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2024 DIGILAW 1804 (GUJ)

STATE OF GUJARAT v. D. S. PATEL

2024-09-03

A.S.SUPEHIA, MAUNA M.BHATT

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JUDGMENT : A.S. SUPEHIA, J. 1. The present Letters Patent Appeal filed under Clause 15 of the Letters Patent, 1865, is directed against the judgment and order dated 29.03.2017 passed by the learned Single Judge, allowing the captioned writ petition. BRIEF FACTS: 2. Since the original petitioner (deceased employee) has passed away, his legal heirs are representing the present appeal. The respondent-deceased employee was appointed as an Assistant Librarian on 27.12.1972. He was holding the qualification of SSC pass. He was appointed in the Government Medical College, Surat under the Health and Family Welfare Department. Thereafter, he was promoted to the post of Librarian and was also granted Higher Pay-Scale. 3. It is the case of the appellant state, that there are two levels of higher pay-scales, one at the level of Gujarat State i.e. SSC pass, whose pay-scale was Rs.1640-2900/- and in case, the candidate is UGC Graduate or Diploma, his pay-scale would be Rs.2200-4000/-. It appears that through an oversight, the respondent-deceased employee was given the pay-scale of Rs.2200-4000/- instead of Rs.1640-2900/-. The respondent- deceased employee was conferred the said pay-scale of Rs.2200-4000/- by the Dean, Government Medical College, Surat with effect from 01.02.1990. The same was further revised to Rs.8000-13,500/- w.e.f. 01.01.1996 pursuant to the Revision of Pay Rules, 1998. After completion of 8 years of service, he was granted the benefit of Senior Scale of Rs.10,000-15,200/- w.e.f. 01.02.1998. 4. By the letter dated 18.11.2005, the Office of the Commissioner, Medical Education Research, sought an explanation from the Dean, Government Medical College, Surat, in respect of the pay-scale of Rs.2200-4000/- granted to the present respondent - deceased employee (original petitioner). By the order dated 08.12.2005, passed by the Dean, Government Medical College, Surat, his pay-scale was fixed at Rs.4000-6000/-, which is the revised pay-scale of the cadre of Assistant Librarian. It is fixed in a sense that as if he was not promoted on the post of Librarian. Thereafter, the deceased employee reached the age of superannuation on 31.03.2006 and also retired. 5. The deceased-employee filed a writ petition being Special Civil Application No. 2431 of 2006, assailing the order dated 08.12.2005 withdrawing the benefit of UGC pay-scale and re- fixing his salary by the order dated 13.12.2005. Thereafter, the deceased employee reached the age of superannuation on 31.03.2006 and also retired. 5. The deceased-employee filed a writ petition being Special Civil Application No. 2431 of 2006, assailing the order dated 08.12.2005 withdrawing the benefit of UGC pay-scale and re- fixing his salary by the order dated 13.12.2005. The learned Single Judge allowed the said writ petition and the order dated 08.12.2005 was set aside on the ground that the same was passed without affording any opportunity of hearing to the deceased employee. However, the learned Single Judge had reserved the liberty in favour of the authority to pass a fresh order after affording reasonable opportunity of hearing. It appears that thereafter, by the order dated 03.11.2006, after hearing the deceased employee, the appellant-authorities held that the employee was not entitled to the pay-scale of Rs.2200-4000/- and consequential order dated 18.01.2007 was passed. By the impugned order, the pay-scale of the respondent-deceased employee was fixed at Rs.1640-2900/- instead of Rs.2200-4000/- and further recovery has been ordered. The learned Single Judge has quashed and set aside the aforesaid order by placing reliance on the judgment of the Supreme Court in the case of State of Punjab and Ors. Vs. Rafiq Masih (White Washer) etc., AIR 2015 SC 696 . SUBMISSIONS OF THE LEARNED AGP: 6. The learned Assistant Government Pleader Ms.Dhruve appearing for the State has submitted that assuming that the case of the respondent-deceased employee is covered under the judgment of the Supreme Court in the case of Rafiq Masih (supra), the learned Single Judge ought not to have quashed the entire order of re-fixing the pay-scale. She has submitted that as per the Government Resolution dated 14.09.1998, only those Librarians, who fulfill the requisite qualification of M.Phil or Ph.D. at the time of recruitment, are entitled to the pay- scale of Rs.2200-4000/- and they are entitled for three advance increments in the said pay-scale of Rs.2200-4000/-. She has submitted that the respondent – deceased employee was holding the qualification of only SSC pass and hence, he would not be entitled to the pay-scale of Rs.2200-4000/-, but instead he is entitled to the pay-scale of Rs.1640-2900/-. The respondent-deceased employee is entitled to the pay-scale of Rs.2200-4000/-, since he was qualified as per the UGC norms. It is urged that the order passed by the learned Single Judge may be quashed and set aside. The respondent-deceased employee is entitled to the pay-scale of Rs.2200-4000/-, since he was qualified as per the UGC norms. It is urged that the order passed by the learned Single Judge may be quashed and set aside. SUBMISSIONS OF THE LEARNED ADVOCATE FOR RESPONDENT-DECEASED EMPLOYEE: 7. Learned advocate Mr.Joshi, appearing for the legal heirs of the deceased employee has submitted that the learned Single Judge has appropriately allowed the writ petition after appreciating the relevant documents placed on record. He has submitted that it is the case of the deceased employee that he was rightly granted the pay scale of Rs.2200-4000/- and hence, the action of the respondent authorities of withdrawing the same is illegal and arbitrary. He has further submitted that the pay-scale of Rs.2200-4000/- was granted to the deceased employee on his promotion to the post of Librarian. He has submitted that though the pay-scale of Rs.2200-4000/- was granted to the respondent-deceased employee upon his representation and the same was granted with prior approval of the Government, there is no question of withdrawing it, much less at this stage i.e. after the retirement of the employee and in fact, no recovery could have been ordered by the learned Single Judge. He has submitted that the action of the appellant authorities of withdrawing the pay-scale as well as ordering recovery is illegal, arbitrary and against the settled proposition of law hence, this Court is not required to interfere with the order passed by the learned Single Judge. 8. In support of his submissions, learned advocate Mr.Joshi has placed reliance on the judgment of the Supreme Court in the case of Jagdish Prasad Singh Vs. State of Bihar and Ors. (2024) 8 SCR 377 and has submitted that it is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. It is urged that the present appeal may not be entertained. 9. We have heard the learned advocates appearing for the respective parties. We have also perused the relevant documents produced by the learned Assistant Government Pleader. ANALYSIS AND CONCLUSION: 10. The learned Assistant Government Pleader has produced the original record before us. It is urged that the present appeal may not be entertained. 9. We have heard the learned advocates appearing for the respective parties. We have also perused the relevant documents produced by the learned Assistant Government Pleader. ANALYSIS AND CONCLUSION: 10. The learned Assistant Government Pleader has produced the original record before us. It appears that the respondent- deceased employee was conferred the Higher Pay-Scale, in view of the Government Resolution dated 05.07.1991 vide order dated 25.09.1992 with effect from 01.06.1987. The Higher Pay-Scale was conferred in the pay-scale of Rs.2200- 4000/-. This order does not reflect that the pay scale was conferred in view of the Regulation dated 14.09.1988, but it was conferred in view of the Higher Pay-Scale Scheme introduced by the State Government vide Government Resolution dated 05.07.1991, which provides the benefit of conferring Higher Pay-Scale to an employee, who have remained stagnated for 9, 18 and 27 years of service. The said scheme was modified subsequently, by the Government Resolution dated 16.08.1994. The order dated 25.09.1992 reflects that the respondent-deceased employee was in the pay-scale of Rs.1200-2040/-. It appears that the said pay-scale was not approved by the local fund and there are various inter se communications between the Local Fund Audit and the Dean of Government Medical College, Surat, till the year 1998. In the year 2004, the Dean had requested the Additional Director, Health and Medical Services, State of Gujarat to do the needful with regard to the fixation of the Higher Pay-Scale in view of the Resolution dated 16.08.1994. The said communication specifically refers that though the respondent was conferred the Higher Pay-Scale of Rs.2200-4000/-, the same has not been approved by the Local Fund Audit and objections have been raised. It is also referred that the respondent would be entitled to the UGC Pay-Scale of Rs.10,000-15,200/-. By the communication dated 13.04.2006, the Additional Director informed the Dean of the Government Medical College, Surat that the respondent would be entitled to the pay-scale of Rs.1640-2900/-, instead of Rs.2200-4000/-, as per the provisions of Clause 3(3) of the Government Resolution dated 16.08.1994. 11. The respondent-deceased employee retired on attaining the age of superannuation on 31.03.2006. By the communication dated 13.04.2006, the Additional Director informed the Dean of the Government Medical College, Surat that the respondent would be entitled to the pay-scale of Rs.1640-2900/-, instead of Rs.2200-4000/-, as per the provisions of Clause 3(3) of the Government Resolution dated 16.08.1994. 11. The respondent-deceased employee retired on attaining the age of superannuation on 31.03.2006. Since the appellant authority passed the order of reducing the Higher Pay-Scale and also effected the recovery, he filed the writ petition being Special Civil Application No. 2431 of 2006, which was allowed by the order dated 29.09.2006 and the liberty was reserved in favour of the authority to pass a fresh order after hearing the employee. Ultimately, the impugned order was passed. 12. A bare perusal of the order dated 18.01.2007 reveals that the State Government has held that instead of the Higher Pay- Scale of Rs.2200-4000/-, the respondent-deceased employee would be entitled to the pay-scale of Rs.1640-2900/- w.e.f. 01.06.1987. It is also reflected that since the post of Librarian carries multiple pay-scales, the employees / Librarians would be entitled to lower pay-scale, as per the provisions of Resolution dated 16.08.1994. 13. We have perused the appendix of the Resolution dated 16.08.1994, wherein different pay-scales are prescribed. A perusal of the appendix would shows that a Government employee, who is in the pay-scale of Rs.1400-2300/- or Rs.1400-2600/-, is entitled to the Higher Pay-Scale, after completion of 9 years of service i.e. the pay-scale of Rs.1640- 2900/-. The impugned order does not reflect that the respondent was ever enjoying the pay-scale of Rs.1400-2600/- or Rs.1400-2300/-. On the verge of retirement of the respondent-deceased employee, the State authorities have cancelled his Higher Pay-Scale with effect from 01.06.1984. Till his retirement from service the issue of grant of higher pay scale was not resolved. It is also noticed that during his entire service, no objection was raised by any of the authority with regard to his qualification. The initial order dated 08.12.2005, which was quashed by this Court also does not refer that the deceased petitioner was not qualified to get the pay-scale of Rs.2200-4000/-. Before the learned Single Judge, no ground has been raised in this regard. 14. The learned Single Judge has also recorded that as per the Government Resolution dated 17.06.1989, the State Government decided to confer the pay-scale of Rs.2200-4000/- to the Librarian of the Medical Education. Before the learned Single Judge, no ground has been raised in this regard. 14. The learned Single Judge has also recorded that as per the Government Resolution dated 17.06.1989, the State Government decided to confer the pay-scale of Rs.2200-4000/- to the Librarian of the Medical Education. It is not pointed out to us, whether the said Government Resolution has been withdrawn or not. 15. Under the circumstances, over and above the aforementioned reasons, and in wake of the fact that the respondent-employee has passed away, we are not inclined to even disturb his Higher Pay-Scale since it will directly impact the family pension of the appellant-widow. The learned Single Judge has precisely set aside the recovery by placing reliance on the judgment of the Supreme Court in the case of Rafiq Masih (supra). Hence, the same does not require any interference. 16. For the foregoing reasons and analysis, the present appeal fails and the same is rejected accordingly.