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Gujarat High Court · body

2017 DIGILAW 462 (GUJ)

Vismay K. Shah v. University Grants Commission

2017-02-27

A.S.SUPEHIA

body2017
JUDGMENT : A.S. Supehia, J. 1. By way of the present petition the petitioner has challenged the communication dated 27.04.2005 whereby his pay-scale is withdrawn and the salary paid to him is sought to be recovered. 2. The petitioner was granted the senior pay-scale of Rs. 3000-5000 w.e.f. 09.09.1994. By the letter dated 24.09.2001 the Director of respondent No. 3-Center informed the petitioner that he was granted the second higher pay-scale w.e.f. 30.09.1999 in pay-scale of Rs. 12000-420-18300. The said higher pay-scale was granted pursuant to the recommendations of the board of management and subsequent to Vice Chancellor's order dated 13.09.2001. Accordingly, the difference of salary was also paid to the petitioner vide letter dated 20.01.2003. 3. It is the case of the petitioner that vide communication dated 27.4.2005 respondent no. 3 informed him that the board of management has taken a decision to withdraw the second time bound promotion on the ground that there was no such promotion policy/career progression scheme existing for the employees EMRC. It was also stated that appropriate action shall be initiated to recover the amount of salary paid to the petitioner in this regard. 4. The petitioner has challenged the impugned communication in the present petition by raising various grounds. The first and foremost ground raised by the learned advocate for the petitioner is that the impugned communication is issued without affording any opportunity of hearing, hence, the same being in violation of principles of natural justice is liable to be quashed and set aside. He has further stated that he was granted the first promotion vide letter dated 18.09.2000 and the second promotion by the letter dated 24.09.2001, as per the recommendations of the board of management and resolution of the Government. It is the case of the petitioner that the second promotion, which is sought to be withdrawn is the regular higher pay-scale, which he is legally entitled. The same was granted to him after consideration of all the relevant factors, particularly the academic character of the media center, the educational programme of higher education, the recognition of the post of producer as academic in nature and the achievement of the petitioner. He has submitted that respondent No. 3-Center is under the joint management of the University Grant Commission (UGC). He has submitted that respondent No. 3-Center is under the joint management of the University Grant Commission (UGC). The grant of promotion and higher pay-scale is provided by the UGC and accepted by the university, and the petitioner was rightly granted the higher pay-scales and the promotion. Further contention is raised in the petition that the impugned communication does not set-out any reasons about the erroneous grant of promotion and higher pay-scale. In absence of any reasons and opportunity of hearing, the impugned communication deserves to be quashed and set aside. Reliance is also placed on the decision of Supreme Court in the case of State of Punjab and Others vs. Rafiq Masih, (2015) 4 SCC 334 for the proposition of the law that no recovery can be effected from an employee if the pay-scale or the pay is granted without there being any fault or misrepresentation on the part of the employee. 5. Mrs. V.D. Nanavati, learned advocate appearing on behalf of respondents No. 2 and 3, and Mr. Harshadray Dave, learned advocate appearing on behalf of respondent No. 4, have supported the decision of withdrawal of the promotion and the higher pay-scale of the petitioner. Mrs. Nanavati submitted that the Media Center (EMRC) receives grant from the UGC and the UGC has not approved the second promotion policy, which was given to the petitioner as there was no such career advancement scheme existing in the UGC. Hence, in view of the same, it was decided to withdraw the benefits given to the petitioner. 6. Heard learned advocates appearing on behalf of the respective parties. 7. The undisputed facts are that the petitioner was granted the higher pay-scale, as referred above. The same were withdrawn without affording any opportunity of hearing to the petitioner. Significantly, the impugned communication is bereft of any reasons justifying withdrawal of promotion and pay scale. The petitioner for all these years had enjoyed the benefits granted to him. It is not the case of the petitioner that there was any fraud or representation made by him for grant of the aforesaid benefits. The Supreme Court in the case of Rafiq Masih (supra) has laid down the principles wherein the recovery from the employees would be impermissible in law. It is not the case of the petitioner that there was any fraud or representation made by him for grant of the aforesaid benefits. The Supreme Court in the case of Rafiq Masih (supra) has laid down the principles wherein the recovery from the employees would be impermissible in law. It is observed by the Supreme Court that the recovery of excess payment cannot be extended to an employee if a mistake is committed by the employer or merely because the employee did not furnish any factually information, on the basis thereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee. 8. In my considered opinion, the impugned communication deserves to be quashed and set aside on the ground of violation of principles of natural justice. The same also suffers from the vice of an unreasoned order, hence deserves to be quashed. In any case no recovery could have been made from the petitioner in absence of any fraud or misrepresentation made by him in getting the benefits of promotion or higher pay-scale. The petition is allowed accordingly. Rule is made absolute to the aforesaid extent. Petition Allowed.