Gujarat High Court
Anand Agricultural University vs Jethalal Ambalal Patel on 17 June, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/644/2025 ORDER DATED: 17/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 644 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 15865 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/LETTERS PATENT APPEAL NO. 644 of 2025
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ANAND AGRICULTURAL UNIVERSITY
Versus
JETHALAL AMBALAL PATEL & ANR.
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Appearance:
MR DG CHAUHAN(218) for the Appellant(s) No. 1
MR RONAK D CHAUHAN(7709) for the Appellant(s) No. 1
MS VAISHNAVI VERMA, AGP for the Respondent(s) No. 2
MR SAMIR B GOHIL(5718) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
Date : 17/06/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present Letters Patent Appeal filed under Clause 15
of the Letters Patent, 1865, is directed against the judgment
and order dated 19.12.2024 passed by the learned Single
Judge in the captioned writ petition, wherein and whereby the
learned Single Judge has allowed the writ petition, directing the
appellant to refund the amount of Rs.4,12,782/- with 6%
interest per annum, within a period of six weeks from the date
of receipt of the order.
2. The brief facts, which are recorded by the learned Single
Judge in the judgment and order dated 19.12.2024, are not in
dispute. The same are incorporated as under: -
"3.2 It is, further, the case of the petitioner that he got selected on
the post of Research Assistant, by way of direct recruitment, vide
order dated 24.01.2006 and he was placed in the pay-scale of
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Rs.16400-450-20900-500-22400. It appears that pursuant to the
above, the pay fixation of the petitioner was done on 01.07.2006, by
virtue of the order dated 16.11.2006, and his basic-pay was increased
from Rs.16,400/- to Rs.16,850/-. According to the petitioner, since,
there was some mistake in the order dated 16.11.2006, the
respondentUniversity corrected the same by way of order dated
10.10.2008 and the basic pay of the petitioner was again raised to
Rs.18,650/- till 01.07.2010.
3.3 it is the grievance of the petitioner in this petition that after about
11 years from the date of his initial pay fixation, which was done in
the year 2006, he was communicated by Respondent No.1-University,
vide letter dated 16.07.2017, that as he was already granted the
benefit of pay-protection, his pay fixation was required to be revised,
as per the provisions of Rule 23 and Rule 13(c) of the Gujarat Civil
Services (Pay) Rules, 2002 ('Rules of 2002', hereinafter).
3.3.1 It is the further grievance of the petitioner that after the period
of about 11 years from the date of initial fixation of his pay and after
about five years from the date of his retirement, which was in the
year 2014, Respondent No.1- University asked the petitioner to
refund / deposit Rs.2,49,382/- towards the excess payment made to
him during the period between 25.01.2006 and 30.11.2014.
3.3.2 It appears that, thereafter, Respondent No.1- University again
issued a letter dated 26.05.2022 to the petitioner and asked the
petitioner to deposit Rs.1,62,950/-, which according to Respondent
No.1-University was paid to the petitioner in excess to the petitioner
towards pension and commuted pension, from the period between
01.12.2014 to 30.04.2020.
3.4 Thus, it is the grievance of the petitioner that he was made to
refund / deposit total Rs.4.12,782/- and hence, being aggrieved with
the same, he has preferred the present petition, seeking the reliefs as
noted, herein above."
3. Learned advocate Mr. Chauhan, at the outset, has
submitted that the respondent-employee had already
furnished an undertaking dated 18.02.2011, wherein he
agreed to refund the excess amount received on account of
incorrect fixation of pay. Pursuant to the said undertaking,
respondent No.1 was called upon to refund the excess amount
disbursed to him. It is further submitted that in light of the
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specific and unequivocal undertaking, the appellant was well
within its rights to recover the said amount.
4. Learned advocate Mr.Samir B. Gohil, appearing for the
respondent No.1 has opposed the Letters Patent Appeal and
urged that the judgment and order passed by the learned
Single Judge may not be interfered with.
5. We have heard the learned advocates appearing for the
respective parties.
6. The undisputed facts of the case are that the
respondent-employee was serving under the appellant and
retired from service on 30.11.2014. Pursuant to his retirement,
the appellant conducted the necessary audit and, after a lapse
of approximately four years, called upon the respondent-
employee to deposit a sum of Rs.4,12,782/-. In compliance, the
respondent-employee, despite being retired, deposited the
said amount. However, he subsequently challenged the action
of recovery. The learned Single Judge set aside the recovery by
observing as under:-
"6. Heard learned Advocates for the parties and perused the material
on record and I find that the petitioner, who had joined services with
Respondent No.1-University as Agricultural Supervisor in the year
1974, was selected, by way of direct recruitment, on the post of
Research Scientist in the year 2006. Pursuant thereto, the petitioner
was granted pay-fixation vide order dated 16.11.2006 and he was
placed in the payscale of Rs.16,850/- by raising his basic pay from
Rs.16,400/-. From the record it also emerges that on account of some
error / mistake in the order dated 16.11.2006, again payfixation of the
petitioner was done vide order dated 10.10.2008 and he was placed
in the pay-scale of Rs.18,650/-. The petitioner retired, on attaining the
age of superannuation, from the service in the year 2014 and it is
only after about five years thereafter, i.e. in the year 2019,
Respondent No.1- University issued the first impugned
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communication dated 22.07.2019, seeking recovery of Rs.2,49,382/-,
which was allegedly paid in excess to the petitioner. Thereafter, the
petitioner was again asked to refund Rs.1,62,950/-, which was
allegedly paid to him in excess, vide second order dated 26.05.2020
and in compliance of both the impugned orders, the petitioner has
refunded / deposited total Rs.4,12,782/- and on account of the same,
it was argued by learned Advocate, Mr. Chauhan, appearing for
Respondent No.1-University that, since, the petitioner has already
refunded the amount, in view of the undertaking given by him prior to
his pay-fixations, this petition shall not survive.
6.1 In view of the above submission made by learned Advocate, Mr.
Chauhan, appearing for Respondent No.1- University this Court has
to consider the circumstances, under which the petitioner was
compelled to refund Rs.4,12,782/-. The petitioner has challenged both
the orders of recovery on the ground that the same is in
contravention of the provisions of Rule 28(2) of the Rules of 2002,
which reads thus;
"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 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 overpayment 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
furnished by the concerned Government employee;
departmental action shall be taken against him and the resultant
amount of overpayment on account of pay and allowances shall
also be recovered from him.(emphasis supplied)"
6.1.1 On perusal of Rule 28 (2) of the Rules of 2002, it becomes clear
that the same provides that as and when any rule is made or an order
is passed, regulating the pay of an employee and the same is given
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effect retrospectively, the pay of the government employee affected
by such rule or order shall be fixed notionally, as if, such rule / order
was applicable in case of the concerned employee, but, such an
employee shall not be asked to refund / deposit the amount received
by him due to over or excess payment.
6.1.2 In the instant case, the first pay-fixation of the petitioner was
done twice, i.e. in the years 2006 and 2008, whereas, the impugned
orders seeking refund / recovery came to be passed even after more
than five years from the date of his retirement, i.e. 30.11.2014.
6.1.3 In other words, though, Rule 28(2) of the Rules of 2002 permits
rectification of error or mistake in pay-fixation, the same expressly
prohibits recovery of any excess payment made to the concerned
employee on account of mistake / error in his pay-fixation, if, the
same is not attributable to him and thus, recovery of the amount paid
in excess to the petitioner by Respondent No.1-University shall have
to be held in complete violation or contravention of the provisions of
Rule 28(2) of the Rules of 2002."
7. The learned Single Judge, while allowing the writ petition,
placed reliance on the judgment of the Hon'ble Supreme Court
in the case of State of Punjab and Others v. Rafiq Masih (White
Washer), (2015) 4 SCC 334, as well as in the case of Pani Ram
v. Union of India and Others, AIR 2022 SC 182. Furthermore,
the learned Single Judge also took into consideration the
provisions of Section 28(2) of the Gujarat Civil Services (Pay)
Rules, 2002, which expressly prohibits recovery of excess
payments made on account of erroneous fixation of pay
pursuant to promotion or appointment.
8. In the present case, as per the case of the appellant, the
pay was incorrectly fixed before the retirement of the
respondent - employee in the year 2006. The entire case of
the appellant hinges upon the undertaking furnished by the
respondent-employee before the appellant-University in the
year 2011. However, it is an undisputed fact that no steps
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were taken by the appellant to rectify the pay fixation prior to
the retirement of respondent No.1. The recovery proceedings
were initiated only after a lapse of four years post-retirement,
which is impermissible in law. If any recovery or refixation was
warranted, the same ought to have been undertaken during
the tenure of service, and not thereafter.
9. In view of the above, we find no merits in the present
appeal. Accordingly, the Letters Patent Appeal stands rejected.
The necessary payment, as directed by the learned Single
Judge relating to refund of amount along with interest shall be
paid within a period of four weeks from today.
10. As a sequel, the connected civil application also stands
disposed of accordingly.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(R. T. VACHHANI, J)
MAHESH/33
