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Gujarat High Court · body

2013 DIGILAW 775 (GUJ)

H. N. SHAH v. GUJARAT MARITIME BOARD

2013-12-24

M.R.SHAH

body2013
JUDGMENT M.R. SHAH, J. 1. As common question of facts and law arise in this group of petitions, they are disposed of by this common judgment and order. 2. In all these petitions, the respective petitioners employees of the respondent-Gujarat Maritime Board have prayed to quash and set aside the impugned order dated 22/11/2004 (Annexure-A), by which the respondent – Gujarat Maritime Board has ordered recovery from the pay of the petitioner, difference in the pay scale of Senior Clerk w.e.f. 1983 till 2002-03 i.e. the day on which they came to be actually promoted on the post of Senior Clerk. 3. Facts leading to these Special Civil Applications in nutshell are as under: 3.1. That all the respective petitioners came to be appointed as Junior Clerk with the respondent Board. At the relevant time there was a dispute with respect to seniority in the cadre of Junior Clerk and seniority in the cadre of Junior Clerk was being considered from the date of pre-service training examination. That some of the employees of the respondent – Gujarat Maritime Board approached this Court by way of filing Special Civil Application No.2434 of 1983 and Special Civil Application No.5127 of 1995, submitting that Junior Clerks may be given seniority from the date of their initial appointment. The said Special Civil Applications came to be allowed by this Court by judgment and order dated 7/6/1993 and 25/6/1993, holding that the Junior Clerks be given seniority from the date of their initial date of appointment. Pursuant to the decision of this Court dated 7/6/1993 Seniority List of Junior Clerks, Clerk-Typists, Typists working in the office of the respondent – Gujarat Maritime Board came to be reshuffled and the Seniority List came to be published on 17/12/1993. It appears that because of said reshuffling, some of the persons who were working on the post of Senior Clerk but subsequently found to be junior to the petitioners, were required to be reverted and the petitioners were required to be promoted. However, a decision was taken to give a deemed date of promotion from the date of promotion of person junior to the respective petitioners on the basis of Senior Clerk. However, as per the Office Order, only notionally deemed date of promotion was to be given. However, a decision was taken to give a deemed date of promotion from the date of promotion of person junior to the respective petitioners on the basis of Senior Clerk. However, as per the Office Order, only notionally deemed date of promotion was to be given. However, the respective petitioners were paid benefit of deemed date of promotion on the post of Senior Clerk in cash, instead notionally as per the earlier Office Order. All the respective petitioners were granted benefit of deemed date of promotion on the post of Senior Clerk in cash w.e.f. 26/12/1983. It appears that thereafter Office Order was issued on 10/11/1995 whereby 160 supernumerary posts of Senior Clerk came to be created and consequential order was passed on 17/11/1995 assigning specific date to each employee – petitioner on the said supernumerary post of Senior Clerk. It appears that thereafter, actual promotion on the post of Senior Clerk was given to the respective petitioners vide order dated 29/4/2002 and/or in the year 2002 as and when regular posts were sanctioned. Simultaneously, supernumerary posts came to be abolished. That thereafter it was found that arrears of pay and allowances given to the respective petitioners on the post of Senior Clerk w.e.f. 26/12/1983 in cash, which was required to be granted notionally, is not as per the rules and therefore, the respondent – Gujarat Maritime Board served a show caues notice upon the petitioners by which the petitioners were called upon to show cause as to why the amount paid in excess and which was found to be not as per the rules, should not be recovered. Thereafter, by the impugned orders, the respondent – Gujarat Maritime Board has ordered recovery of the arrears of pay and allowances paid on the post of Senior Clerk, paid w.e.f. 26/11/1983 on the ground that the respective petitioners were required to be granted benefit of deemed date of promotion on the post of Senior Clerk from the date their juniors came to be promoted notionally and instead they are paid the amount in cash. Being aggrieved by and dissatisfied with the impugned order of recovery, the petitioners have preferred these Special Civil Applications for the aforesaid relief. 4. Ms. Being aggrieved by and dissatisfied with the impugned order of recovery, the petitioners have preferred these Special Civil Applications for the aforesaid relief. 4. Ms. Harshal Pandya, learned advocate appearing on behalf of the respective petitioners has vehemently submitted that as such neither there was any misrepresentation on the part of the respective petitioners nor fraud for grant of benefit of deemed date promotion in cash and the same cannot be said to be attributed to the respective petitioners. 4.1. Ms. Harshal Pandya, learned advocate appearing on behalf of the petitioners has further submitted that a conscious decision was taken by the respondent authority to grant benefit of deemed date of promotion in cash w.e.f. 1982-1983, receptively. Therefore, relying upon the decision of the Hon'ble Supreme Court in the case of Shyam Babu Verma Versus Union of India, reported in 1993 (1) SCC 539 as well as decision of the Hon'ble Supreme Court in the case of Syed Abdul Qadir Versus State of Bihar, reported in 2009(3) SCC 475 , it is requested to quash and set aside the impugned orders of recovery. 4.2. Ms. Pandya, learned advocate appearing on behalf of the respective petitioners has further submitted that even otherwise on merits also recovery from 1982-83 till 2002-2003 is not justified. It is submitted that, as such, all these petitioners came to be promoted on the post of senior clerk on the supernumerary post created pursuant to the orders dated 10/11/1995 and they were actually appointed on temporary and ad-hoc basis on the post of senior clerk on such supernumerary post created for the petitioners by office order dated 10/11/1995. It is submitted that therefore, the recovery for the period after 10/11/1995 is not justified even on merits. By making above submissions and relying upon the above decisions, it is requested to allow all these Special Civil Applications. 5. All these petitions are opposed by Ms. Sejal Mandaviya, learned advocate appearing on behalf of the respondent – Gujarat Maritime Board. It is submitted that as such and even considering the earlier orders passed by this Court in earlier litigations, all these petitioners were required to be given deemed date of promotion notionally and were not required to be paid any benefit of deemed date of promotion in cash. It is submitted that as such and even considering the earlier orders passed by this Court in earlier litigations, all these petitioners were required to be given deemed date of promotion notionally and were not required to be paid any benefit of deemed date of promotion in cash. However, by mistake, they were granted benefit of deemed date of promotion in cash for the period from 1982-83 and therefore, the authority is justified in passing the impugned order of recovery of the amount which was paid in excess and/or paid by mistake. 5.1. Ms. Mandaviya, learned advocate appearing on behalf of the respondent -Board has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Chandi Prasad Uniyal and others versus State of Uttarakhand and others, reported in 2012 (8) SCC 417 . It is submitted that in the said decision the Hon'ble Supreme Court has specifically held that for recovery of public money, concept of fraud or misrepresentation by recipient has no role to play. It is submitted that it is held by the Hon'ble Supreme Court in the said decision that amount paid / received without authority of law can always be recovered barring few exceptional of extreme hardship but not as a matter of right. It is submitted that it is specifically held by the Hon'ble Supreme Court in the said decision that no law has been laid down in any judgment of the Supreme Court that only if there is misrepresentation or fraud on the part of the recipient of the money in getting excess pay, can amount paid be recovered. It is submitted that in the aforesaid decision the Hon'ble Supreme Court has considered all earlier decisions on the point, inclusive of one which has been relied upon by the learned advocate appearing on behalf of the petitioners i.e. in the case of Sham Babu Verma (supra). 5.2. Now, so far as the contention on behalf of the petitioners on merits that when the respective petitioners came to be promoted on temporary and ad-hoc basis on the post of Senior Clerk on the supernumerary posts created pursuant to the order dated 10/11/1995 and they came to be promoted on temporary and ad-hoc basis vide order dated 10/11/1995 and thereafter, there cannot be any recovery for the period 10/11/1995 onwards is concerned, Ms. Sejal Mandaviya, learned advocate appearing on behalf of the respondent Board is not in a position to justify recovery for the period 10/11/1995 onwards. 6. Heard the learned advocates appearing on behalf of the respective parties at length. 6.1. At the outset, it is required to be noted that pursuant to the decisions of this Court in the earlier litigations between the parties, all the petitioners were required to be granted deemed date promotion, however, notionally. It appears that deemed date of promotion to the respective petitioners were required to be granted from the year 198283 onwards, however, notionally. It appears that in view of the earlier decisions of this Court between the parties and with a view to see that juniors to the petitioners are not required to be reverted, by order dated 10/11/1995 160 supernumerary posts of Senior Clerk came to be created and vide order dated 17/11/1995 in fact all the petitioners herein came to be appointed on the post of Senior Clerk on temporary and ad-hoc basis on the said supernumerary post created and on a condition that as and when regular posts are created and/or sanctioned, said supernumerary posts shall be cancelled. Under the circumstances, as such there is no justification to make recovery for the period 17/11/1995 onwards. When actually the petitioners were promoted on temporary and-ad-hoc basis on the post of Senior Clerk. As such the respective petitioners who worked on the post of senior clerk may be on temporary and ad-hoc basis and may be on supernumerary posts, they were entitled to salary / pay scale which was available to the senior clerk. 6.2. Now, so far as the challenge to the recovery of the amount paid in excess for the period 1982-83 to 17/11/1995 and reliance placed upon the decisions of the Hon'ble Supreme Court in the case of Shyam Babu Verma (supra) as well as Syed Abdul Qadir (supra), are concerned, the same cannot be accepted. It is not disputed that as such all the petitioners were required to be granted deemed date of promotion on the post of senior clerk notionally and they came to be paid deemed date of promotion in cash. It is not disputed that as such all the petitioners were required to be granted deemed date of promotion on the post of senior clerk notionally and they came to be paid deemed date of promotion in cash. Therefore, the amount which was paid from 1982-83 respectively granting them due date of promotion in cash can be said to be in excess and without authority under the law and it can be said that they were not entitled to actual date of promotion in cash. Identical question came to be considered by the Hon'ble Supreme Court recently in the case of Chandi Prasad Uniyal and others (supra) and considering all the other decisions of the Hon'ble Supreme Court on the point, it is specifically held by the Hon'ble Supreme Court that for recovery of public money, concept of fraud or misrepresentation by recipient has no role to play. It is held that the amount paid / received without authority of law can always be recovered barring few exceptional of extreme hardship but not as a matter of right. It is also specifically held by the Hon'ble Supreme Court that no law has been laid down in any of the judgments of the Hon'ble Supreme Court that only if there is misrepresentation or fraud on the part of the recipient of money in getting excess pay, can the amount paid be recovered. It is also required to be noted that in the said decision the Hon'ble Supreme Court has considered the earlier decisions in the case of Sham Babu Verma (supra) which has been relied upon by the petitioner. The Hon'ble Supreme Court in the said case of Chandi Prasad Uniyal and others (supra) in para Nos. 8, 13 and 14 has observed and held as under:- “8. We are of the considered view, after going through various judgments cited at the bar, that this court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered. 13. We are of the considered view, after going through various judgments cited at the bar, that this court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered. 13. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any 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. 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 on the verge of retirement or were occupying lower posts in the administrative hierarchy. 14. We are concerned with the excess payment of public money which is often described as “tax payers money” which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.” Under the circumstances, the contention on behalf of the petitioners that there cannot be any recovery even for the period prior to 17/11/1995 is rejected and not accepted. 6.3 In view of the above and for the reasons stated above, all these petitions succeed in part. 6.3 In view of the above and for the reasons stated above, all these petitions succeed in part. The order dated 22/11/2004 passed by the of the respondent – Gujarat Maritime Board in making recovery of the amount paid towards salary to the respective petitioners on the post of senior clerk for the period 17/11/1995 onwards is hereby quashed and set aside. However, the recovery sought to be made for the period 1982-83 respectively till 17/11/1995 is just and legal and the same is hereby confirmed. Rule is made absolute to the aforesaid extent in each of the Special Civil Applications. As all these Special Civil Applications were pending, it will be open for the respective petitioners to submit appropriate application before the respondent management for reasonable installments, which may be considered by the respondent sympathetically.