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2014 DIGILAW 405 (GUJ)

STATE OF GUJARAT v. A. D. PUROHIT

2014-03-20

K.J.THAKER, VIJAY MANOHAR SAHAI

body2014
ORAL JUDGMENT VIJAY MANOHAR SAHAI 1. We have heard Mr.Udit Mehta, learned AGP appearing for the appellants. 2. This Letters Patent Appeal has been filed by the appellants-original respondents challenging the judgment of the learned Single Judge dated 19.07.2013 passed in Special Civil Application No.24263 of 2006 with Special Civil Application No.24316 of 2006 with Special Civil Application No.24317 of 2006. 3. The appellants-original respondents had issued orders for rectification of grant of higher pay scale at the relevant time to the opponent-original petitioner, who was working as Lino Operator. On completion of nine years service and having become entitled to higher pay scale, the opponent-original petitioner was granted higher pay scale of Rs.1400-2300/- which was the pay scale of the post of Compose Overseer. While the opponent-original petitioner was serving as Lino Operator, he was entitled to get promotion to the post of Compose Foreman/Lino Mechanic at higher pay scale, but Gujarat Civil Service (Revision of Pay) Rule, 1987 which came into force from 01.01.1986, the pay scale of Lino Operator was made equivalent to the post of Compose Foreman and Lino Mechanic. 4. The opponent-original petitioner has been considered on the post of Compose Foreman/Lino Mechanic as a promotional post, though there is no enhancement in the pay scale as even if a person is promoted on the post of Compose Foreman/Lino Mechanic, he will be getting the same pay scale. Promotion pre supposes higher pay scale. Promotion cannot be effected in the same pay scale. This question was not answered by the appellants-original respondents before the learned Single Judge and even before this Court in this appeal, this question has not been answered or explained in any paragraph. After considering the facts of the case, the learned Single Judge was of the opinion that the pay scale has rightly been paid to the opponent-original petitioner. Paragraph Nos. 5, 6, 7 and 8 are extracted below: “5. Learned advocate Mr. Vaibhav Vyas for the petitioners submitted that it is not the case of the respondent authorities that there was any mis-representation whatsoever on the part of the petitioner for getting the higher pay-scale and therefore, even if that order is not rectified, at least, qua the recovery, the petitioner be granted necessary relief as was granted by the Hon’ble the Apex Court in the matter of Syed Abdul Qadir & Ors. Vs. Vs. State of Bihar & Ors., reported in 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 unamended 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. 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. 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 nonexistent 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. See 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 Jt., Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] vs. Government of India and Ors. (2006) 11 SCC 709 ; Purshottam Lal Das and Ors., vs. State of Bihar, [2006] 11 SCC 492; Punjab National Bank and Ors. vs. Manjeet Singh and Anr., [2006] 8 SCC 647; and Bihar State Electricity Board and Anr. vs. Bijay Bahadur and Anr., [2000] 10 SCC 99. 28. B.J. Akkara [Retd.] vs. Government of India and Ors. (2006) 11 SCC 709 ; Purshottam Lal Das and Ors., vs. State of Bihar, [2006] 11 SCC 492; Punjab National Bank and Ors. vs. Manjeet Singh and Anr., [2006] 8 SCC 647; and Bihar State Electricity Board and Anr. vs. Bijay Bahadur and Anr., [2000] 10 SCC 99. 28. Undoubtedly, the excess amount mat 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.” 6. Learned AGP relied upon a decision of the Hon’ble the Apex Court in the matter of Chandi Prasad Uniyal & Ors. Vs. State of Gujarat & Ors., reported in (2012)8 SCC 417 . Learned AGP for the respondents 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 to the effect 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’. 7. Learned Advocate for the respondents submitted that in that view of the matter, the petitioners are 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. 8. 7. Learned Advocate for the respondents submitted that in that view of the matter, the petitioners are 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. 8. Learned Advocate for the petitioners, replying to the aforesaid submissions of the learned AGP for the respondents 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) As the order is quashed there is no question of recovery from the petitioners. The petitions are a owed. Rule is made absolute. No order as to cost. So far as petitioner of SCA No.24263 of 2006 is concerned he retired on 30.06.2010, whereas petitioner of SCA No.24317 of 2006 has retired on 31.05.2008 and petitioner of SCA No.2416 of 2006 is going to retire on 30.09.2013. Therefore the observations made by this Court in judgment dated 18.07.2013 rendered in Special Civil Application No.23253 if 2996 are squarely applicable to the present petitioners also.” 5. We are in full agreement with the findings recorded by the learned Single Judge that the higher pay scale was rightly paid to the opponent-original petitioner and he has not played any fraud on the appellants-original respondents and he was entitled for higher pay scale after having been promoted to the next higher post. 6. For the aforesaid reasons, we do not find any merit in this appeal. Hence, this appeal fails and is accordingly dismissed. 7. In view of dismissal of the present Letters Patent Appeal, Civil Application No.2193 of 2014 also stands disposed of.