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Gujarat High Court · body

2019 DIGILAW 1010 (GUJ)

Jadeja Kirtisinh Nathubha v. State of Gujarat

2019-10-21

A.S.SUPEHIA

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ORDER : A.S. Supehia, J. 1. Rule. Learned Assistant Government Pleader Mr. Ishan Joshi waives service of notice of Rule on behalf of the respondent Nos. 1 and 2. 2. In the present writ petition, the petitioner has prayed for a direction to the respondent authorities to release an amount of recovery as ordered vide letter/order dated 09.01.2002 of the respondent No. 3 along with three (3) years interest. 3. At the outset, learned advocate for the petitioner has submitted that the issue is squarely covered by the decision of the Coordinate Bench dated 16.07.2015 passed in Special Civil Application No. 11250 of 2015, wherein this court has quashed and set aside the action of the respondents in ordering the recovery. He has submitted that the petitioner is identically situated person to the petitioners of Special Civil Application No. 11250 of 2015. Learned advocate has further submitted that the aforesaid order has been complied with and the benefits are conferred to those petitioners. 4. Learned Assistant Government Pleader Mr. Ishan Joshi has submitted that the impugned action of the respondent authority may not be set aside as the respondent has rightly passed the order of recovery of Rs. 44,426/- as the petitioner was paid excess amount of arrears when he was granted deemed date of promotion. 5. Heard the learned advocates for the respective parties. 6. In the present writ petition, the petitioner was granted deemed date of promotion vide order dated 07.04.2001 to the post of Office Superintendent from the post of Head clerk. The respondents have passed the impugned order by placing reliance on the Government Resolution dated 07.01.2000. The Coordinate Bench of this court, while examining similar and identical issue in the case of similarly situated 28 petitioners and after considering the Government Resolution dated 07.01.2000 has held thus: "6. It is not in dispute that the petitioners were given the deemed date of promotion in accordance with the provisions contained in the Government Resolution, General Administration Department, dated 07.01.2000 and 16.03.2001 respectively. The pay fixation was done accordingly and the same was also confirmed by the Local Fund Office. The petitioners were paid the requisite amount towards the pay and allowances with the arrears. Thereafter, the respondents thought fit to recall the orders and also, effected recovery of the requisite amount paid to the employees i.e. the benefit of the deemed date promotion. 7. The petitioners were paid the requisite amount towards the pay and allowances with the arrears. Thereafter, the respondents thought fit to recall the orders and also, effected recovery of the requisite amount paid to the employees i.e. the benefit of the deemed date promotion. 7. Some of the employees challenged the action of the State Government before the Tribunal and they succeeded in part. The order of recovery was quashed by the Tribunal. The Tribunal after taking into consideration the Government Resolution took the view that any consequential benefits like pay, promotion, etc., already given to the Government servant by virtue of the resolution dated 07.01.2000, should not have been withdrawn but should have been continued as personal to them. 10. I may quote with profit a decision of the Supreme Court in the case of Shiv Dass Vs. Union of India & Others reported in (2007) 9 SCC 274 . I may quote the observations made in paragraphs-8, 9 and 10 as under: "8. It was stated in State of M.P. v. Nandlal Jaiswal that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. 9. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore. 9. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore. There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See also State of Orissa v. Arun Kumar Patnaik.) 10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit the appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone." 11. In the result, this application succeeds and is hereby allowed. The impugned order dated 10.02.2015 is hereby quashed and set aside. The respondents shall refund the amount of Rs. 84,094/- and Rs. 81,682/- with 8% interest of last three years to the petitioners. This exercise shall be completed within a period of eight weeks from the date of the receipt of the writ of the order." 7. Thus, this court has quashed and set aside the similar orders passed in the case of those petitioners and further, respondents are directed to refund the amount with 8% interest. 8. Under the circumstances, the present writ petition succeeds in terms of the judgment and order dated 16.07.2015 passed in Special Civil Application No. 11250 of 2015. The respondents are hereby directed to refund the amount of Rs. 44,426/- to the petitioner with 8% interest of last three (3) years. Necessary orders shall be passed within a period of eight (8) weeks from the date of receipt of writ of this order. The respondents are hereby directed to refund the amount of Rs. 44,426/- to the petitioner with 8% interest of last three (3) years. Necessary orders shall be passed within a period of eight (8) weeks from the date of receipt of writ of this order. Rule is made absolute to the aforesaid extent. Direct service is permitted.