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2009 DIGILAW 413 (GUJ)

J. H. Champavat v. State of Gujarat

2009-06-24

K.M.THAKER, MOHIT S.SHAH

body2009
JUDGMENT : Mohit S. Shah, J. The petitioner is a Judicial Officer holding the post of a Judge in the Presidency Small Causes Court at Ahmedabad. The petitioner has challenged the communication dated 3rd January, 2009 (Annexure-G) and the order dated 3rd June, 2004 (Annexure-E) for recovery of the amounts, which were paid to the petitioner in the past, on the ground that excess amounts were paid to the petitioner on account of erroneous fixation of the petitioner's pay. 2. Mr. Paresh Upadhayay, learned counsel for the petitioner, submits that the fixation of the petitioner's pay in the past was rightly done by the Principal Judge, City Civil Court, Ahmedabad and the view of respondent Nos.2 to 4 that the petitioner's pay was required to be fixed at a lower amount is contrary to law but since after about one year, the petitioner will be attaining the age of superannuation i.e. on 20th April, 2010, raising any controversy about correctness or otherwise of the re-fixation order will unnecessarily delay the preparation of his pension papers and for that reason alone, the petitioner has not challenged the decision of the respondent Nos.2 to 4 for re-fixation of the petitioner's pay. Mr. Upadhayay further submits that the petitioner has, therefore, confined his challenge to the order of recovery proposed to be made by the respondents. 3. The petitioner joined the State Government service as Stenographer Grade-I (Private Secretary) in the City Civil Court, Ahmedabad on 18th March, 1978. Upon completion of 9 year's service, the petitioner was granted the first higher grade scale on 1 st June, 1987 as per the Government scheme prevailing at the relevant time. Thereafter, the petitioner was selected and appointed as Civil Judge (Junior Division) by Notification dated 6th December, 1995 and his posting order was issued on 20th December, 1995 and the petitioner joined as Civil Judge (Junior Division) on 16th January, 1996. In the year 1998, the petitioner's pay came to be revised on the basis of the Gujarat Civil Services (Revision of Pay) Rules; 1998 which came into effect from 1st January, 1996 and the petitioner's pay was fixed at Rs. 11,300/- as on 16th January, 1996 in the scale of Rs. 8000-13500. This was done by order dated 8th May, 1998 passed by the learned District Judge, Kheda at Nadiad. 11,300/- as on 16th January, 1996 in the scale of Rs. 8000-13500. This was done by order dated 8th May, 1998 passed by the learned District Judge, Kheda at Nadiad. For making this fixation, the learned District Judge considered that the duties and responsibilities of the cadre of Civil Judge (Junior Division) and J.M.F.C. are higher than the duties and responsibilities of the cadre of Private Secretary (English Stenographer). Hence, the petitioner's pay was fixed at Rs. 11,300/- in the revised pay scale of Rs. 8000-275-13500 w.e.f. 16th January, 1996 as per Rule 41(a)(i) of the Bombay Civil Services Rules; 1959 which provided for granting additional increment to an officer appointed on the post carrying higher duties and responsibilities. 4. On the basis of the aforesaid pay fixation, made by order dated 8th May, 1998, the petitioner's pay was also fixed for the subsequent years. The Examiner, Local Fund Accounts in the office of Director of Accounts & Treasuries - respondent No.3 herein and the District Assistant Examiner, Local Fund Accounts - respondent No.4 herein, however, took the view in the year 2004 that the post of Civil Judge (Junior Division) could not be considered as a post with duties and responsibilities higher than the duties and responsibilities of the post of Stenographer previously held by the petitioner and therefore, while fixing his pay as on 16th January, 1996, the petitioner could not have been given the benefit of additional increment. This view was reflected in the communication dated 30th April, 2004 of respondent No.4 to the Registrar, City Civil Court, Ahmedabad. Therefore, the Principal Judge, City Civil Court, Ahmedabad passed the impugned order dated 3rd June, 2004 re-fixing the petitioner's pay at Rs. 11,050/- w.e.f. 16th January, 1996 and consequent reduction in the pay for the subsequent years. It was mentioned in the impugned order that:- "(3) Pay & Allowances drawn for the period from 16.1.1996 & onwards as per office order No.85/1998 dated 8.5.1998 of Dist. Court, Nadiad and subsequent office order No.204/1999 dated 18.6.1999 of City Civil Court Ahmedabad should be recovered/adjusted from the payment of arrears from 16.1.1996 to 31.5.2004." 5. It was mentioned in the impugned order that:- "(3) Pay & Allowances drawn for the period from 16.1.1996 & onwards as per office order No.85/1998 dated 8.5.1998 of Dist. Court, Nadiad and subsequent office order No.204/1999 dated 18.6.1999 of City Civil Court Ahmedabad should be recovered/adjusted from the payment of arrears from 16.1.1996 to 31.5.2004." 5. After the said order was passed on 3rd June, 2004, the petitioner addressed letters to the Principal Judge, City Civil Court, Ahmedabad inquiring as to how much amount was proposed to be recovered from the petitioner so that the recovery may be challenged by the petitioner. The petitioner also referred to Rule 28(2) of the Gujarat Civil Services (Pay) Rules; 2002 and reference was also made to the various judgments of this court. Ultimately, by communication dated 3rd January, 2009 from the Registrar, City Civil Court, Ahmedabad the petitioner was informed about the exact amount proposed to be recovered from the petitioner with a detailed break-up for each month from July, 1996 upto May, 2004. As per the said detailed calculations, the amount proposed to be recovered was indicated as Rs. 45,567/-. On receiving this communication, the petitioner has filed present petition. 6. As already indicated earlier, the petitioner is not challenging the order dated 3rd April, 2004 in so far as the petitioner's pay is refixed at Rs. 11,050/- as on 16th January, 1996 as against Rs. 11,300/- which was earlier fixed as per the order dated 8th May, 1998 (Annexure-B). 7. Mr. Upadhyay, learned counsel for the petitioner, has submitted that the petitioner's pay was fixed at Rs. 11,300/- by order dated 8th May, 1998 (Annexure-B to the petition); that the post of Civil Judge (Junior Division) carried higher duties and responsibility as compared to the duties and responsibilities of the Stenographer, which post the petitioner was holding. It is submitted that the said fixation was done by the learned District Judge, Kheda at Nadiad. The petitioner had not made any misrepresentation nor the petitioner had suppressed any fact at the relevant time. Strong reliance is placed on the decision of the Division Bench of this court rendered on 4th April, 2001 in Letters Patent Appeal No.578 of 2000 [I.C. Patel v. Gujarat Housing Board] and also on the decision of the Three Judge Bench of the Apex Court in P.H. Reddy & Ors. Strong reliance is placed on the decision of the Division Bench of this court rendered on 4th April, 2001 in Letters Patent Appeal No.578 of 2000 [I.C. Patel v. Gujarat Housing Board] and also on the decision of the Three Judge Bench of the Apex Court in P.H. Reddy & Ors. v. N.T.R.D. & Ors., 2002 (2) Services Law Reporter 694 in support of the contention that even if the appropriate authority had erroneously fixed the salary of an officer, subsequently even if the salary could be correctly re-fixed, the officer should not be asked to repay the excess pay drawn when there was no fault on the part of the petitioner officer. Mr. Upadhayay has further relied on the provisions of Rule 57A sub-rule (ii) of the Bombay Civil Services Rules; 1959 and Rule 28(2) of the Gujarat Civil Services (Pay) Rules; 2002. 8. Mr. Pardiwala, learned standing counsel for the High Court on the administrative side and for the Principal Judge, City Civil Court, Ahmedabad, has submitted that in view of the aforesaid statutory provisions and judicial pronouncements, appropriate orders may be passed. 9. Mr. Nikunt Raval, learned AGP for the State of Gujarat and auditors in the office of Director of Accounts & Treasuries (i.e. respondent Nos.1 to 4), has submitted that since the re-fixation by the impugned order dated 3rd June, 2004 is not challenged, the respondents would be justified in ordering recovery of the excess amounts paid in the past. In reply to a specific query from the court as to whether the petitioner was at fault or was responsible for the so-called erroneous fixation of the pay in the year 1998 both the learned AGP and Mr. Pardiwala fairly stated that no such fault or misrepresentation could be attributed to the petitioner. 10. Having heard the learned counsel for the parties, this Court finds considerable substance in the submission made on behalf of the petitioner that even if the fixation of the petitioner's pay in the year 1998 was erroneous, since the petitioner himself was not at fault nor had he made any misrepresentation, the so-called excess amount paid to the petitioner for the period between 16th January, 1996 and May, 2004 cannot be permitted to be recovered. Rule 57(A)(ii) of the Bombay Civil Services Rules, 1959 and Rule 28 of the Gujarat Civil Services (Pay) Rules; 2002 are in similar terms. Rule 57(A)(ii) of the Bombay Civil Services Rules, 1959 and Rule 28 of the Gujarat Civil Services (Pay) Rules; 2002 are in similar terms. It would, therefore, suffice to quote Rule 28 of the Gujarat Civil Services (Pay) Rules; 2002, which reads as under :- "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). 11. It is clear from the above Rules that where the erroneous fixation of pay was done without any false information having been furnished by the concerned employee, the employee shall not be called upon to refund the resultant amount of overpayment. Similar legal principle is enunciated by the Hon'ble Supreme Court in P.H. Reddy & Ors. v. N.T.R.D. & Ors., 2002 (2) Services Law Reporter 694 wherein a Three Judge Bench of the Hon'ble Supreme Court has held that even where the order of re-fixation done by the appropriate authority does not require any interference, but the employees, who had been in receipt of a higher amount on account of erroneous fixation by the authority, should not be asked to re-pay the excess pay drawn. The Apex Court set aside that part of the order of the authority by which such recovery was sought to be made. 12. The Apex Court set aside that part of the order of the authority by which such recovery was sought to be made. 12. The same principle was also laid down by another Division Bench of this Court in the decision dated 4th April, 2001 in Letters Patent Appeal No. 578 of 2000 [I.C. Patel v. Gujarat Housing Board]. This Court held that recovery of the excess amount made to the officer for no fault on his part appeared to be wholly unjustified. 13. In view of the aforesaid statutory provisions and the above judicial pronouncements, we have no hesitation in allowing the petition. We accordingly quash and set aside sub-paragraph (3) of paragraph 5 of the Office Order No. 195/2004 dated 3rd June, 2004 of the Principal Judge, City Civil Court, Ahmedabad (Annexure-E) and also the impugned communication dated 3rd January, 2009 (Annexure-G) seeking to make the recovery of the excess amount paid to the petitioner on the basis of the pay fixation, which was made by order dated 8th May, 1998 by the learned District Judge, Kheda at Nadiad (Annexure-B to the petition). Rule is made absolute to the above extent. Petition allowed.