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2016 DIGILAW 1133 (GUJ)

PURSHOTTAM KARSONBHAI SOJITRA v. STATE OF GUJARAT

2016-06-17

A.S.SUPEHIA

body2016
JUDGMENT : 1. By way of the present petition under Article 226 of the Constitution of India, the petitioner has prayed for direction for quashing and setting aside the impugned order dated 12.03.2003 passed by Executive Engineer, Panchayat Division, Amreli, whereby an amount of Rs.4,42,257/is sought to be recovered from the petitioner on the ground that he has been granted incorrect pay of the post of Tracer. Said mistake was noticed by the authorities when the case of the petitioner was sent for grant of higher payscale. It deserves to be noted that the petitioner retired on superannuation on 30.09.2000, whereas the impugned order is passed on 12.03.2003, after retirement of the petitioner. 2. Mr.Mishra, learned advocate appearing for the petitioner, has contended that no recovery could have been affected on the petitioner after his retirement. He has also stated that there is no fraud or misrepresentation made by the petitioner while granting the payscale of Tracer. He has also relied upon judgment of State of Punjab and Ors. Vs. Rafiq Masih (White Washer), 2015 I LLJ 455 (SC). 3. Per contra, Mr.H.S.Munshaw, learned advocate appearing on behalf of the respondent authorities, has vehemently submitted that the authorities have rightly passed the order of recovery. He has also relied on Paragraph Nos.34 of the affidavit-in-reply dated 20.11.2003 filed by Executive Engineer, District Panchayat, Amreli. He has stated that the post of Draftsman was vacant in the District Panchayat and accordingly the petitioner, who was already in service since 1964, was appointed as Draftsman. Thereafter, it was realized that as the appointment of the petitioner was not in accordance with the recruitment rules as he was not holding the requisite qualification of Diploma in Mechanical or Electrical Engineering. However, the case of the petitioner was considered for promotion to the post of Draftsman and accordingly a proposal was also sent to the State Government. The State Government vide letter dated 23.04.1974 rejected the said proposal since the petitioner was not qualified for the post of Draftsman and the State Government directed the respondent authorities to consider the case of the petitioner for promotion as Assistant Draftsman. 4. Pursuant to the aforesaid communication the respondent authorities reverted the petitioner to the post of Assistant Draftsman vide order dated 30.04.1974. The petitioner was promoted to the post of Draftsman vide order dated 26.02.1975. 4. Pursuant to the aforesaid communication the respondent authorities reverted the petitioner to the post of Assistant Draftsman vide order dated 30.04.1974. The petitioner was promoted to the post of Draftsman vide order dated 26.02.1975. Said appointment, according to Mr.H.S.Munshaw, learned advocate appearing on behalf of the respondent authorities, was conditional, ad hoc and temporary. Vide order dated 30.07.1974 the State Government closed the Irrigation Division of Amreli District Panchayat and, therefore, post of Tracer and Assistant Draftsman were discontinued w.e.f. 31.08.1975 resulting into reversion of the petitioner to the post of Tracer w.e.f. 31.08.1975. 5 Mr.H.S.Munshaw, learned advocate appearing on behalf the respondent authorities, has also stated that the petitioner, thereafter challenged his reversion before learned Civil Judge (S.D.), Amreli, by filing Regular Civil Suit No.216 of 1975 and the same was dismissed vide order dated 26.02.1977. He further carried out the said order in appeal before District Court, Amreli, by filing Civil Appeal No.28 of 1977 and the same also was dismissed on 15.08.1980. Being aggrieved by the said order the petitioner moved High Court by filing Second Appeal No.360 of 1980, which was dismissed vide order dated 20.04.1998. Throughout these entire litigations, as per the statement made by Mr.H.S.Munshaw, the petitioner was continued on the same post because of the interim orders passed by the Courts. Thereafter, the petitioner attended the age of superannuation on 30.09.2000. He has submitted that as the petitioner had continued under the interim orders of the Courts the recovery was justified. 6. Mr.Mishra, learned advocate appearing for the petitioner, has also prayed to fix his pension and to pay arrears with interest as if he was promoted to the post of Assistant Draftsman. 7. Having given thoughtful consideration to the entire controversy and to the rival submissions made by the learned advocates appearing for the respective parties, I am of the view that order dated 12.03.2003 affecting the recovery from the petitioner after his retirement cannot be sustained. The Apex Court in the case of State of Punjab and Ors. (supra) has laid down the exceptions under which recovery of excess amount paid to employees is impermissible. I am of the considered opinion that the case of the petitioner would fall under such exceptions. 8. The Apex Court in the case of State of Punjab and Ors. (supra) has laid down the exceptions under which recovery of excess amount paid to employees is impermissible. I am of the considered opinion that the case of the petitioner would fall under such exceptions. 8. It is also an undisputed fact that the petitioner was promoted on the post of Draftsman by the respondent authorities on their own and no misrepresentation or fraud can be attributed to the petitioner for his promotion. 9. It is unfortunate fact that for all these years the petitioner continued on the same post due to the interim orders passed by the Courts in various litigations filed by him against his reversion. The respondent authorities are equally liable for such lapse as no efforts were made by the respondent authorities to see that the stay on the reversion order was vacated. It appears that no efforts were made by the respondent authorities to challenge the said order before the higher forum and both the litigant parties whittled away the time in the litigations. As a result the petitioner continued in promotional post, and ultimately the suit was dismissed prior to two years before his retirement. Even after the superannuation of the petitioner on 30.09.2000 the respondent authorities passed the impugned order, after a period of three years i.e. 12.03.2003. For three years the respondent authorities slept over the issue and no efforts were made to see that any order qua reversion was passed against the petitioner. Prayer of the petitioner for fixing his pension and pay on the post of Assistant Draftsman is misconceived since the civil suit challenging his reversion was ultimately dismissed in the year 1998. In the wake of dismissal of civil suit the subsequent prayer of the petitioner for fixing his pension on the post of Assistant Draftsman deserves to be rejected and the same is hereby rejected. 10. Learned advocate appearing for the petitioner has drawn attention of this Court to the order dated 18.07.2003 wherein this Court had stayed the orders dated 12.03.2003 and 17/21.03.2003 with further directions to the respondents to deposit Rs.3,85,820/before this Court within 15 days from the date of receipt of copy of the said order. 11. 10. Learned advocate appearing for the petitioner has drawn attention of this Court to the order dated 18.07.2003 wherein this Court had stayed the orders dated 12.03.2003 and 17/21.03.2003 with further directions to the respondents to deposit Rs.3,85,820/before this Court within 15 days from the date of receipt of copy of the said order. 11. Vide order dated 19.10.2004, passed by this Court in Civil Application No.8389/2003, the said condition is deleted and it was observed that the applicant shall file an undertaking before this Court within a period of two weeks to pay the amount along with interest as may be decided by the court at the time of final disposal of the petition. 12. In my view, the petitioner is not entitled to interest on the amount of recovery, as he was continued on the promotional post because of the interim orders of the Courts. The order of reversion was justified in wake of abolition of posts. Admittedly, the petitioner was also not qualified for the promotional post also. His suit challenging reversion was also dismissed. Hence, the prayer for fixing his pension on the post of Assistant Draftsman cannot entertained. 13. In the result, the petition is partly allowed, the impugned order dated 12.03.2003 affecting the recovery from the petitioner is quashed and set aside. The amount of Rs.4,42,257/should be refunded to the petitioner within a period of six weeks from receipt of this order. Rule made alsolute to the aforesaid extent.