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2013 DIGILAW 123 (GUJ)

S. N. Sinha v. Chief Secretary Govt. of Gujarat

2013-02-28

PARESH UPADHYAY

body2013
ORDER : Paresh Upadhyay, J. By way of this petition, challenge is made to the order of the respondent dated 16.02.2002, asking the petitioner to deposit an amount of Rs.1,39,212/- back to the Government exchequer, which the petitioner has drawn in excess of his entitlement, which pertains to the period when the petitioner held the post of the President of the Gujarat Civil Services Tribunal. 2. The petitioner has appeared in person. It is the case of the petitioner that the impugned order is in gross violation of principle of natural justice, it is in conflict with the provisions contained in Rule 57A of the Bombay Civil Services Rules, 1959 and is also against the settled position of law and therefore the same may be quashed and set aside. The petitioner has also relied on the following decisions in support of his case. (i) 1985 (1)SLR 144 in case of S.H. Shirekar v. Union of India (Guj.), (ii) (2010) 14 SCC 323 in case of Yogeshwar Prasad and others v. National Institute of Education Planning and Administration and others, (iii) 1995 Supp (1) SCC 18, in case of Sahib Ram v. State of Haryana and others, (iv) (2009) 3 SCC 117 , in case of State of Bihar and others v. Pandey Jagdishwar Prasad, (v) (1994) 2 SCC 521 in case of Shyam Babu Verma and others v. Union of India and others, and (vi) decision dated 04.04.2001 rendered by Division Bench in Letters Patent Appeal No. 578 of 2000 in Special Civil Application No. 2196 of 1999. 3. This petition is contested by the authorities by filing affidavit-in-reply dated 12.08.2002, the thrust of which is that the action of the authorities is legal and the petitioner is not entitled to any relief. 4. Having heard the petitioner, who is also a practising advocate in this Court, and having gone through the record, the following facts emerge. 4.1 The petitioner had joined the service as an Indian Police Service Officer and in due course, he had reached the highest position in the State Police Force and he retired as Director General and Inspector General of Police, Gujarat State on 31.01.1996, after office hours i.e. with effect from 01.02.1996. 4.2 After his retirement, the petitioner was appointed as the President of the Gujarat Civil Services Tribunal, vide Government Notification dated 11.03.1996. The said appointment was for a period of three years. 4.2 After his retirement, the petitioner was appointed as the President of the Gujarat Civil Services Tribunal, vide Government Notification dated 11.03.1996. The said appointment was for a period of three years. The petitioner, as the President of the Gujarat Civil Services Tribunal was entitled to receive emoluments, on 'LAST PAY DRAWN MINUS PENSION' basis. The petitioner had held the post of the President of the Tribunal from 12.03.1996 to 11.03.1999, during which he was entitled to and had drawn emoluments on LAST PAY DRAWN MINUS PENSION basis, as recorded above. 4.3 At the time of retirement i.e. as on 31.01.1996 the pay of the petitioner was Rs.7900/-, then prevailing. 4.4 The pension of the petitioner on that pay was fixed at Rs.3910/-. 4.5 Thus, the petitioner was entitled to receive an amount equivalent to LAST PAY DRAWN i.e. Rs.7900/- minus PENSION i.e. Rs.3910/-, which comes to Rs.3990/-, per month. 4.6 Petitioner started drawing his pay as the President of the Tribunal as above. 4.7 In the year 1998 there was General Revision of Pay. The said revision was with retrospective effect of 01.01.1996. 4.8 The petitioner was in service as on 01.01.1996, since he retired on 31.01.1996 after office hours. His last pay which was Rs.7900 came to be revised as Rs.24700/-. 4.9 As pay scales got revised with effect from 01.01.1996, pension also came to be revised with retrospective effect of 01.01.1996. The pension of the petitioner which was Rs.3910/- got revised to Rs.8158/-. 4.10 Thus, now the petitioner was entitled to receive an amount equivalent to LAST PAY DRAWN i.e. Rs.24700/- minus PENSION i.e. Rs.8158/-, which comes to Rs.16,542/-. This was effective from the date of appointment of the petitioner as the President of the Tribunal i.e. 12.03.1996. 4.11 Though this was effective from the year 1996, actually it was revised in the year 1998, therefore the difference was also paid to the petitioner. Thereafter, until the petitioner demitted the office of the President of the Tribunal, i.e. till 11.03.1999 he was paid his pay like this. 4.12 Thereafter, the pension of the petitioner got further revised and the Director of Pension and Provident Fund vide order dated 10.06.1999 revised the pension of the petitioner from Rs.8,158/- to Rs.12,025/- per month. Even this revision of pension was with retrospective effect of 01.02.1996, i.e. since the date of retirement of the petitioner. 4.12 Thereafter, the pension of the petitioner got further revised and the Director of Pension and Provident Fund vide order dated 10.06.1999 revised the pension of the petitioner from Rs.8,158/- to Rs.12,025/- per month. Even this revision of pension was with retrospective effect of 01.02.1996, i.e. since the date of retirement of the petitioner. The arrears of pension is also paid by the treasury authorities to the petitioner which he has accepted also, and there is no dispute in this regard. 4.13 Thus, the petitioner was entitled to receive an amount equivalent to LAST PAY DRAWN i.e. Rs.24700/- minus PENSION i.e. Rs.12025/- (and not Rs.8158/-) which would come to Rs.12675/- (and not Rs.16,542/-) per month. The difference is of Rs.3867/- per month. 4.14 The petitioner enjoyed the full term of three years and thus in effect, the petitioner has received Rs.1,39,212/-, in excess of his entitlement, being Rs.3867/- X 36 months. It is this amount of Rs.1,39,212/-, which the Government has asked the petitioner to pay back to the Government exchequer, which the petitioner claims to be illegal and arbitrary. 4.15 The point for adjudication before this Court therefore is as to whether the action of the authorities of asking the petitioner to refund the above amount to the Government is illegal or arbitrary in any manner as is contended by the petitioner. 5. In view of the above undisputed factual background, the contentions of the petitioner are examined as under. 5.1 The first contention of the petitioner is with regard to violation of Rule 57A of The Bombay Civil Services Rules, 1959. The relevant portion of the said Rule, which is quoted in the petition, reads as under: "57-A(i) Notwithstanding the provisions contained in these rules, the pay of a Government servant whose promotion or appointment to a post is found to be or to have been erroneous on the basis of facts i.e. incorrect seniority, failure to apply any relevant rules or orders correctly, shall be regulated in accordance with any general or special orders issued by the Government in this behalf. (ii) When any rule or order regulating pay is made with retrospective effect, the pay of a Government servant affected by such order or rule, shall be fixed notionally as if the rule, order were applicable in his case but the Government servant concerned shall not be called upon to refund the resultant amount of overpayment on account of pay and allowances". 5.2 The facts recorded above are quite clear that the appointment of the petitioner as the President of the Tribunal is not found to be or was erroneous on the basis of any fact i.e. incorrect seniority, failure to apply any relevant rules or orders correctly. Further the Government has neither amended any rule nor has corrected any order regulating the pay of the petitioner with retrospective effect and therefore the petitioner is not justified in taking support from this Rule to evade the refund of the excess amount drawn by him, at the time of revision of pension after his retirement. In the affidavit-in-reply filed on behalf of the Government, it is contended that Rule 57A of BCSR in this facts situation will have no applicability and I see no reason not to accept that defense. This contention of the petitioner is therefore rejected. 5.3 Coming to the next contention of violation of principles of natural justice, I find that the representation of the petitioner dated 08.05.2002 is responded by the Government on 24.06.2002 and this petition is filed on 11.07.2002. In my view, considering the totality of facts, which are recorded above, even a gentle indication by the Government to the petitioner about he having received excess amount than his entitlement, should have sufficed. In any case, after the order dated 16.02.2002 asking the petitioner to return the money drawn by him in excess, the petitioner ought to have returned it, which he did not do and made representation dated 08.05.2002 as referred above which is already responded by the Government on 24.06.2002 as recorded above. Considering the totality, I find that in this peculiar fact situation, even the post decisional consideration of representation would not render the action of the Government illegal. Further, even in this petition, it is not the case of the petitioner that he is legally entitled to retain this money. He also does not plead, financial hardship and is asking for installments. Further, even in this petition, it is not the case of the petitioner that he is legally entitled to retain this money. He also does not plead, financial hardship and is asking for installments. Under these circumstances, at this stage, to ask the authority to hear the petitioner would be an exercise in futility and therefore, in this peculiar factual back-ground, in my view, the petitioner is not entitled to claim relief even on this ground. 5.4 So far the decisions, including that of Hon'ble the Supreme Court of India, as referred above, relied on by the petitioner is concerned, I record that there cannot be any dispute with regard to the propositions of law enunciated in those judgments but in my view, none of the said authorities would take the case of the petitioner any further, in the facts recorded above. 5.5 Petitioner has made much grievance about the language of the affidavit-in-reply and has also contended that, that also shows the mind set of the authorities against the petitioner. Petitioner has taken this Court through the entire affidavit-in-reply and I see no reason to accept the contention of the petitioner. This contention also stands rejected, and further in my view, even otherwise in the facts as recorded above, it does not take the case of the petitioner any further, on merits. 6. Thus, none of the legal contentions raised, takes the case of the petitioner any further and the petitioner cannot be granted any relief. I also find that considering the totality of facts as recorded above, the petitioner is not entitled to any relief. Petitioner was entitled to last pay drawn minus pension. His last pay got revised with retrospective effect. He received his emoluments as last revised pay minus pre-revised/half revised pension. The subsequent further revision of pension, which was after the petitioner demitted the office of the President of the Tribunal, was with retrospective effect, for which even the arrears is also received by the petitioner, which is attempted to be retained by him, creating a situation where he claimed his emoluments as last revised pay minus pre-revised/half revised pension and separately he got and has retained arrears of further revision of pension from the Government and on being asked by the Government to refund that amount, it is challenged in this petition. The petitioner had led the police force of the State, not only that, he had headed the grievance redressal forum of the State, at which the employees of the whole State looks at with dignity and high hopes. Least it is observed that the petitioner could have responded to this issue in more dignified manner, which would have befitted the positions he had held. Considering the fact that the petitioner is a senior citizen, I restrain from imposing cost. 7. For the reasons recorded above, this petition is dismissed. Since the petitioner was protected during pendency of this petition, said protection is ordered to be continued for a period of two months from today. Rule is discharged. Interim relief stands vacated, subject to its continuance for a period of two months, as ordered above. The petitioner being a senior citizen, no order as to costs. Petition dismissed.