

Thereafter the petitioners have cleared their HTAT

examination and therefore, the petitioners become eligible for

the appointment of the Head Teacher. It is the case of the

petitioners in this petition that the petitioners have applied

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for the post the of head teacher and the petitioners have

been appointed as Head Teacher in the Junagadh District

and the respondent no.3 has issued appointment letters to

the present petitioners. It is further the case of the

petitioners in this petition that thereafter the respondent no.3

and 4 has fixed the pay with the increment as per the

Gujarat Civil Services (Pay) Rules, 2002 and accordingly, the

respondent no.3 authority has communicated with all Taluka

Panchayat Offices vide letter dated 11-11-2013 and

accordingly, the respondent nos.3 and 4 has implemented the

communication and passed an order of fixation of pay with

increment.

3.2 It is further the case of the petitioners in this petition

that thereafter the respondent no.4, has decided to cancel the

earlier order for fixation of pay with increment by passing

general order dated 25.09.2018, which was received by the

petitioners on 11.11.2013. It is further the case of the

petitioners in this petition that thereafter the petitioners have

made representation to the the respondent no.3 that as per

the Rule 28 of Gujarat Civil Service (Pay) Rules, 2002, the

respondent no.4 cannot recover the amount from the present

petitioner, but till date the respondent no.3 has not

considered the said representation and started deducting

amount from the salary of the present petitioners. Thereafter,

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the petitioners have filed one representation also to the

respondent no.4 for not to recover the amount of increment

awarded to the present petitioners but till date no reply has

been given by the respondent no.2 herein. Hence, the present

petition has been preferred.

4. Heard Mr. Gaurav Chudasama, learned advocate for the

petitioners, Mr.Girish Patel, learned advocate for the

respondent Nos.3 and 4 and Ms.Surbhi Bhati, learned AGP

for the respondent Nos.1 and 2 - State.

5.1 Mr. Gaurav Chudasama, learned advocate for the

petitioners has submitted that the petitioners are class-III

employees and his pay is fixed by the respondent - authority,

which is thereafter found that such pay is wrongly fixed

under Rule 11(1) of the Gujarat Civil Services (Pay) Rules,

2002 and, therefore, the authority has sent communications

dated 25.4.2018 and ___.10.2018 (Annexure-G issued by

respondent no.4) in Special Civil Application No.16397 of 2018

and communications dated 10.10.2018 in Special Civil

Application No.16504 of 2018, by which the amount of

increment paid under the said fixation of pay to the

petitioner is directed to be recovered.

5.2 By referring to the affidavit-in-reply filed by the

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respondent, he has fairly submitted that he is not pressing

any other relief as prayed in the present petition except the

aspect of recovery, which is not permissible considering Rule

28 of the Gujarat Civil Services (Pay) Rules, 2002. In support

of his submissions, he has relied upon the decision of the

Hon'ble Apex Court in the case of State of Punjab & Ors vs

Rafiq Masih (White Washer) reported in (2015) 4 SSC 334 as

well as the judgment of Co-ordinate Bench of this Court in

the case of Harishchandra Jagannath Brahmbatt vs. State of

Gujarat reported in 2019 (0) AIJEL-HC 241116, such recovery

cannot be permitted where the authorities have committed in

fixation of higher pay scale and, therefore, he pays to allow

this petition to this limited extent against the recovery of the

amount against the present petitioners.

6. Per contra, Mr.Girish K Patel, learned advocate for the respondent Nos.3 and 4 has referred to the averments made

in the affidavit-in-reply and the documents annexed thereo

and also relied upon the Rule 11(1) of the Gujarat Civil

Services (Pay) Rules, 2002, and has submitted that the order

passed by the authority is just and reasonable and the

petitioners, who are already in service and received benefit

for first and second pay scale are liable to the refunded the

amount wrongfully derived by them. He is further submitted

that therefore the authority has rightly directed them to

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refund the amount and communication for recovery of such

amount is just and proper and, therefore, no interference is

required to be called for by this Court.

7. Ms.Surbhi Bhati, learned AGP for the respondent Nos.1

and 2 - State has also relied on the averments made in the

affidavit-in-reply and documents annexed thereto and has

submitted that though the State Authority has limited role in

the present proceeding, he is adopting the argument made on

behalf of the learned advocate for the respondent -

Panchayat and has submitted that no replied as prayed in

the present petition can be granted to the present petitioner.

8.1 I have considered the rival submissions made at the bar

by the respective parties. It transpires that the petitioners

have been appointed as teachers in Primary Section in

different districts of the state and thereafter they have

cleared their HTAT examination and therefore, the petitioners

become eligible for the appointment of the Head Teacher and

subsequently, the petitioners have applied for the post of

head teacher and the petitioners have been appointed as

Head Teacher in the Junagadh District and the respondent

no.3 has issued appointment letters to the present petitioners.

It also transpires that thereafter the respondent nos.3 and 4

has fixed the pay with the increment as per the Gujarat

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Civil Services (Pay) Rules, 2002 and accordingly, the

respondent No.3-authority has communicated with all

concerned the Taula Panchayat Offices vide letter dated

11.11.2013 and accordingly, the respondent nos.3 and 4 has

implemented the communication and passed and order of

fixation of pay with increment. Thereafter, the respondent

No.4 decided to cancel the earlier order for fixation of pay

with increment by passing General Order 25.09.2018, which

was received by the petitioners on 11.11.2013. Therefore, the

present petition is filed by the present petitioners whereby

the respondent - Authority has taken specific stand by

referring to Rule 11(1) of the Gujarat Civil Services (Pay)

Rules, 2002, which reads as under:

"11. Fixation of pay on appointment to another post involving assumption, duties or responsibilities of greater importance: (1) Where a Government employee holding a post in a substantive, temporary or officiating capacity, is promoted or appointed in a substantive, temporary or officiating capacity to higher post in normal course and the appointment to such post involves assumption of duties or responsibilities of greater importance than those attached to the post originally held by him, his initial pay in the time scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing

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his pay in respect of the lower post by one increment at the stage at which such pay has accrued, and, in the case of a Government employee drawing pay at the maximum of the pay-scale, by an amount equivalent to the last increment.

Note: "Pay" in respect of lower post referred to in the above sub-rule shall mean the officiating or substantive pay whichever is higher."

6.2 Considering the submissions of learned advocate for the

petitioners that in view of this, other prayers may not

survive, but, on the aspect of recovery pursuant to the

amounts, which are already paid to the present petitioners,

Rule 28 of the Gujarat Civil Services (Pay) Rules, 2002 will

come to the rescue of the present petitioners, which reads as

under:

"Rule 28. Pay when promotion or appointment is found to be erroneous:-

(1) Notwithstanding the provisions contained in these rules, the pay of a Government employee whose promotion or appointment to a post is found to be or to have been erroneous on the basis of facts, e.g. incorrect seniority, failure to apply any relevant rules or orders correctly, shall be regulated in accordance with the general or special orders issued by the

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Government in this behalf.

(2) When any rule or order regulating pay is made with retrospective effect, the pay of a Government employee affected by such order or rule, shall be fixed notionally as if the rule or order were applicable in his case but the Government employee concerned shall not be called upon to refund the resultant amount of over payment on account of pay and allowances;

Provided that in the case where the erroneous promotion or appointment was given on the basis of false information fur- nished by the concerned Government employee; depart- mental action shall be taken against him and the resultant amount of over payment on account of pay and allowances shall also be recovered from him. (emphasis supplied)."

6.3 For considering the said submission, it is fruitful to

refer the judgment of Co-ordinate Bench of this Court in the

case of Harishchandra Jagannath Brahmbatt vs. State of

Gujarat reported in 2019 (0) AIJEL-HC 241116, more

particularly, paragraph no.14 is relevant, which is as under:

"14. In the present case, even if the State Government was to act on such undertaking, it should have been within a reasonable period when the Local Fund Audit had approved the pay fixation. The impugned order

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has been passed after a span of almost 12 years, after the pay fixation was approved by the Local Fund Audit and entries to that effect were also made in the service book. Thus, the petitioner who is a retired employee was not paid the final retirement benefits due to impugned orders passed by the respondents effecting recovery of the amount of pay fixation, which was conferred to him since 1998. The State authorities being a model employer has to act very fairly and reasonably and has to see that a retired employee is not being harassed in such a manner due to their inaction. The impugned orders are replete with impropriety and the insouciant attitude shown by the respondents towards a retired employee requires to be highly deprecated."

6.4 Considering this aspect and considering the fact that

learned advocate for the petitioners is not pressing any other

prayer prayed in the present petitions except the prayer for

directing the respondent not to recover the amount and

considering the provisions of Rule 28 of the Gujarat Civil

Services (Pay) Rules, 2002, the case of the petitioners is

required to be considered, by considering the leading

judgment of the Hon'ble Apex Court on the aspect of

recovery in the case of State of Punjab & Ors vs Rafiq

Masih (White Washer) reported in (2015) 4 SSC 334, I am of

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