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2010 DIGILAW 38 (GUJ)

DILIPKUMAR HARILAL BHAVSAR v. STATE OF GUJARAT

2010-01-28

D.H.WAGHELA

body2010
ORDER 1. Learned AGP, Mr. Shivang Shukla has appeared on advance copy and the petition was taken up for final hearing. The petitioner has invoked Articles 14 and 226 of the Constitution upon being aggrieved by the order for recovery of excess payment made to the petitioner since April 2000 on account of the advance increments, which were withdrawn by resolution dated 26.4.2000. There is no dispute about the facts that the petitioner was granted advance increments on account of his higher qualification and such orders granting advance increments were cancelled by Resolution dated 26.4.2000 (Annexure-B), after examining the scheme of advance increments and upon revised pay structure coming into operation. While making the resolution dated 26.4.2000, the State Government also directed not to recover any amounts, which were already paid till then on account of grant of advance increments. 2. There is no manner of doubt that the petitioner, a highly qualified medical doctor, appointed on Class-II post could have misunderstood the implications of resolution dated 26.4.2000. However, due to reasons which are not clear, the petitioner was paid wages disregarding the aforesaid Government Resolution and the matter came to a head when it was referred to the highest office of Commissioner, Medical Services and Medical Education. It is unfortunate that the department in which the petitioner was serving took eight years in implementing aforesaid resolution on account of some confusion or manipulation, but such sustained default on the part of the administration cannot confer any right upon the petitioner, who could not be ignorant about his rights and change in the pay structure. He was in fact informed in writing by order dated 25.07.2000 (Annexure-C to the petition) about requisite process of recovery. Under such circumstances, learned counsel, Mr.Majmudar resorted to the technical plea of petitioner having not been given an opportunity of being heard and the difficulties, which the petitioner may have to face if recovery were to be enforced. Therefore, he was called upon to explain the prejudice caused to the petitioner on account of alleged absence of opportunity of being heard. However, he only submitted that the petitioner was entitled to retain the benefit, which was allowed to him without any fault or misrepresentation on his part. 3. Therefore, he was called upon to explain the prejudice caused to the petitioner on account of alleged absence of opportunity of being heard. However, he only submitted that the petitioner was entitled to retain the benefit, which was allowed to him without any fault or misrepresentation on his part. 3. Learned counsel, Mr.Majmudar and learned AGP, Mr.Shukla both relied upon the observations of three Judge Bench of the Supreme Court in Syed Abdul Qadir and Others v. State of Bihar and Others [ (2009) 3 SCC 475 ], wherein pertinent observations read as under: The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. 4. Having regard to the facts stated in brief herein above, the status and qualification of the petitioner and the overall marginal impact on his income by recovery of the payments made towards advance increments, the petitioner is not entitled to any relief in equity or to the benefit of judicial discretion. No prejudice having been caused to the petitioner on account of alleged violation of principles of natural justice and the petitioner having accepted and retained the benefit to which he was not entitled, judicial discretion cannot be exercised in his favour. The salutary principle invoked in several judgments of the Apex Court and this Court to prevent recovery of amounts on re-fixation of wages is also incorporated in Rule 28 of the Gujarat Civil Services (Pay) Rules, 2002 and fully complied in the aforesaid Resolution dated 26.4.2000 and no further relief is due, in equity or in law, to the petitioner. Therefore, the petition is summarily dismissed.