Gujarat High Court

Parmar Kirtarsinh Aniruddhsinh vs State Of Gujarat on 23 June, 2025

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                             C/SCA/8466/2018                                ORDER DATED: 23/06/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 8466 of 2018
                                                         With
                                     R/SPECIAL CIVIL APPLICATION NO. 9977 of 2018
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                                       PARMAR KIRTARSINH ANIRUDDHSINH & ORS.
                                                       Versus
                                             STATE OF GUJARAT & ORS.
                      ==========================================================
                      Appearance:
                      MR GAURAV CHUDASAMA(5660) for the Petitioner(s) No. 1,2,3,4,5,6,7
                      MR. JEET JOTANGIA, AGP for the Respondent(s) No. 1,2
                      MR HS MUNSHAW(495) for the Respondent(s) No. 4
                      NOTICE SERVED BY DS for the Respondent(s) No. 3
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                        Date : 23/06/2025
                                                      COMMON 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.8466 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.8466 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.10-04-2018 passed by the respondent no.3 for implementing the letter Dt.02-04-2018 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.10-04-2018 passed by the respondent no.3 and 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.9977 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 quash and set aside the communication Dt.29-05-2018 (24-05-2018) passed by the

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respondent no.3 for implementing the letter Dt.02-04-2018 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.10-04-2018 passed by the respondent no.1 and 2.

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.8466 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

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have applied for the post the of head teacher and the

petitioners have been appointed as Head Teacher in the

Surendranagar District and the respondent no.4 has

issued appointment letters to the present petitioners. It

is further the case of the petitioners in this petition that

thereafter the respondent no.4 has fixed the pay with

the increment as per the Gujarat Civil Services (Pay)

Rules, 2002 and accordingly, the respondent no.4

authority has communicated with all Taula Panchayat

Offices vide letter dated 09.10.2013 and accordingly, the

respondent no.3 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. 3 has made

communication with the all principals of school of Taluka

Vadhwan, District: Surendranagar and as per the

communication with the respondent no. 1, 2 and 3, they

have decided to cancel the earlier order for fixation of

pay with increment by passing general order dated

10.04.2018, which was received by the petitioners on

23.04.2018. It is further the case of the petitioners in

this petition that thereafter the petitioners have made

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representation to the the respondent no.4 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.4 has

not considered the said representation and started

deducting amount from the salary of the present

petitioners. Thereafter, the petitioners have filed one

representation also to the respondent no.2 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. H.S. Munshaw, learned advocate for

the respondent No.4 and Mr. Jeet Jotangia, 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

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Services (Pay) Rules, 2002 and, therefore, the authority

has sent communications dated 02.04.2018 and 10.04.2018

in Special Civil Application No.8466 of 2018 and

communications dated 02.04.2018 and 10.04.2018 and

29.05.2018 (24.05.2018) in Special Civil Application

No.9977 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

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,

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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. H.S. Munshaw, learned advocate for the respondent No.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 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. Mr. Jeet Jotangia, 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

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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

Surendranagar District and the respondent no.4 has

issued appointment letters to the present petitioners. It

also transpires that thereafter the respondent no.4 has

fixed the pay with the increment as per the Gujarat

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

respondent No.4- authority has communicated with all

concerned the Taula Panchayat Offices vide letter dated

09.10.2013 and accordingly, the respondent no.3 has

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implemented the communication and passed and order of

fixation of pay with increment. Thereafter, the

respondent No.3 has made communication all the

Principals of the Pay Center Schools of Taluka Vadhwan,

District: Surendranagar and as per the communication

with the respondent Nos.1 to 3, it is decided to cancel

the earlier order for fixation of pay with increment by

passing General Order 10.04.2018, which was received by

the petitioners on 23.04.2018. 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 his pay in respect of the lower post by one increment at the stage at

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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 Government in this behalf.

(2) When any rule or order regulating pay is made with

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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 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

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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 the that the present

petition is required to be partly allowed as the

petitioners have not pressed the present petition for the