Research › Search › Judgment

Gujarat High Court · body

2013 DIGILAW 417 (GUJ)

D. G. Solanki v. State of Gujarat

2013-07-18

RAVI R.TRIPATHI

body2013
ORDER : 1. The petitioner, who has now retired on 31.10.2010, is before this Court being aggrieved by an order passed by respondent No. 3 dated 21.01.2003, a copy of which is produced at Annexure-C, whereby respondent No. 3 has ordered rectification of the order granting higher pay-scale and consequently the amount which is calculated to have been paid in excess is ordered to be recovered. 2. The controversy involved in the matter lies in a very narrow compass. The facts of the case are that the petitioner initially joined as Junior Clerk in District Panchayat, Surendranagar in the year 1972. Later on, he appeared for the recruitment examination for Deputy Chitnis and he was selected and was appointed in the year 1980 as Deputy Chitnis. In light of the scheme of the Government of granting higher pay-scale in the event there is no promotion available to the higher post, in the year 1989, the petitioner was granted pay-scale of Taluka Development Officer (TDO). Later on, by order impugned, that pay-scale of TDO was withdrawn and it was directed that he should be paid only the pay-scale of Deputy TDO. 3. Learned Advocate for the petitioner submitted that it is not in dispute that normally, the set-up/establishment of District Panchayat is that a person who joins as a Junior Clerk is promoted to the post of Senior Clerk, Senior Clerk is promoted as a Head Clerk and promotion from the post of Head Clerk lies to the post of Deputy Chitnis. But, so far as Deputy Chitnis is concerned, the promotion lies to the post of Deputy TDO and from Deputy TDO, promotion lies to the post of TDO, which is a gazetted post. 4. It so happened that in Surendranagar District Panchayat, there was no post of Deputy TDO and that it why possibly, an error was committed and at the time of granting higher pay-scale, the petitioner was granted pay-scale of TDO. This was done in the year 1989 and it was only in the year 2003 that the error was detected and consequently, order dated 21.01.2003 came to be passed. 5. This was done in the year 1989 and it was only in the year 2003 that the error was detected and consequently, order dated 21.01.2003 came to be passed. 5. Learned Advocate for the petitioner submitted that it is not the case of the respondent authorities that there was any misrepresentation whatsoever on the part of the petitioner for getting the higher pay-scale of TDO instead of Deputy TDO and therefore, while that order is rectified, at least, on the point of recovery, the petitioner should be granted necessary relief as was granted by the Hon'ble the Apex Court in the matter of Syed Abdul Qadir and Others vs. State of Bihar and Others, 2009 AIR SCW 1871. Learned Advocate for the petitioner relied upon Paras-26, 27 and 28 of the judgment, which read as under:- “26. From the record that has been produced before us, there is not an iota of doubt that officials of the State Government, responsible for issuing Resolution dated 18.12.1989, were ignorant of the amended provisions of the FR. 22-G and it is their inaction, negligence and carelessness which has created all the chaos in the case on hand. Further, until January, 1999, the officials of the Education Department of the Government of Bihar were unaware of the amendment in the said rule until the Accountant General, Government of Bihar, on a query being made to him by the Director of Secondary Education, who is the Head of the Department of the Secondary Education in the State of Bihar, vide his letter dated 8.1.1999, responded to the said query that the officials of the Education Department came to know of the amendment in FR. 22-C. That apart, it also appears from the record produced before us that while the Finance Department of the Government of Bihar was in favour of making the amended provisions of FR. 22-C applicable to the appellants-teachers after having come to know that the said rule did not exist and had been substituted, the Department of Human Resource Development, Government of Bihar, wanted to apply the un-amended provision to the appellants-teachers so as to make available the benefit of additional increment provided for under FR. 22-C to its teachers, unaware of the fact that even under FR. 22-C they were not entitled to the additional increment as they were not discharging duties and responsibilities of greater importance on the promoted post. 22-C to its teachers, unaware of the fact that even under FR. 22-C they were not entitled to the additional increment as they were not discharging duties and responsibilities of greater importance on the promoted post. This further goes on to show that the authorities in the State of Bihar were not even aware of the basic requirement for grant of additional increment and the decision appears to have been taken without proper application of mind. Otherwise, there was no reason for the Finance Department to state in the counter-affidavit filed before the High Court that any affidavit filed on behalf of the Education Department may be ignored as Finance Department was the competent authority. In this very affidavit, the Finance Department while admitting that the pay fixation by the Education Department was wrong, stated as under:- “...the fixation of pay under Fundamental Rule 22-C has wrongly been made as it was not in existence. Pay fixation on the basis of a non-existent rule is a bona-fide mistake.” 27. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 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. Sahib Ram vs. State of Haryana, 1995 Supp (1) SCC 18, Shyam Babu Verma vs. Union of India, (1994) 2 SCC 521 , Union of India vs. M. Bhaskar, (1996) 4 SCC 416 , V. Ganga Ram vs. Regional Joint Director, (1997) 6 SCC 139 , Col. B.J. Akkara (Retd.) vs. Government of India and Others, (2006) 11 SCC 709 , Purshottam Lal Das and Others vs. State of Bihar, (2006) 11 SCC 492 , Punjab National Bank and Others vs. Manjeet Singh and Another, (2006) 8 SCC 647 and Bihar State Electricity Board and Others vs. Bijay Bahadur and Others, (2000) 10 SCC 99 . 28. Undoubtedly, the excess amount that has been paid to the appellants-teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona-fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.” 5.1 Learned Advocate for the petitioner therefore requested that while the petitioner may not be able to get substantial relief of quashing and setting aside of rectificatory order dated 21.01.2003 (Annexure-CD) at least, relief against recovery may please be considered and granted. 6. Learned Advocate Mr. Munshaw for the respondent District Panchayat vehemently argued the matter and invited attention of the Court to the affidavit filed by one Shri Jagdishchandra Hemabhai Solanki on behalf of Respondent No. 3-District Development Officer. 6. Learned Advocate Mr. Munshaw for the respondent District Panchayat vehemently argued the matter and invited attention of the Court to the affidavit filed by one Shri Jagdishchandra Hemabhai Solanki on behalf of Respondent No. 3-District Development Officer. Learned Advocate for the District Panchayat invited attention of the Court to Paras-1, 2 and 3 of the affidavit, which read as under:- “1........It is most respectfully states that the petitioner joined the service of Surendranagar District Panchayat as Junior Clerk on 15.11.72 and thereafter he was selected and appointed as directly recruited Chitnis in Surendranagar District Panchayat on 15.7.80. It is stated that the pay scale of the cadre of Deputy Chitnis is Rs. 1400-2600/-. The respondent No. 3 humbly states that the cadre of Deputy Chitnis and Deputy Taluka Development Officer are district level Class III cadres. It is most respectfully stated that the next promotion is to a Class II post of Taluka Development Officer and it is a gazetted officer's post and under the administrative control and supervision of the Development Commissioner of the Govt. of Gujarat and Secretary to the Govt. of Gujarat, Panchayat and Rural Housing Department. The respondent No. 3 states that the pay scale of the cadre of Taluka Development Officer is Rs. 2000-3500/-. 2. It is most respectfully stated that the Govt. of Gujarat has evolved a scheme for higher pay scale through a Government Resolution dated 5.7.91 and thereafter through (sic) a Govt. Resolutions are annexed herewith as ANNEXURES-A and B respectively. It is humbly stated that para-3(3) of Govt. Resolution dated 16.8.94 categorically provides that when there are avenues for promotion to more than one cadre then an employee is eligible and entitle to the benefit of higher pay scale of the lower pay scale amongst the available avenues. It is most respectfully stated that so far as Surendranagar District Panchayat is concerned there is a cadre of Deputy Chitnis but there are no sanctioned posts in the cadre of Deputy Taluka Development Officer. In view of this when the petitioner claimed for the benefit of higher pay scale and became eligible for it through inadvertence he was given the benefit of the pay scale of Taluka Development Officer i.e. Class II Gazetted post and placed in the scale of Rs. 2000-3500 instead of 1640-2900 available to the employee belonging to the cadre of Deputy Taluka Development Officer. 2000-3500 instead of 1640-2900 available to the employee belonging to the cadre of Deputy Taluka Development Officer. The respondent No. 3 states that an order was passed on 26.3.93 and the petitioner was given the retrospective effect from 5.7.89 and copy of the order is annexed herewith as ANNEXURE-C. It is pertinent to note that the said order is passed on various terms and conditions including a condition that it is subject to the audit, confirmation and in case of over payment the same would be recovered. The petitioner has even given an undertaking to that effect. At the cost of repetition it is stated that it was stated that so far as the post and cadre of Taluka Development Officer are concerned the competent authority is the Development Commissioner as well as the Secretary to the Govt. of Gujarat, Panchayat and Rural Housing Department. It is further stated that the cadre and post of Deputy Taluka Development Officer are available in most of the districts of the State of Gujarat but as there is no such post and cadre in Surendranagar District Panchayat through inadvertence the petitioner was given the benefit of higher pay scale of Rs. 2000-3500/-. The respondent No. 3 most respectfully states that the petitioner was promoted to the post of Taluka Development Officer by the State Govt., through order dated 16.5.01 and thereafter he has become a Gazetted Officer and posted by the competent authority at various places in other districts. 3. The respondent No. 3 humbly states that the said mistake came to the light when the papers of other employees were forwarded for the benefits of higher pay scale to the higher authority. In view of this through orders dated 22-1-2002 the benefit of the first higher pay scale of Rs. 2000-3500 offered to in all 59 employees was withdrawn and it was decided to provide the first higher pay scale in the scale of Rs. In view of this through orders dated 22-1-2002 the benefit of the first higher pay scale of Rs. 2000-3500 offered to in all 59 employees was withdrawn and it was decided to provide the first higher pay scale in the scale of Rs. 1640-2900 and the copy of the order is annexed herewith as ANNEXURE-D. It is stated that another order dated 18/21-1-03 was passed through which the benefit of first higher pay scale was modified in the case of the present petitioner and others and the copy of the order is annexed herewith as ANNEXURE-E. Being aggrieved and dissatisfied by the same the petitioner preferred Appeal No. 124/03 before the Hon'ble Gujarat Civil Service Tribunal at Gandhinagar and through orders dated 8-6-05 the said appeal is adjourned sine die to examine the issue of jurisdiction as Letters Patent Appeal with regard to the jurisdiction of the Hon'ble Tribunal on the issue of higher pay scale are pending in the High Court of Gujarat. The respondent No. 3 craves leave to annex herewith the written statement filed before the Hon'ble Tribunal as ANNEXURE-F. It is stated that ultimately the Hon'ble Tribunal rejected the said appeal through orders dated 8-9-06 on the issue of jurisdiction. It is pertinent to note at this stage that much prior to the decision of the District Development Officer at Surendranagar which is under challenge a high level committee was appointed on the issue of the first higher pay scale made available to the employees belonging to the cadre of Deputy Chitnis of Surendranagar District Panchayat. It is stated that the said committee had resolved that the employers were eligible for first higher pay scale of Rs. 1640-2900 and the copy of the same is annexed herewith as ANNEXURE-G. 6.1 Learned Advocate for the District Panchayat relied upon a decision of the Hon'ble the Apex Court in the matter of Chandi Prasad Uniyal and Others vs. State of Gujarat and Others, (2012) 8 SCC 417 . Learned Advocate for the District Panchayat invited attention of the Court to para-13 of the judgment and submitted that the Hon'ble the Apex Court has very clearly laid down that there is no proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. 6.2 Learned Advocate for the District Panchayat submitted that in that view of the matter, the petitioner is not entitled to any relief because there is no law which permits unjust enrichment by any person even when he has not received that amount on account of misrepresentation. 7. Learned Advocate for the petitioner, replying to the aforesaid submissions of the learned Advocate for the District Panchayat, invited attention of the Court to para-9 of the very same judgment and submitted that the Hon'ble the Apex Court has stated thus in para-9:- “9. Shyam Babu Verma case was a three-Judge Bench judgment, in that case the higher pay scale was erroneously paid in the year 1973, the same was sought to be recovered in the year 1984 after a period of eleven years. The Court felt that the sudden deduction of the pay scale from Rs. 330-560 to Rs. 330-480 after several years of implementation of the said pay scale had not only affected financially but even the seniority of the petitioners. Under such circumstances, this Court had taken the view that it would not, be just and proper to recovery any excess amount paid.” (Emphasis supplied) 7.1. Learned Advocate for the petitioner submitted that in the case on hand, the higher pay-scale was given to the petitioner in the year 1989 and it is sought to be withdrawn by order dated 21.01.2003, i.e. after as many as 14 years. 7.2. Learned Advocate for the petitioner also successfully invited attention of the Court to the remaining part of para-13, wherein the Hon'ble the Apex Court is pleased to observe as under:- “13 On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or were on the verge of retirement or were occupying lower posts in the administrative hierarchy.” (Emphasis supplied) 7.3. Learned Advocate for the petitioner submitted that the petitioner has already retired on 31.12.2010 and now to face recovery of Rs. 90,847/- will be too harsh on a retired Government employee, more particularly when the prices of essentials of life including that of petrol are increasing beyond imagination of any one. 8. Learned AGP Mr. Rindani, while supporting learned Advocate for the District Panchayat, invited attention of the Court to the relevant paras of the aforesaid judgments of the Hon'ble the Apex Court. 8. Learned AGP Mr. Rindani, while supporting learned Advocate for the District Panchayat, invited attention of the Court to the relevant paras of the aforesaid judgments of the Hon'ble the Apex Court. 9. The Court finds substance in the submissions made by the learned Advocate for the petitioner. The petition is therefore allowed, to the extent that there shall be no recovery from the petitioner of the amount paid to him under order of granting higher pay-scale in the year 1989. Order dated 21.01.2003 will be implemented only qua other aspects, except recovery. Rule is made absolute to the aforesaid extent. No order as to costs. 10. At the request of the learned Advocate for the District Panchayat, it is clarified that this judgment and order may not be treated as precedent in all such type of cases and it should be treated to be a decision in peculiar facts of case. Petition allowed.