Gujarat High Court
Rajendra Ramnikbhai Pandya vs Bhavnagar Municipal Corporation on 26 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11765 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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RAJENDRA RAMNIKBHAI PANDYA
Versus
BHAVNAGAR MUNICIPAL CORPORATION
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE with
ADITI S RAOL(8128) for the Petitioner
MR HS MUNSHAW, ADVOCATE for the Respondent - Bhavnagar Municipal
Corporation
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 26/09/2025
ORAL JUDGMENT
1. The present petition, under Article 226 of the
Constitution of India, is filed by the petitioner with the
following main prayers.
"19(A) Your Lordships may be pleased
to issue a writ of certiorari or any other
appropriate writ, order or direction, declaring
the impugned order dated 28.10.2010 passed
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by the respondent Corporation and the
consequent recovery as bad in law,
capricious, arbitrary, violative of the
principles of natural justice and quashing
and setting aside the same;
(B) Your Lordships may be pleased to
issue a writ of mandamus or any other
appropriate writ, order of direction, directing
or commanding the respondent Corporation to
refix the pay of the petitioner in the pay
scale of Rs.8000- 13500 with effect from
01.08.2005 and grant all other consequential
benefits with interest at the rate of 9% per
annum;
(C) Pending admission, hearing and final
disposal of the present petition, Your
Lordships may be pleased to direct the
respondent Corporation to consider the case
of the petitioner in light of the CAV
judgment dated 16.08.2016 passed by this
Hon'ble Court in Special Civil Application
No.14370 of 2011;"
2. Heard learned senior advocate Mr.Shalin Mehta
with learned advocate Ms. Aditi Raol for the petitioner and
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learned advocate Mr.H.S. Munshaw for the respondent -
Bhavnagar Municipal Corporation ('the Corporation' for short).
3. The brief facts, as stated by the petitioner, are
epitomized as under.
3.1 The petitioner was initially appointed as Sub
Auditor on an ad-hoc basis on 22.05.1989. He was made
permanent on 01.04.1996.
3.2 He was promoted as Senior Auditor on 18.01.1997
in pay-scale of Rs.5500-9000 (old pay-scale was Rs.1640-2000)
w.e.f. 01.08.1996.
3.3 The respondent - Bhavnagar Municipal Corporation
has granted the benefits of higher pay scale to the petitioner
under the Government Resolution dated 16.08.1994.
Accordingly, the petitioner was granted the pay-scale of
Rs.8000-13500, which is a pay-scale for the post of Deputy
Chief Auditor, which is a next promotional post of Senior
Auditor.
3.4 It has come to the notice of the respondent -
Corporation, after about three years, that there is an error
while granting the benefits to the petitioner under the G.R.
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dated 16.08.1994. There is another Government Resolution
dated 14.081998, modifying / clarifying the Government
Resolution dated 16.08.1994, which has not been taken into
consideration by the respondent - Corporation at the relevant
time.
3.5 Accordingly, the respondent - Corporation has re-
fixed the higher pay-scale vide impugned order dated
28.10.2010 and placed the petitioner in the pay-scale of
Rs.6500-10500. The respondent - Corporation has also
recovered the excess amount paid to the petitioner upto
December, 2016.
3.6 It is this order impugned of the year 2010, which
is challenged by the petitioner in this petition, that too in
the year 2017.
4.1 Learned senior advocate Mr.Shalin Mehta with
learned advocate Ms.Aditi Raol for the petitioner has
submitted that the scheme of granting the benefit of higher
pay scales introduced by the Government in its Resolution
dated 16.08.1994, as adopted by the respondent - Corporation
for its employees, is a 'safety net' to deal with the problem
of stagnation on the same post and the resultant hardships
faced by the employees due to lack of adequate promotional
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avenues; and that financial upgradation under the scheme is
given to the next higher promotional grade in accordance
with the existing hierarchy of posts; and that the G.R. dated
16.08.1994 clearly stipulates that on completion of the
stipulated period of 9, 18 or 27 years on a post, the holder
of the post is to be given the pay scale of the next higher
promotional post in the regular line of promotion, since the
benefit of higher pay scale is given in lieu of promotion; and
that granting of higher pay scale is linked to the next higher
promotional post in the hierarchy of posts and not to the
next higher pay scale in the standard structure of scales of
pay; and that the posts which are part of a well defined
cadre with promotional posts should be given the benefits of
the scheme conforming to the existing hierarchical structure
only; and that this Hon'ble Court by its CAV judgment dated
16.08.2016 passed in Special Civil Application No.14370 of
2016 upheld that the Government Resolution dated 16.08.1994
envisages grant of pay scale of the next promotional post of
Deputy Chief Auditor, viz., Rs.8000-13500 to a person
stagnating on the post of Senior Auditor; and that the said
decision has decided the question of law and hence, the
judgment in rem with the intention to give benefit to all
similarly situated persons, whether they approached the Court
or not; and that the impugned order dated 28.10.2010 passed
by the respondent - Corporation ordering that the petitioner
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is entitled to the benefit of next higher pay scale of Rs.6500-
10500 instead of the pay scale of his next higher promotional
post of Deputy Chief Auditor, namely Rs.8000-13500, is
contrary to the scheme of the State Government, as adopted
by the respondent - Corporation for its employees, and thus,
is illegal and deserves to be quashed and set aside; and that
three departments viz., Commissionerate, Audit and
Secretariat are totally distinct and separate than the other
set up of the respondent - Corporation; and that the
petitioner was granted higher pay scale by order dated
05.04.2007 with retrospective effect from 01.08.2005 and the
impugned order of re-fixing the higher pay scale is passed on
28.10.2010, therefore, the respondent - Corporation cannot
take any action at this belated stage since it has become
time barred; and that the respondent - Corporation cannot
and should not recover the supposed overpayment made to
the petitioner due to inadvertence on the part of the
respondent - Corporation; and that for no fault of
petitioner's, he cannot be penalized by way of recovery of
what has been paid to him rightly by way of order dated
05.04.2007; and that the impugned order dated 28.10.2010 is
without issuing any show cause notice or hearing the
petitioner, therefore, it entails adverse civil consequences. He
has submitted that this petition may be allowed.
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4.2 In support of his submissions, he has relied upon
the decision of the Hon'ble Apex Court in the case of
Rushibhai Jagdishbhai Pathak versus Bhavnagar Municipal
Corporation reported in 2022 SCC OnLine SC 641 and State
of Punjab versus Rafiq Masih (White Washer) reported in
(2015) 4 SCC 334.
5.1 Per contra, learned advocate Mr. H.S. Munshaw
for the respondent - Bhavnagar Municipal Corporation has
vehemently opposed this petition. He has drawn the attention
of this Court towards the affidavit in reply filed by the
respondent - Corporation and has submitted that at a very
belated stage i.e. after about more than seven years of
passing of the impugned order, the present petition is filed
by the petitioner, which is not permissible; and that the
petitioner is a fence sitter, watching the litigation filed by
the other employees before this Court in the year 2011,
waiting for the result and filed this petition, therefore, such
action and/or approach of the petitioner may not be approved,
that too at this belated stage; and that the order impugned
was of the year 2011 in that petition which was challenged
by the other persons in the year 2011 itself; and that the
petitioner was fully aware about the error committed by the
respondent - Corporation; and that the petitioner has rightly
allowed a recovery; and that the petitioner has never objected
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till the total recovery is made upto December, 2016; and that
the petitioner has not challenged that action of the
respondent - Corporation before any forum before 2017; and
that the excess payment is recovered in the interest of public
exchequer; and that the respondent - Corporation has rightly
considered the G.R. dated 14.08.1998; and that the said G.R.
dated 14.08.1998 was issued after implementation of the
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recommendations of 5 Pay Commission w.e.f. 01.01.1996; and
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that even G.R. dated 16.08.1994 passed on pay-scale of 4
Pay Commission provided that the first higher pay scale
would be Rs.2000-3500 against the pay scale of Rs.1640-2990;
and that as soon as the error came to the notice of the
respondent - Corporation, the issue was examined thoroughly
and it was decided to re-fix the pay scale of the petitioner
and accordingly, the impugned order dated 28.10.2010 is
passed; and that the petitioner has preferred Reference (IT)
No.132 of 1999 before the learned Industrial Tribunal for
promotion to the post of Deputy Chief Auditor carrying the
pay scale of Rs.8000-13500, which was dismissed by the
learned Tribunal on 06.09.2017 vide reasoned order, which
the petitioner did not challenge before any higher forum till
date; and that the respondent - Corporation is an
autonomous body and all the departments have different work
which is given by the respondent - Corporation for its
smooth functioning, therefore, it cannot be said that the
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Auditor, Commissionerate and Secretariat departments are
different than the others and they are different entities. He
has submitted that this petition may be dismissed.
5.2 In support of his submissions, he has relied upon
the decisions of the Hon'ble Apex Court in the case of High
Court of Punjab and Haryana versus Jagdev Singh reported
in (2016) 4 SCC 267 as well as Rushibhai Jagdishbhai
Pathak versus Bhavnagar Municipal Corporation reported in
2022 SCC OnLine SC 641.
6. I have considered the rival submissions made by
the learned advocates for the respective parties. I have also
considered the documents available on record. The picture
which has emerged before this Court is as under.
6.1 Initially, the petitioner was appointed as Sub
Auditor on ad-hoc basis on 22.05.1989. Thereafter, he was
made permanent on 01.04.1996, pursuant to the order passed
by this Court in the case of the petitioner and other
similarly situated persons. He was promoted as Senior
Auditor on 18.01.1997 in pay-scale of Rs.5500-9000 (old pay-
scale was Rs.1640-2000) w.e.f. 01.08.1996. The respondent -
Corporation has resolved to implement the Government
Resolution dated 16.08.1994 with regard to higher pay scales
w.e.f. 01.01.2000. Accordingly, the same was to be
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implemented initially w.e.f. 01.01.2000 to 31.12.2005 and
actual benefits were to be given w.e.f. 01.01.2006 as there
was deliberation with the Unions in this regard. Accordingly,
the respondent - Corporation has granted the benefits of
higher pay scale to the petitioner. The petitioner was granted
the pay-scale of Rs.8000-13500, which is a pay-scale for the
post of Deputy Chief Auditor, which is a next promotional
post of Senior Auditor. At the time of granting said higher
pay scale, the petitioner gave an undertaking that he would
abide by all the subsequent and relevant Government
Resolutions / Notifications issued from time to time.
6.2 Later on, it came to the knowledge of the
respondent - Corporation that an employee in the pay scale
of Rs.5500-9000 was, as such, entitled to Rs.6500-10500 as
the first higher pay scale as per the Government Resolution
dated 14.08.1998. The said G.R. dated 14.08.1998 is issued
th
after the implementation of the recommendations of the 5
Pay Commission w.e.f. 01.01.1996. Therefore, as soon as this
error came to the notice of the respondent - Corporation, the
issue was examined thoroughly and it was decided to re-fix
the pay scale of the petitioner and accordingly, the petitioner
is placed in the pay scale of Rs.6500-10500 instead of
Rs.8000-13500. Consequently, the respondent - Corporation
has recovered the excess amount paid to the petitioner in
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installments from 2010 to 2016.
6.3 The said action of the respondent - Corporation of
the year 2010 was not challenged by the petitioner before
any higher forum and/or authority till 2017 i.e. till filing of
this petition, indisputably.
6.4 Instead, the petitioner has approached the learned
Industrial Tribunal for getting promotion to the post of
Deputy Chief Auditor by preferring Reference (IT) No.132 of
1999. The learned Industrial Tribunal has, after hearing the
respective parties, vide its reasoned order dated 06.09.2017,
dismissed the said Reference proceedings, on merit. Be that
as it may. However, it is a matter of record that the
petitioner did not challenge the impugned order of 2010
before any forum till 2017.
6.5 It is pertinent to note that the respondent -
Corporation has also passed an order re-fixing the higher pay
scale in the case of other persons in the year 2011. The said
persons have approached this Court in the year 2011 itself
by filing a petition being Special Civil Application No.14370
of 2011 and this Court has stayed the recovery in view of
the decision of the Hon'ble Apex Court in the case of Rafiq
Masih (supra) as well as the impugned order passed in their
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case has been set aside vide judgment dated 16.08.2016.
6.6 The petitioner was a fence-sitter. He was watching
the litigation filed by other persons noted above. It transpires
that soon after that decision has come, the petitioner has
approached this Court in the year 2017. Therefore, about
seven years have been passed, that too without any
explanation of delay.
6.7 Now, the petitioner is making hue and cry at this
stage, that too after about seven years and more particularly,
when the other persons, who are vigilant for their rights,
have succeeded.
6.8 In this background, this Court is deciding this
petition, under Article 226 of the Constitution of India, with
such averments as well as with such factual position.
7.1 At this stage, it would be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of State of
Uttar Pradesh versus Arvind Kumar Srivastava reported in
(2015) 1 SCC 347 = 2014(0) AIJEL-SC 55837, more
particularly paras : 23 and 24 thereof, which read as under.
"23. State of Karnataka & Ors. V/s. S.M.
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Kotrayya & Ors., (1996) 6 SCC 267 is, on the
other hand, a service matter. Here, the
respondents, while working as teachers in the
Department of Education, availed of Leave Travel
Concession (LTC) during the year 1981-82. But
later it was found that they had never utilised the
benefit of LTC but had drawn the amount and
used it. Consequently, recovery was made in the
year 1984-86. Some persons in similar cases
challenged the recovery before the Administrative
Tribunal which allowed their Applications in
August 1989. On coming to know of the said
decision, the respondents filed Applications in
August 1989 before the Tribunal with an
application to condone the delay. The Tribunal
condoned the delay and allowed the OAs. Appeal
against the said order was allowed by this Court
holding that there was unexplained delay in
approaching the Tribunal. The Court relied upon
the Constitution Bench case in S.S. Rathore V/s.
State of M.P., (1989) 4 SCC 582, which deals with
the manner in which limitation is to be counted
while approaching the Administrate Tribunal under
the Administrative Tribunal Act, 1985. Here again,
on the ground of delay, the Court refused to
extend the benefit of judgment passed in respect of
other similarly situated employees.
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24. Both these judgments, along with some other
judgments, were take note of in U.P. Jal Nigam &
Anr. V/s. Jaswant Singh & Anr., (2006) 11 SCC
464. That was a case where the issue pertained to
entitlement of the employees of U.P. Jal Nigam to
continue in service up to the age of 60 years. In
Harwindra Kumar V/s. Chief Engineer, Karmik,
(2005) 13 SCC 300, this Court had earlier held
that these employees were in fact entitled to
continue in service up to the age of 60 years.
After the aforesaid decision, a spat of writ
petitions came to be filed in the High Court by
those who had retired long back. The question that
arose for consideration was as to whether the
employees who did not wake up to challenge their
retirement orders, and accepted the same, and had
collected their post retirement benefits as well,
could be given relief in the light of the decision
delivered in Harwindra Kumar (supra). The Court
refused to extend the benefit applying the principle
of delay and laches. It was held that an important
factor in exercise of discretionary relief under
Article 226 of the Constitution of India is laches
and delay. When a person who is not vigilant of
his rights and acquiesces into the situation, his
writ petition cannot be heard after a couple of
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years on the ground that the same relief should be
granted to him as was granted to the persons
similarly situated who were vigilant about their
rights and challenged their retirement. In para 7,
the Court quoted from M/s. Rup Diamonds & Ors.
(supra). In para 8, S.M. Kotrayya (supra) was
taken note of. Some other judgments on the same
principle of laches and delays are taken note of in
paras 9 to 11 which are as follows:
"9. Similarly in Jagdish Lal V/s. State of
Haryana, (1997) 6 SCC 538, this Court
reaffirmed the rule if a person chose to sit
over the matter and then woke up after the
decision of the court, then such person
cannot stand to benefit. In that case it was
observed as follows:
"The delay disentitles a party to
discretionary relief under Article 226 or
Article 32 of the Constitution. The
appellants kept sleeping over their
rights for long and woke up when they
had the impetus from Union of India
V/s. Virpal Singh Chauhan, (195) 6
SCC 684. The appellants' desperate
attempt to redo the seniority is not
amenable to judicial review at this
belated stage."
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10. In Union of India V/s. C.K. Dharagupta, (1997)
3 SCC 395, it was observed as follows:
"9. We, however, clarify that in view of our
finding that the judgment of the Tribunal in
of 1986 decided on 17-3-1987, gives relief
only to Joshi, the benefit of the said
judgment of the Tribunal cannot be extended
to any other person. The respondent C.K.
Dharagupta (since retired) is seeking benefit
of Joshi case. In view of our finding that
the benefit of the judgment of the Tribunal
dated 17-3- 1987 could only be given to
Joshi and nobody else, even Dharagupta is
not entitled to any relief."
11. In Govt. of W.B. V/s. Tarun K. Roy, (1997) 3
SCC 395, their Lordships considered delay as
serious factor and have not granted relief. Therein
it was observed as follows:
"34. The respondents furthermore are not
even entitled to any relief on the ground of
gross delay and laches on their part in filing
the writ petition. The first two writ petitions
were filed in the year 1976 wherein the
respondents herein approached the High
Court in 1992. In between 1976 and 1992
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not only two writ petitions had been decided,
but one way or the other, even the matter
had been considered by this Court in State
of W.B. V/s. Debdas Kumar, 1991 Supp (1)
SCC 138. The plea of delay, which Mr.
Krishnamani states, should be a ground for
denying the relief to the other persons
similarly situated would operate against the
respondents. Furthermore, the other
employees not being before this Court
although they are ventilating their grievances
before appropriate courts of law, no order
should be passed which would prejudice their
cause. In such a situation, we are not
prepared to make any observation only for
the purpose of grant of some relief to the
respondents to which they are not legally
entitled to so as to deprive others therefrom
who may be found to be entitled thereto by
a court of law."
7.2 Under the circumstances, it would be relevant to
fruitful to keep in mind the doctrine of laches. Derived from
the Latin maxim "vigilantibus non dormientibus jura
subveniunt", the doctrine operates to ensure fairness and
justice by preventing individuals from taking undue advantage
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of delays in litigation. Laches refers to the neglect or
unreasonable delay in pursuing a legal remedy or claim. It is
not merely about the passage of time but about the
inequitable consequences that arise from such delay. The
doctrine of laches aims to promote fairness by protecting
defendants from stale claims. The doctrine of laches is an
equitable principle rooted in the idea that, equity aids the
vigilant, not those who slumber on their rights. It essentially
bars a claimant from seeking legal relief if they have
unreasonably delayed in asserting their rights. The maxim
clearly defines that the law would only help the Court in the
fast delivery of justice and not those who forget to claim
their rights at the right time. The elements of the doctrine
of laches have been satisfied by the petitioner that : (i) delay
must be unreasonable at the time of bringing the matter, (ii)
negligence in asserting a claim or right and (iii) knowledge of
a claim by the petitioners in advance.
7.3 At this stage, it would be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of State of
Orissa and Another versus Mamta Mohanty reported in
(2011) 3 SCC 436, more particularly para : 54 thereof, which
reads as under.
"54. This Court has consistently rejected the contention
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that a petition should be considered ignoring the delay
and laches in case the petitioner approaches the Court
after coming to know of the relief granted by the Court
in a similary cas as the same cannot furnish a proper
explanation for delay and laches. A litigant cannot wake
up from deep slumber and claim impetus from the
judgment in cases where some diligent person had
approached the Court within a reasonable time."
Under the circumstances, the petitioner has to give
a reasonable explanation for the delay, which is not found in
the present case.
7.4 It would also be fruitful to refer to the decision of
the Hon'ble Apex Court in the case of Rushibhai
Jagdishchandra Pathak (supra), on which the petitioner is
relied upon, more particularly para : 17 thereof, which reads
as under.
"17. We are also inclined to grant interest to the
appellants on the arrears at the rate of 7% per
annum, which would be payable with effect from
1st September 2017. We have fixed the said date
for grant of interest as the respondent-Corporation
has accepted the interpretation of the Scheme
rendered on 16th August 2016 in the Writ Petition
preferred by Mukeshbhai Jaswantrai Joshi.
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Normally, and as a model employer, on accepting
the said decision, the respondent-Corporation should
have uniformly applied and granted the benefit to
all its similarly situated employees affected by the
order dated 28th October 2010. This would have
avoided unnecessary litigation before the courts, as
was held in State of Uttar Pradesh and Others v.
Arvind Kumar Srivastava and Others, (2015) 1
SCC 347:
"22.1. The normal rule is that when a
particular set of employees is given
relief by the court, all other identically
situated persons need to be treated
alike by extending that benefit. Not
doing so would amount to
discrimination and would be violative of
Article 14 of the Constitution of India.
This principle needs to be applied in
service matters more emphatically as
the service jurisprudence evolved by
this Court from time to time postulates
that all similarly situated persons
should be treated similarly. Therefore,
the normal rule would be that merely
because other similarly situated persons
did not approach the Court earlier,
they are not to be treated differently.
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22.2. However, this principle is subject
to well-recognised exceptions in the
form of laches and delays as well as
acquiescence. Those persons who did
not challenge the wrongful action in
their cases and acquiesced into the
same and woke up after long delay
only because of the reason that their
counterparts who had approached the
court earlier in time succeeded in their
efforts, then such employees cannot
claim that the benefit of the judgment
rendered in the case of similarly
situated persons be extended to them.
They would be treated as fence-sitters
and laches and delays, and/or the
acquiescence, would be a valid ground
to dismiss their claim.
22.3. However, this exception may not
apply in those cases where the
judgment pronounced by the court was
judgment in rem with intention to give
benefit to all similarly situated persons,
whether they approached the court or
not. With such a pronouncement the
obligation is cast upon the authorities
to itself extend the benefit thereof to
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all similarly situated persons. Such a
situation can occur when the subject-
matter of the decision touches upon the
policy matters, like scheme of
regularisation and the like (see K.C.
Sharma v. Union of India). On the
other hand, if the judgment of the
court was in personam holding that
benefit of the said judgment shall
accrue to the parties before the court
and such an intention is stated
expressly in the judgment or it can be
impliedly found out from the tenor and
language of the judgment, those who
want to get the benefit of the said
judgment extended to them shall have
to satisfy that their petition does not
suffer from either laches and delays or
acquiescence." "
8. Further, consequent to the impugned order, the
respondent - Corporation has made a recovery of the excess
amount inadvertently paid to the petitioner. The respondent -
Corporation has recovered the said excess amount from the
year 2010 to 2016 in the installments. The petitioner did not
challenge the said action of the respondent - Corporation,
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though fully aware, for seven years, indisputably and now, he
approached this Court with a prayer to set aside the said
impugned order of the year 2010, consequently, a recovery
order. At this stage, it would be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of High Court
of Punjab and Haryana versus Jagdev Singh reported in 2016
(0) AIJEL-SC 58951 = (2016) 4 SCC 267, more particularly,
paras : 8, 9, 11 and 12 thereof, which read as under.
"8. The order of the High Court has been
challenged in these proceedings. From the
record of the proceedings, it is evident that
when the Respondent opted for the revised
pay scale, he furnished an undertaking to
the effect that he would be liable to refund
any excess payment made to him. In the
counter affidavit which has been filed by the
Respondent in these proceedings, this
position has been specifically admitted.
Subsequently, when the rules were revised
and notified on 7 May 2003 it was found
that a payment in excess had been made to
the Respondent. On 18 February 2004, the
excess payment was sought to be recovered
in terms of the undertaking.
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9. The submission of the Respondent,
which found favour with the High Court,
was that a payment which has been made
in excess cannot be recovered from an
employee who has retired from the service of
the state. This, in our view, will have no
application to a situation such as the
present where an undertaking was
specifically furnished by the officer at the
time when his pay was initially revised
accepting that any payment found to have
been made in excess would be liable to be
adjusted. While opting for the benefit of the
revised pay scale, the Respondent was clearly
on notice of the fact that a future re-fixation
or revision may warrant an adjustment of
the excess payment, if any, made.
11. The principle enunciated in proposition
(ii) above cannot apply to a situation such
as in the present case. In the present case,
the officer to whom the payment was made
in the first instance was clearly placed on
notice that any payment found to have been
made in excess would be required to be
refunded. The officer furnished an
undertaking while opting for the revised pay
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scale. He is bound by the undertaking.
12. For these reasons, the judgment of the
High Court which set aside the action for
recovery is unsustainable. However, we are
of the view that the recovery should be
made in reasonable installments. We direct
that the recovery be made in equated
monthly installments spread over a period of
two years."
9. Further, the petitioner was granted higher pay
scale by the respondent Corporation considering the G.R.
dated 16.08.1994. In the said G.R., the provisions for
extending benefit of higher pay scale is there and the
respondent - Corporation has extended the same to the
petitioner. From the affidavit in reply, it transpires that the
respondent - Corporation has inadvertently extended the said
higher pay scale and the G.R. dated 14.08.1998 was not
considered at the relevant point of time. The G.R. dated
th
14.08.1998 is subsequent to the effect of the 5 Pay
Commission i.e. 01.01.1996.
10. Further, at this stage, it would be fruitful to refer
to the schedule attached to the G.R. dated 14.08.1998, for
more clarity, which is as under.
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Sr. Revised Pay Scale Receivable Higher Pay
No. w.e.f. 01.01.1996 (Rs.) Scale w.e.f. 01.01.1996
(Rs.)
1. 2550-3200 2610-3540
2. 2610-3540 2650-4000
3. 2650-4000 3050-4590
4. 2750-4400 3200-4900
5. 3050-4500 4000-6000
6. 3200-4900 4000-6000
7. 3050-4590 4000-6000
8. 4000-6000 4500-7000
9. 4500-7000 5000-8000
10. 5000-8000 5500-9000
11. 5500-9000 6500-10500
12. 5655-9155 6500-10500
13. 6500-10500 8000-13500
From above, it transpires that there is no higher
pay scale fixed by the Government in the revised G.R. dated
14.08.1998 from 5500-9000 to 8000-13500. We cannot read the
G.R. dated 16.08.1994 in isolation. Since the Government,
after appropriate deliberation, issued another G.R. dated
14.08.1998 which is in consonance with the G.R. dated
16.08.1994 and modifying the G.R. dated 16.08.1994, we
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should read both the Government Resolutions i.e. 16.08.1994
and 14.08.1998 conjointly.
11. Further, while accepting the higher pay scale of
Rs.8000-13500, the petitioner has given Undertaking before
the respondent - Corporation that all the subsequent
Government Resolutions, Notifications, Instructions of the
Government shall be followed by him. In the present case,
initially, the respondent - Corporation has given the benefits
of the higher pay scale of Rs.8000-13500 as per G.R. dated
16.08.1994. The respondent has come to the knowledge about
the inadvertent error and therefore, as per the G.R. dated
14.08.1998, the higher pay scale of the petitioner has been
re-fixed and excess amount paid to the petitioner has been
ordered to be recovered by the respondent - Corporation vide
impugned order dated 28.10.2010. The Government has issued
the said G.R. dated 14.08.1998 to clarify or to modify the
errors of the G.R. dated 16.08.1994. The respondent -
Corporation has to follow the said G.R. dated 14.08.1998
scrupulously. Therefore, soon after coming to the knowledge
about the inadvertent error, the respondent - Corporation has
corrected the said inadvertent error and re-fixed the pay
scale of the petitioner.
12.1 At this stage, the doctrine of approbate and
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reprobate needs to be kept in mind. This doctrine is based
on the maxim 'quod approbo non reprobo', which means that,
'which I approve, I cannot disapprove' or it can also be
inferred as 'one cannot eat a cake and have it too'. In other
words, one cannot blow hot and cold by both; accepting and
rejecting the same. In the present case, the petitioner has
received the benefits of higher pay scale as per G.R. dated
16.08.1994 and on the other hand, when the Government has
modified and/or amended the said G.R. dated 16.08.1994 vide
its another G.R. dated 14.08.1998 and the Corporation has
given the effect of the subsequent G.R., which is in fact
second part of the first G.R., the petitioner started hue and
cry. At the time of receiving the benefits of higher pay scale,
the petitioner has given Undertaking that the subsequent
G.Rs., Notifications, Instructions of the Government in this
regard will be binding to him.
12.2 At this stage, it would be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of Mumtaz
Yarud Dowla Wakf versus M/s. Badam Balakrishna Hotel
Pvt. Ltd., & Others reported in 2023 INSC 949, more
particularly para : 15 thereof, which reads as under :
"15. The conduct of a party assumes
significance. If a party is likely to have an
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undue advantage, despite the availability of
an opportunity to raise a plea of lack of
jurisdiction at an earlier point of time, it
should not be permitted to do so during the
execution proceedings. In other words, a
plaintiff shall not be made to suffer by the
passive act of the defendant in submitting to
the jurisdiction. One has to see the
consequence while taking note of the huge
pendency of the cases before various Courts
in the country. There is no gainsaying that
but for the adverse decree suffered, a
judgment-debtor would not have ventured to
raise such a plea. It is clearly a case of an
afterthought to suit his convenience. He
cannot be allowed to approbate and reprobate.
Though we are conscious about the earlier
precedents dealing with the stage at which
such a plea can be raised, much water has
flown under the bridge in terms of the
ground reality. Union of India and Others v.
N. Murugesan and Others, (2022) 2 SCC 25,
"Approbate and reprobate
26. These phrases are borrowed from the
Scots law. They would only mean that no
party can be allowed to accept and reject the
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same thing, and thus one cannot blow hot
and cold. The principle behind the doctrine of
election is inbuilt in the concept of approbate
and reprobate. Once again, it is a principle of
equity coming under the contours of common
law. Therefore, he who knows that if he
objects to an instrument, he will not get the
benefit he wants cannot be allowed to do so
while enjoying the fruits. One cannot take
advantage of one part while rejecting the
rest. A person cannot be allowed to have the
benefit of an instrument while questioning
the same. Such a party either has to affirm
or disaffirm the transaction. This principle
has to be applied with more vigour as a
common law principle, if such a party
actually enjoys the one part fully and on
near completion of the said enjoyment,
thereafter questions the other part. An
element of fair play is inbuilt in this
principle. It is also a species of estoppel
dealing with the conduct of a party. We have
already dealt with the provisions of the
Contract Act concerning the conduct of a
party, and his presumption of knowledge
while confirming an offer through his
acceptance unconditionally.
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27. We would like to quote the following
judgments for better appreciation and
understanding of the said principle:
27.1. Nagubai Ammal v. B. Shama Rao
[ Nagubai Ammal v. B. Shama Rao, 1956
SCR 451 : AIR 1956 SC 593 ] : (AIR pp.
601-02, para 23)
"23. But it is argued by Sri
Krishnaswami Ayyangar that as the
proceedings in OS. No. 92 of 1938-39
are relied on as barring the plea that
the decree and sale in OS. No. 100 of
1919-20 are not collusive, not on the
ground of res judicata or estoppel but
on the principle that a person cannot
both approbate and reprobate. It is
immaterial that the present appellants
were not parties thereto, and the
decision in Verschures Creameries Ltd.
v. Hull & Netherlands Steamship Co.
Ltd. [(1921) 2 KB 608 (CA)] , and in
particular, the observations of Scrutton,
LJ., at p. 611 were quoted in support
of this position. There, the facts were
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that an agent delivered goods to the
customer contrary to the instructions of
the principal, who thereafter filed a
suit against the purchaser for price of
goods and obtained a decree.
Not having obtained satisfaction, the
principal next filed a suit against the
agent for damages on the ground of
negligence and breach of duty. It was
held that such an action was barred.
The ground of the decision is that
when on the same facts, a person has
the right to claim one of two reliefs
and with full knowledge he elects to
claim one and obtains it, it is not
open to him thereafter to go back on
his election and claim the alternative
relief. The principle was thus stated by
Bankes, L.J. : (Verschures Creameries
Ltd. case [(1921) 2 KB 608 (CA)] , KB
p. 611)
... Having elected to treat the delivery
to him as an authorised delivery they
cannot treat the same act as a
misdelivery. To do so would be to
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approbate and reprobate the same act.
The observations of Scrutton, L.J. on which
the appellants rely are as follows :
(Verschures Creameries Ltd. case [(1921) 2
KB 608 (CA)], KB pp. 611-12)
... A plaintiff is not permitted to
"approbate and reprobate". The phrase
is apparently borrowed from the Scotch
law, where it is used to express the
principle embodied in our doctrine of
election - namely, that no party can
accept and reject the same instrument :
Ker v. Wauchope [(1819) 1 Bligh PC 1
at p. 21 : 4 ER 1 at p. 8] : Douglas-
Menzies v. Umphelby [1908 AC 224 at
p. 232 (PC)]. The doctrine of election is
not however confined to instruments. A
person cannot say at one time that a
transaction is valid and thereby obtain
some advantage, to which he could only
be entitled on the footing that it is
valid, and then turn round and say it
is void for the purpose of securing some
other advantage. That is to approbate
and reprobate the transaction.
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It is clear from the above observations that
the maxim that a person cannot "approbate
and reprobate" is only one application of the
doctrine of election, and that its operation
must be confined to reliefs claimed in respect
of the same transaction and to the persons
who are parties thereto. The law is thus
stated in Halsbury's Laws of England, Vol.
XIII, p. 464, para 512 :
On the principle that a person may
not approbate and reprobate, a species
of estoppel has arisen which seems to
be intermediate between estoppel by
record and estoppel in pais, and may
conveniently be referred to here. Thus
a party cannot, after taking advantage
under an order (e.g. payment of costs),
be heard to say that it is invalid and
ask to set it aside, or to set up to
the prejudice of persons who have
relied upon it a case inconsistent with
that upon which it was founded; nor
will he be allowed to go behind an
order made in ignorance of the true
facts to the prejudice of third parties
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who have acted on it.
27.2. State of Punjab v. Dhanjit Singh
Sandhu [(2014) 15 SCC 144] : (SCC pp.
15354, paras 22-23 & 25-26)
"22. The doctrine of "approbate and
reprobate" is only a species of
estoppel, it implies only to the conduct
of parties. As in the case of estoppel
it cannot operate against the
provisions of a statute. (Vide CIT v.
MR. P. Firm Muar [AIR 1965 SC
1216].)
23. It is settled proposition of law
that once an order has been passed, it
is complied with, accepted by the
other party and derived the benefit
out of it, he cannot challenge it on
any ground. (Vide Maharashtra SRTC
v. Balwant Regular Motor Service
[AIR 1969 SC 329] ). In R.N. Gosain
v. Yashpal Dhir [(1992) 4 SCC 683]
this Court has observed as under :
( R.N. Gosain case [(1992) 4 SCC
683], SCC pp. 687-88, para 10)
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'10. Law does not permit a
person to both approbate and
reprobate. This principle is based
on the doctrine of election which
postulates that no party can
accept and reject the same
instrument and that a person
cannot say at one time that a
transaction is valid and thereby
obtain some advantage, to which
he could only be entitled on the
footing that it is valid, and then
turn round and say it is void for
the purpose of securing some
other advantage.'
***
25. The Supreme Court in Rajasthan
State Industrial Development &
Investment Corpn. v. Diamond & Gem
Development Corpn. Ltd. [(2013) 5
SCC 470 : (2013) 3 SCC (Civ) 153],
made an observation that a party
cannot be permitted to "blow hot and
cold", "fast and loose" or "approbate
and reprobate". Where one knowingly
accepts the benefits of a contract or
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conveyance or an order, is estopped to
deny the validity or binding effect on
him of such contract or conveyance or
order. This rule is applied to do
equity, however, it must not be
applied in a manner as to violate the
principles of right and good conscience.
26. It is evident that the doctrine of
election is based on the rule of
estoppel, the principle that one cannot
approbate and reprobate is inherent in
it. The doctrine of estoppel by election
is one among the species of estoppel
in pais (or equitable estoppel), which
is a rule of equity. By this law, a
person may be precluded, by way of
his actions, or conduct, or silence
when he has to speak, from asserting
a right which he would have
otherwise had."
27.3. Rajasthan State Industrial
Development & Investment Corpn. v.
Diamond & Gem Development Corpn. Ltd.
[(2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153]
: (SCC pp. 480-81, paras 15-16)
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"I. Approbate and reprobate
15. A party cannot be permitted to
"blow hot-blow cold", "fast and loose"
or "approbate and reprobate". Where
one knowingly accepts the benefits of a
contract, or conveyance, or of an order,
he is estopped from denying the
validity of, or the binding effect of
such contract, or conveyance, or order
upon himself. This rule is applied to
ensure equity, however, it must not be
applied in such a manner so as to
violate the principles of what is right
and of good conscience. [Vide Nagubai
Ammal v. B. Shama Rao [1956 SCR
451 : AIR 1956 SC 593], CIT v. V.
MR. P. Firm Muar [ AIR 1965 SC
1216], Ramesh Chandra Sankla v.
Vikram Cement [(2008) 14 SCC 58 :
(2009) 1 SCC (L&S) 706], Pradeep Oil
Corpn. v. MCD [(2011) 5 SCC 270 :
(2011) 2 SCC (Civ) 712], Cauvery
Coffee Traders v. Hornor Resources
(International) Co. Ltd. [(2011) 10 SCC
420 : (2012) 3 SCC (Civ) 685] and V.
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Chandrasekaran v. Administrative
Officer [(2012) 12 SCC 133 : (2013) 2
SCC (Civ) 136 : (2013) 4 SCC (Cri)
587 : (2013) 3 SCC (L&S) 416].
16. Thus, it is evident that the
doctrine of election is based on the
rule of estoppel-the principle that one
cannot approbate and reprobate is
inherent in it. The doctrine of estoppel
by election is one among the species of
estoppel in pais (or equitable estoppel),
which is a rule of equity. By this law,
a person may be precluded, by way of
his actions, or conduct, or silence when
it is his duty to speak, from asserting
a right which he would have otherwise
had." (emphasis supplied)"
13. Further, it is required to be noted here that the
decision of this Court rendered in Special Civil Application
No.14370 of 2011, on which, the petitioner relies upon and
harps on it, would not be applicable to the petitioner, since
there is no reference regarding G.R. dated 14.08.1998. In the
present case, the respondent - Corporation has, on the basis
of the said G.R. dated 14.08.1998, by which the Government
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has modified that G.R. dated 16.04.1998, passed the
impugned order. At this stage, it would be fruitful to refer to
the averments taken by the respondent - Corporation in the
affidavit in reply, more particularly paras : 5 to 7 thereof,
which read as under.
"5. The respondent humbly submits that at
a later point of time it came to light that
an employee in the pay scale of Rs.5500-
9000 was as such entitled to Rs.6500-10500
as first higher pay scale as per the G.R.
dated 14.08.1998 and copies of Resolution as
well as Annexure / Schedule are annexed
herewith and marked as Annexure-B
collectively. It is pertinent to note that the
same were issued after implementation of
the recommendation of 5th Pay Commission
with effect from 01.01.1996. The respondent
craves leave to add that even Resolution
dated 16.08.1994 passed on pay scale of 4 th
Pay Commission provided that the first
higher pay scale would be Rs.2000-3500
against the pay scale of Rs.1640-2900 and a
copy of Schedule is annexed herewith and
marked as Annexure-C.
6. The respondent humbly submits that
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as soon as this error came to the notice of
the authority in the case of present
petitioner as well as other employees, the
issue was examined thoroughly and it was
decided to re-fix the pay scale of the
petitioner and others and accordingly through
order dated 28.10.2010 (sic. 28.10.2017) the
petitioner is placed in the pay scale of
Rs.6500-10500 instead of Rs.8000-13500 and
a copy of the order is annexed herewith and
marked as Annexure-D. The respondent
submits that a recovery of excess payment
was also ordered from the arrears payable to
the concerned employees on implementation
of 6th Pay Commission recommendation and a
copy of order is annexed herewith and
marked as Annexure-E.
7. The respondent submits that said order
was implemented immediately and a recovery
of Rs.1,39,625/- was made from the arrears
payable to the petitioner on revision of pay
as per the recommendation of 6 th Pay
Commission. It is stated that the petitioner
herein is rightly allowed the authority to
recover the said amount at the relevant
point of time and never objected till the
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total recovery is made upto December, 2016.
In other words, the petitioner who was fully
aware about the error committed by the
authority rightly allowed a recovery."
14. It is noted that there is no doubt that the
petitioner is not entitled to the first higher pay scale in the
post of Senior Auditor. Therefore, the respondent -
Corporation has rightly granted the first higher pay scale to
the petitioner and that too as per the Government
Resolutions dated 16.08.1994 and 14.08.1998. Therefore, this
Court finds that there is no ambiguity in the impugned order
passed by the respondent - Corporation.
15. Further, it is noted that this Court has, while
admitting the matter vide order dated 23.06.2017, not granted
any interim relief qua the recovery as well as qua the re-
fixation of higher pay scale of Rs.8000-13500 to the
petitioner.
16. There cannot be any dispute with regard to the
law enunciated in the decisions of the Hon'ble Apex Court as
well as of this Court relied upon by the learned advocate for
the petitioner, however, it cannot be helpful to the petitioner
any further in view of the facts and circumstances of the
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present case. The present case does not fall within the
purview of these decisions with such facts. Therefore, the
present petitioner deserves to be dismissed as meritless.
17. In view of above and under the circumstances, the
action of the respondent - Corporation is just and proper.
There is no illegality committed by the respondent -
Corporation in passing the impugned order. No fundamental
rights guaranteed under Articles 14 and 16 of the
Constitution of India have been violated by the respondent -
Corporation. The respondent - Corporation has consequently
rightly recovered the amount paid in excess to the petitioner
inadvertently, which is even otherwise a public exchequer.
There is no merit in the present petition. This petition,
therefore, needs to be dismissed on the ground of delay and
laches as well as on merit also.
18. For the reasons recorded above, the present
petition is dismissed. Rule is discharged. No order as to
costs. Interim relief, if any, stands vacated.
(SANDEEP N. BHATT,J)
M.H. DAVE
