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2013 DIGILAW 152 (GUJ)

H. M. Manani v. State of Gujarat

2013-03-08

PARESH UPADHYAY

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JUDGMENT : Paresh Upadhyay, J. The petitioner retired as Section Officer, on attaining the age of superannuation, from the service of the respondent Saurashtra University, in November, 1997. At the time of retirement of the petitioner, a dispute was raised by the audit authorities of the Government, with regard to his pay fixation of the year 1981, and consequently, his pension case was not finalised. After waiting for couple of years, the petitioner approached this Court invoking Article 226 of the Constitution of India, raising above grievances, which is the subject matter of this petition. 2. Heard Mr. Biren Vaishnav, learned advocate for the petitioner, Mr. Rashesh Rindani, learned Assistant Government Pleader for the respondent State authorities and Mr. Avinash Thacker, learned advocate for respondent Saurashtra University. 3. Having heard learned counsel for the respective parties and having gone through the record, including various affidavit in replies filed on behalf of the authorities from time to time, this Court finds that, the root cause of the entire controversy is that the Government has objection, in principle, against the decision of the respondent University dated 29.01.1981, whereby the pay scales of employees of the University were revised. It is the say of the authorities of the Government that the respondent University did not have power, at the relevant time, to take that decision. The audit authorities of the Government have therefore not approved the said pay fixation of the employees of the respondent University, including the petitioner. 4.1. So far the facts regarding the petitioner are concerned, it is stated that the petitioner had initially joined the service as Junior Clerk on 15.06.1967. Thereafter, he was promoted as Senior Clerk on 13.06.1970, as Head Clerk on 24.07.1972, as Section Officer on 20.01.1987 and he retired as Section Officer in November, 1997. 4.2. In the year 1981, the Saurashtra University found that, there was pay anomaly in the pay structure of its employees and therefore the pay scale of some of the cadres, including the cadre of Head Clerk got revised. The pay scale of the cadre of Head Clerk, which was Rs. 425800/- at the relevant time, was revised as Rs.500900/-. It is noted that the said revision was not qua the petitioner alone, but the same was general revision of pay of all the employees working in the respective cadres. The pay scale of the cadre of Head Clerk, which was Rs. 425800/- at the relevant time, was revised as Rs.500900/-. It is noted that the said revision was not qua the petitioner alone, but the same was general revision of pay of all the employees working in the respective cadres. The said decision of the University was taken by the Syndicate and was applied uniformly qua all the employees of the University in those cadres. Consequently, the pay of the petitioner, which was at the stage of Rs. 635/-in the pay scale of Rs. 425800/- as on 01.04.1981, was revised to the pay scale of Rs. 500900/- and the same was fixed at the stage of Rs. 700/-. 4.3. In the year 1986, general revision of pay was adopted by the Government, which was applied to all the employees, including of the respondent University. The pay scale of Rs. 425800/- got revised as Rs. 14002800/-. The pay scale of Rs. 500900/- got revised as Rs. 16402900/-. Since the petitioner was drawing the pay scale of Rs. 500900/- since 1981, his pay ought to have been revised to Rs. 16402900/-. For the purpose of this revision, the base was the stage of pay as on 31.12.1985. From this stage, the objection is raised by the authorities. It is contended by the State Authorities that, as on 01.01.1986, the pay of the petitioner will be fixed in the pay scale of Rs. 14002600/- and not Rs. 16402900/-. By doing so, the State Authorities in effect contend that, they do not approve the pay sale of Rs. 500900/- as on 31.12.1985 and it would be treated as if the petitioner was in the pay scale of Rs. 425800/-. The pay of the petitioner, as on 01.01.1986, from Government's view point was to be fixed at the stage of Rs. 2300/-in the pay scale of Rs. 14002600/-. It is the grievance of the petitioner that, by doing so, the State Authorities are nullifying the effect of general revision of pay which was adopted by the respondent University in the year 1981, which the University was competent to do and without interfering with the said decision of the University, the pay of the petitioner in his individual capacity, is not approved, which is illegal. 4.4. Thereafter the petitioner was promoted as Section Officer on 20.01.1987, in the pay scale of Rs. 4.4. Thereafter the petitioner was promoted as Section Officer on 20.01.1987, in the pay scale of Rs. 20003500/- and there is no dispute with regard to that pay scale. On completion of nine years service in that scale, i.e. with effect from January, 1996, the petitioner was entitled to the next higher pay scale, which was Rs. 22004000/-. Pursuant to the further general revision of pay with effect from 01.01.1996, the pay scale of Rs. 20003500/- came to be revised as Rs. 650010500/- and the pay scale of Rs. 22004000/- came to be revised as Rs. 800013500/-. Thus, at the time of retirement, the petitioner was working as Section Officer, the substantive pay scale of which was Rs. 650010500/- and he had got Rs. 800013500/- as his first higher grade scale, in which, he was drawing his pay at the stage of Rs. 11025/-. The case of the petitioner is that, his pension case should be finalised on the basis of this last pay drawn by him. Government has objection against it and that is the controversy in this petition. 4.5. The objection on the part of the audit authorities of the Government, as recorded above is that, the pay of the petitioner as on 01.01.1986 will be revised in the pay scale of Rs. 14002600/- and not in the pay scale of Rs. 16402900/-. Further, the stage of pay as on 01.01.1986 would not be Rs. 2480/-but would be Rs. 2300/-. Considering the further revision of pay, the net result is that, at the time of retirement, the stage of pay of the petitioner would be Rs. 10200/-according to audit authorities, and not Rs. 11025/-which the petitioner was actually drawing. The consequential objection is that, the period for which the petitioner had drawn this higher pay, which was as per the decision of the University, also needs to be recovered from the retirement dues of the petitioner. 4.6. In above factual background, the controversy in this petition centers around following two points : (i) For the purpose of finalisation of pension case of the petitioner, which pay should be accepted as the base. Is it Rs. 10200/-as projected by the audit authorities, or it is Rs. 11025/-, which the petitioner was actually drawing at the time of his retirement. (ii) Secondly, in the event it is held that Rs. 10200/- should be accepted as the base, and not Rs. Is it Rs. 10200/-as projected by the audit authorities, or it is Rs. 11025/-, which the petitioner was actually drawing at the time of his retirement. (ii) Secondly, in the event it is held that Rs. 10200/- should be accepted as the base, and not Rs. 11025/-, whether the authorities of the Government be permitted to recover the difference of the excess payment received by the petitioner, from his retirement dues. 5. To decide above points, firstly it will have to be ascertained as to whether, there was anything wrong with the decision of the respondent University of the year 1981 regarding pay scale of its employees. If the said decision is not found to be illegal in any manner, other questions may not be required to be gone into, but in the event the said decision is found to be illegal in any manner, then the question may crop up, as to what should be accepted as the pay of the petitioner, for the purpose of finalisation of his pension case and further, as to whether, recovery of excess payment can still be permitted from the retirement dues of the petitioner. 6.1. The respondent University has, by filing affidavit in reply dated 04.03.2013, placed on record some of the correspondence, which had taken place with the Government with regard to the decision of the Syndicate of the respondent University, as contained in its Resolution No.40 dated 29.01.1981, regarding revision of pay of its employees. The said decision of the respondent Saurashtra University, along with Office Order dated 23.03.1981, is on record as Annexures E and F. From the correspondence on record it transpires that, the exercise of power by the University under Section 20 of the Act with regard to emoluments of its employees was made subject to approval of the Government vide Notification dated 09.12.1981. Learned counsel for the petitioner, as well as the respondent University, both have contended that prior thereto the University was well within its power to take the said decision, and the same was required to be taken to remove the pay anomaly at the relevant time and was thus legal in all aspects. Learned counsel for the petitioner, as well as the respondent University, both have contended that prior thereto the University was well within its power to take the said decision, and the same was required to be taken to remove the pay anomaly at the relevant time and was thus legal in all aspects. In support of this contention, they both have relied on the decision of this Court in the case of Kanakray H. Dave v. Vice Chancellor, 2004(4) SLR 484 , (Special Civil Application No.3123 of 1988 dated 08.10.2003), which dealt with almost identical issue pertaining to the Gujarat University. It is not in dispute that the powers of all the Universities of the State are at par and there is no material distinction in that regard. In the said case of Kanakray Dave (supra), while dealing with Section 20 of the Gujarat University Act, this Court recorded that the University, prior to 09.12.1981, had power, interalia to fix the emoluments of its staff. The said decision of learned Single Judge was challenged by the State of Gujarat by preferring Letters Patent Appeal No.2571 of 2004 and the Division Bench of this Court, while dismissing the said appeal, held that, prior to 09.12.1981, the Universities had power to take decision with regard to emoluments of its staff on its own and Government did not have any say in that regard. 6.2. Learned counsel for the petitioner has also relied on the decision of this Court in case of Ramchandra Bhailal Sadiwala and Others v. Gujarat University and Another in Special Civil Application No.10369 of 2001, decided on 16.01.2003. By referring to the said decision, attention of this Court is drawn to the decision of the authorities of the Government dated 02.05.2001, which was taken in case of the employees of the Gujarat University, to regularise the said pay fixation. 6.3. Taking into consideration the reasoning recorded and finding arrived at by this Court, in the above referred judgments, I find that no exception can be made to the decision of the Syndicate of the respondent University, as contained in its Resolution No.40 dated 29.01.1981, regarding revision of pay of its employees. 7. 6.3. Taking into consideration the reasoning recorded and finding arrived at by this Court, in the above referred judgments, I find that no exception can be made to the decision of the Syndicate of the respondent University, as contained in its Resolution No.40 dated 29.01.1981, regarding revision of pay of its employees. 7. All the objections raised by the authorities of the Government, could hold the field, only if the above decision of the respondent University to revise the pay scale of its employees, was found to be illegal, in any manner. However, as held above, the said decision of the respondent University was not illegal in any manner. Under these circumstances, other consequential objections raised by the authorities of the Government would pale into insignificance and therefore, those aspects are not required to be gone into. It is recorded that, even otherwise, it would be unjust and improper for the authorities of the Government to withhold finalisation of pension case of an employee, raising objection with regard to decades old pay fixation. 8.1. For the reasons recorded above, the answer to the first point for adjudication as referred to in para 4.6 above is that, for the purpose of finalisation of pension case of the petitioner, Rs. 11025/-, which the petitioner was actually drawing at the time of his retirement, should be accepted as the base and not Rs. 10200/-as projected by the audit authorities of the Government. Respondents are required to be directed to finalise the pension case of the petitioner accordingly. 8.2. So far the answer to the second point for adjudication, as referred to in para 4.6 above, with regard to recovery is concerned, I find that, since on merits, it is held that there was no illegality in the decision of the University regarding pay revision of its employees in the year 1981, the question of recovery would not arise. Even otherwise, in view of the settled position of law that, since there was no misrepresentation or fraud on the part of the concerned employee, no recovery could have been permitted from the petitioner, much less from his retirement dues. Thus, even if the decision of the University, of revising the pay of its employees in the year 1981 was not to be upheld, then also, recovery from the retirement dues of the petitioner could not have been permitted. Thus, even if the decision of the University, of revising the pay of its employees in the year 1981 was not to be upheld, then also, recovery from the retirement dues of the petitioner could not have been permitted. At the best, liberty could have been reserved to the State Authorities to make recovery from the University and in turn to the University to make recovery from an erring officer, which is not the case here. Reliance placed by learned advocate for the petitioner on the decision of this Court in case of Ramchandra Bhailal Sadiwala (supra) as referred above and the decision of the Government impugned therein, will apply with full force in the facts of this case, for this purpose. Thus, on merits, the question of recovery does not arise and even otherwise on equity, as well as applying the principle of Rule 57A of the Bombay Civil Services Rules, so also the above referred decision of this Court, recovery could not have been permitted. 8.3. In conclusion, it is found and held that the petitioner is entitled to claim his retirement dues, considering Rs. 11025/-as his last pay drawn and he is not under any legal obligation to refund any amount from the emoluments he had drawn while he was in service. 9. For the reasons recorded above, this Court arrives at the judgment and passes the order as under : (i) The petitioner is entitled to claim his retirement dues on the basis of pay of Rs. 11025/-, which he was actually in receipt of, at the time of his retirement. The stand of the authorities of the Government that, the payment of retirement dues of the petitioner should be on the basis of Rs. 10200/-, is rejected. Consequently, it is held that, no amount is recoverable from the petitioner. (ii) Respondents are directed to finalise the pension case of the petitioner, considering Rs. 11025/- as his last pay drawn. The respondents are also directed to calculate and pay retirement dues to the petitioner, on this basis, within a period of three months from today. (iii) Any amount paid to the petitioner towards his retirement dues, during pendency of this petition, either under the interim orders of this Court or otherwise, shall be adjusted against the final payment that may be made to the petitioner. (iii) Any amount paid to the petitioner towards his retirement dues, during pendency of this petition, either under the interim orders of this Court or otherwise, shall be adjusted against the final payment that may be made to the petitioner. The difference outstanding, shall be paid to the petitioner, within a period of three months from today. Rule is made absolute. No order as to costs. Rule absolute.