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2024 DIGILAW 2071 (GUJ)

Balvantbhai Dhanubhai Bhuriya v. State Of Gujarat

2024-11-26

VAIBHAVI D.NANAVATI

body2024
JUDGMENT : Vaibhavi D. Nanavati, J. 1. Heard Mr. Samir B. Gohil, learned advocate appearing for the petitioner and Ms. Pooja Ashar, learned advocate appearing for the respondent nos. 1 and 2. 2.1. Briefly stated that, the petitioner was appointed as Librarian on 20.02.1990 and was serving at Dudhiya High School, Limkheda since 1990. 2.2. The petitioner was granted 1st higher pay scale of Rs.5000-8000, w.e.f. 20.02.1999 and became entitled for the 2nd higher pay scale, upon completion of 15 years of service, from the date of 1st higher pay scale, in accordance with the government resolution dated 02.07.2007. Accordingly, the school sent proposal to the respondent no.2 for 2nd higher pay scale. The respondent no.2 returned the said proposal with objection to the school vide letter dated 07.11.2016. By letter dated 05.10.2016, the respondent no.3 asked the respondent no.2 to initiate the recovery from the petitioner of excess payment, on the ground that the 1st higher pay scale of Rs.5000-8000 was wrongly granted to the petitioner. The said communication is duly produced at Annexure-C. 2.3. The aforesaid recovery from the petitioner of excess payment, which was granted on 20.02.1999, was effected by communication dated 05.10.2016. The respondent – school orally informed the petitioner that recovery would be affected from June, 2017. 2.4. In light of the aforesaid, petitioner herein has approached this Court, invoking Article- 226 of the Constitution of India, being aggrieved and dissatisfied by the said communication, seeking recovery from the petitioner, which is duly produced at Annexure-C, and has prayed for the following reliefs: “(A) Quashing and setting the letter dated 05.10.2016 passed by the respondent no.3 ordering recovery from the petitioner and further directing the respondents not to affect any recovery of excess payment and further directing them not to disturb pay scale of the petitioner. (B) During the pendency and final disposal of this petition, the respondents may be directed not to affect recovery from the petitioner. (C) To grant such and further relief as may be deemed fit and proper.” 3.1. Mr. Samir B. Gohil, learned advocate appearing for the petitioner submits that, the petitioner herein is a Class-III employee and places reliance on the ratio laid down by the Hon’ble Apex Court in the case of State of Punjab & Ors. (C) To grant such and further relief as may be deemed fit and proper.” 3.1. Mr. Samir B. Gohil, learned advocate appearing for the petitioner submits that, the petitioner herein is a Class-III employee and places reliance on the ratio laid down by the Hon’ble Apex Court in the case of State of Punjab & Ors. vs. Rafiq Masih, reported in 2015 (4) SCC 334 , wherein, the Hon’ble Apex Court has held that recovery of excess amount / payment made to the Class-III employee is not permissible. 3.2. Mr. Samir B. Gohil, learned advocate, also placed reliance on Rule-28(2) of the Gujarat Civil Services (Pay) Rules, 2002, wherein, the said Rules states that no recovery can be made, if there is no fraud or misrepresentation on the part of the employee. 3.3. Placing reliance on the aforesaid submissions, it is submitted that, the petitioner was granted 1st higher pay scale of Rs.5000-8000 as per the government resolution dated 02.07.2007. The petitioner has neither made any fraud or misrepresentation, and in view thereof, the petitioner herein is governed by the Rule-28(2) of the Gujarat Civil Services (Pay) Rules, 2002. It is submitted that, the impugned communication is also in gross violation of the principles of natural justice, wherein, while issuing the impugned communication, no opportunity of hearing is granted to the petitioner herein, though, the petitioner is adversely affected by the impugned order of recovery dated 05.10.2016. 3.4. Placing reliance on the aforesaid, it is submitted that, the impugned order dated 05.10.2016 of recovery is required to be quashed and set aside. 4.1. Per contra, Ms. Pooja Ashar, learned Assistant Government Pleader appearing for the respondent – State, relied on the affidavit in reply filed by the respondent – authorities, which is duly produced at Page-28 and placing reliance on the contentions raised in the said reply, more particularly, para-6 of the said reply, it is submitted that the petitioner submitted Patrak-3, indicating that the petitioner was eligible for grant of the pay scale of Rs.5000-150-8000 (Annexure-1 to the reply) and has furnished Undertaking as per Schedule-4 (Annexure-2 to the reply), wherein, it is undertaken that the State Government would be entitled to recover the excess payment, if any, that would be made to the petitioner. 4.2. Ms. 4.2. Ms. Ashar, learned AGP, placed reliance on the ratio laid down by the Hon’ble Apex Court in the case of High Court of Punjab and Haryana and others vs. Jagdev Singh reported in 2016 (14) SCC 267 , wherein, it is held that, when the concerned employee was put to notice and furnished undertaking, the excess payment would be required to be refunded and the employee would be bound by such undertaking. 4.3. Placing reliance on the aforesaid submissions, it is submitted that the prayers as prayed for, are such that the same may not be granted, as the petitioner herein has erroneously represented and in view thereof, no interference is called for, in the present petition for the prayers as prayed for. 5.1. Mr. Samir B. Gohil, learned advocate appearing for the petitioner, in rejoinder, has relied on the decision of this Court in the case of Harishchandra Jagannath Brahmbhatt v/s. State of Gujarat reported in 2019 (3) GLH 498 , and has relied on para-12 and 13 and submitted that in the aforesaid decision, the ratio laid down in Jagdev Singh (supra) is followed and the same is read with Rule-28(1) and (2) of the Rules, 2002, wherein, in the said decision, it is held that, in absence of any misrepresentation or fraud on the part of the employee, Rule-28 postulates that it is erroneous to recover from the employee and in view thereof, submitted that the prayers as prayed for, may be allowed. 6.1. Having heard the learned advocates appearing for the respective parties, it emerges that the petitioner herein was appointed as Librarian on 20.02.1990 and was serving at Dudhiya High School, Limkheda since 1990. The petitioner was granted 1st higher pay scale of Rs.5000-8000, w.e.f. 20.02.1999 as per the government resolution dated 02.07.2007. When the petitioner reached the stage of 2nd higher pay scale, the school sent proposal to the respondent no.2 for granting the same, which is duly produced at Annexure-A. The respondent no.2 returned the said proposal objecting vide letter dated 07.11.2016, which is duly produced at Annexure-B. By communication dated 05.10.2016, the respondent no.2 directed to initiate the recovery of the excess amount paid to the petitioner, while extending the benefit of 1st higher pay scale of Rs.5000-8000, w.e.f. 20.02.1999. The aforesaid undisputed facts are required to be considered, in line of the position of law, which reads thus: A. In the case of State of Punjab & Ors. vs. Rafiq Masih, reported in 2015 (4) SCC 334 , wherein, the Hon’ble Apex Court has held as under: “12. 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. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” B. In the case of the High Court of Punjab and Haryana and others vs. Jagdev Singh reported in 2016 (14) SCC 267 , wherein, the Hon’ble Apex Court in Para-10 has held as under: “10. In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc, (2015) 4 SCC 334 , this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law: "(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover." (emphasis supplied).” C. The Hon’ble Apex Court has also further considered the same in the case of Thomas Daniel v/s. State of Kerala & Ors., reported in 2022 SCC OnLine 536, relevant para-18, reads thus: “18. In State of Punjab and Others v. Rafiq Masih (White Washer) and Others, (2015) 4 SCC 334 wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus: "8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. xxx xxx xxx 18. 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. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover." D. It is also apposite to refer to the ratio laid down by the Hon’ble Division Bench in case of J.H. Champavat vs. State of Gujarat reported in 2009 (4) GLR 3328 , wherein, the Hon’ble Division Bench has held in para-7 to 11, which read thus: “7. Mr. Upadhyay, learned counsel for the petitioner, has submitted that the petitioner's pay was fixed at Rs.11,300/- by order dated 8th May, 1998 (Annexure-B to the petition); that the post of Civil Judge (Junior Division) carried higher duties and responsibility as compared to the duties and responsibilities of the Stenographer, which post the petitioner was holding. Mr. Upadhyay, learned counsel for the petitioner, has submitted that the petitioner's pay was fixed at Rs.11,300/- by order dated 8th May, 1998 (Annexure-B to the petition); that the post of Civil Judge (Junior Division) carried higher duties and responsibility as compared to the duties and responsibilities of the Stenographer, which post the petitioner was holding. It is submitted that the said fixation was done by the learned District Judge, Kheda at Nadiad. The petitioner had not made any misrepresentation nor the petitioner had suppressed any fact at the relevant time. Strong reliance is placed on the decision of the Division Bench of this court rendered on 4th April, 2001 in Letters Patent Appeal No.578 of 2000 [I.C.Patel vs. Gujarat Housing Board] and also on the decision of the Three Judge Bench of the Apex Court in P.H.Reddy & Ors. vs. N.T.R.D. & Ors [2002 (2) Services Law Reporter 694] in support of the contention that even if the appropriate authority had erroneously fixed the salary of an officer, subsequently even if the salary could be correctly re-fixed, the officer should not be asked to repay the excess pay drawn when there was no fault on the part of the petitioner officer. Mr. Upadhayay has further relied on the provisions of Rule 57A sub-rule (ii) of the Bombay Civil Services Rules; 1959 and Rule 28(2) of the Gujarat Civil Services (Pay) Rules; 2002. 8. Mr. Pardiwala, learned standing counsel for the High Court on the administrative side and for the Principal Judge, City Civil Court, Ahmedabad, has submitted that in view of the aforesaid statutory provisions and judicial pronouncements, appropriate orders may be passed. 9. Mr. Nikunt Raval, learned AGP for the State of Gujarat and auditors in the office of Director of Accounts & Treasuries (i.e. respondent Nos.1 to 4), has submitted that since the re-fixation by the impugned order dated 3rd June, 2004 is not challenged, the respondents would be justified in ordering recovery of the excess amounts paid in the past. In reply to a specific query from the court as to whether the petitioner was at fault or was responsible for the so-called erroneous fixation of the pay in the year 1998 both the learned AGP and Mr. Pardiwala fairly stated that no such fault or misrepresentation could be attributed to the petitioner. 10. In reply to a specific query from the court as to whether the petitioner was at fault or was responsible for the so-called erroneous fixation of the pay in the year 1998 both the learned AGP and Mr. Pardiwala fairly stated that no such fault or misrepresentation could be attributed to the petitioner. 10. Having heard the learned counsel for the parties, this Court finds considerable substance in the submission made on behalf of the petitioner that even if the fixation of the petitioner's pay in the year 1998 was erroneous, since the petitioner himself was not at fault nor had he made any misrepresentation, the so-called excess amount paid to the petitioner for the period between 16th January, 1996 and May, 2004 cannot be permitted to be recovered. Rule 57(A)(ii) of the Bombay Civil Services Rules, 1959 and Rule 28 of the Gujarat Civil Services (Pay) Rules; 2002 are in similar terms. It would, therefore, suffice to quote Rule 28 of the Gujarat Civil Services (Pay) Rules; 2002, which reads as under :- “28. Pay when promotion or appointment is found to be erroneous: (1) Notwithstanding the provisions contained in these rules, the pay of a Government employee whose promotion or appointment to a post is found to be or to have been erroneous on the basis of facts, e.g. incorrect seniority, failure to apply any relevant rules or orders correctly, shall be regulated in accordance with the general or special orders issued by the Government in this behalf. (2) When any rule or order regulating pay is made with retrospective effect, the pay of a Government employee affected by such order or rule, shall be fixed notionally as if the rule or order were applicable in his case but the Government employee concerned shall not be called upon to refund the resultant amount of over payment on account of pay and allowances; Provided that in the case where the erroneous promotion or appointment was given on the basis of false information furnished by the concerned Government employee; departmental action shall be taken against him and the resultant amount of overpayment on account of pay and allowances shall also be recovered from him.” (emphasis supplied). 11. 11. It is clear from the above Rules that where the erroneous fixation of pay was done without any false information having been furnished by the concerned employee, the employee shall not be called upon to refund the resultant amount of overpayment. Similar legal principle is enunciated by the Hon'ble Supreme Court in P.H.Reddy & Ors. v/s. N.T.R.D. & Ors [2002 (2) Services Law Reporter 694] wherein a Three Judge Bench of the Hon'ble Supreme Court has held that even where the order of re-fixation done by the appropriate authority does not require any interference, but the employees, who had been in receipt of a higher amount on account of erroneous fixation by the authority, should not be asked to re-pay the excess pay drawn. The Apex Court set aside that part of the order of the authority by which such recovery was sought to be made.” E. In the case of Harishchandra Jagannath Brahmbhatt vs. State of Gujarat reported in 2019 (3) GLH 498 , relevant paras-12 and 13 reads thus: “12. In the given facts of the case, it would, be suffice to quote Rule 28 of the Gujarat Civil Services (Pay) Rules; 2002, which reads as under :- "28. Pay when promotion or appointment is found to be erroneous: (1) Notwithstanding the provisions contained in these rules, the pay of a Government employee whose promotion or appointment to a post is found to be or to have been erroneous on the basis of facts, e.g. incorrect seniority, failure to apply any relevant rules or orders correctly, shall be regulated in accordance with the general or special orders issued by the Government in this behalf. (2) When any rule or order regulating pay is made with retrospective effect, the pay of a Government employee affected by such order or rule, shall be fixed notionally as if the rule or order were applicable in his case but the Government employee concerned shall not be called upon to refund the resultant amount of overpayment on account of pay and allowances; Provided that in the case where the erroneous promotion or appointment was given on the basis of false information furnished by the concerned Government employee; departmental action shall be taken against him and the resultant amount of over payment on account of pay and allowances shall also be recovered from him.(emphasis supplied)." At this stage, it would be apposite to refer to the observations made by the Division Bench in the judgment dated 17.07.2019 passed in Letters Patent Appeal No.1400 of 2019. The Division Bench after considering the judgment of the Supreme Court in the case of State of Punjab Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334 as well as the judgment cited by the learned Assistant Government Pleader in the case of High Court of Punjab and Haryana Vs. Jagdev Singh, reported in (2016) 14 SCC 267 while dealing with the similar issue and facts has observed thus: “5. Having regard to the facts and circumstances of the case and the submissions made by learned Assistant Government Pleader in the context of the finding of the learned Single Judge about recovery ordered to be initiated from the respondent, a Class-III employee, principles laid down in the case of Rafiq Masih (supra) were applied by learned Single Judge in the order impugned, which read as under: “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. Be that as it may, based on the decisions referred hereinabove, we may, as a ready reference, summarise the following new situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service); (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery; (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued; (iv) Recovery in case where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post; (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.” (Para 18)” 6. What is important to be seen is that recovery that is ordered in the case of Class-III and Class-IV employees (or Group-C and Group services), stands on different footing and about the recovery from the retired employees, or the employees who are due to retire within one year, as the case may be. In the present case, admittedly, the respondent employee is Class-III employee and he succeeded before the Gujarat Civil Services Tribunal, which has assigned just reasons to quash and set aside the order of recovery of dues of Rs.85,927/- by considering the Government Resolution dated 16.8.1994 in the context of Rule 28(1) and (2) of the Gujarat Civil Service Rules, where provisions are made about the powers conferred upon the authority under the circumstances in which pay and recovery of excess payment can be considered upon erroneous or incorrect seniority, failure to apply any relevant rules or orders correctly. Even the Government Resolution dated 16th August, 1994 is about grant of revised higher pay scale to employees in the absence of promotional avenues or limited scope of promotion, so that employees are not demoralized or stagnated in particular cadre/post. Even the Government Resolution dated 16th August, 1994 is about grant of revised higher pay scale to employees in the absence of promotional avenues or limited scope of promotion, so that employees are not demoralized or stagnated in particular cadre/post. When the respondent employee was considered for pay scale of Rs.5000-8000 instead of Rs.4500-7000, the fact remains that earlier he was given promotion about which the authorities were aware of. Under the circumstances, it cannot be said that respondent, a Class-III employee, misrepresented his case by giving such undertaking for which recovery could be ordered. It is stated by learned counsel for the respondent that subsequently, the respondent-original petitioner became entitled to receive pay scale of Rs.5000-8000 and was given salary accordingly. We are inclined to accept such submission and do not pass any order in that regard.” 13. The Division Bench has observed that it cannot be said that a Class-III employee, misrepresented his case by giving such undertaking at the time of grant of higher pay scale for which recovery could be ordered. The Division bench while considering the provisions of Rule 28(1) and (2) of the Pay Rules, 2002 vis a vis incorrect fixation of higher pay scale and the undertaking has dismissed the letters patent appeal filed by the state. The stand taken by the respondents that the provision of Rule 28 of the Pay Rules, 2002 do not apply in the case of the grant of higher pay scale is misconceived since the benefits of higher pay scale is conferred to the employees in lieu of promotion when they get stagnated in service. Furthermore, an undertaking given by an employee cannot be used against him in light of the statutory provision. Such an undertaking cannot dilute the mandate of Rule 28 which bars recovery if there is erroneous fixation of pay by the state authorities. The Rule also postulates of initiation of departmental proceedings against an employee who gives false information. Thus, an undertaking given by an employee cannot be used at his detriment if the pay is fixed erroneously by the state authorities and there is no fault or misrepresentation of the employee.” F. At this stage, it is apposite to refer to Rule-28 of the Gujarat Civil Services (Pay) Rules, 2002, which reads thus: "28. Thus, an undertaking given by an employee cannot be used at his detriment if the pay is fixed erroneously by the state authorities and there is no fault or misrepresentation of the employee.” F. At this stage, it is apposite to refer to Rule-28 of the Gujarat Civil Services (Pay) Rules, 2002, which reads thus: "28. Pay when promotion or appointment is found to be erroneous: (1) Notwithstanding the provisions contained in these rules, the pay of a Government employee whose promotion or appointment to a post is found to be or to have been erroneous on the basis of facts, e.g. incorrect seniority, failure to apply any relevant rules or orders correctly, shall be regulated in accordance with the general or special orders issued by the Government in this behalf. (2) When any rule or order regulating pay is made with retrospective effect, the pay of a Government employee affected by such order or rule, shall be fixed notionally as if the rule or order were applicable in his case but the Government employee concerned shall not be called upon to refund the resultant amount of overpayment on account of pay and allowances; Provided that in the case where the erroneous promotion or appointment was given on the basis of false information furnished by the concerned Government employee; departmental action shall be taken against him and the resultant amount of over payment on account of pay and allowances shall also be recovered from him.(emphasis supplied)." G. It is apposite to refer to para-6 of the affidavit in reply filed by the respondent – State, which read thus: “6. I state that the Petitioner was appointed librarian on 20.02.1990 and was eligible to be granted the first higher pay scale of 4500-125-7000 from 1999. However, at this stage, the Petitioner submitted Patrak-3 (Copy at Annexure-1 hereto) indicating that he was eligible to be granted the pay scale of 5000-150-8000. The Petitioner also furnished undertaking Schedule-4 (Copy at Annexure-2 hereto) stating that the State Government would be entitled to recover excess payment, if any that would be made to the Petitioner.” G.1. In the said para-6, the respondent – State has attributed misrepresentation to the petitioner that it is the petitioner, who has submitted Patrak-3, and therefore, the position of law as laid down by the Hon’ble Apex Court, is stated to be governing the petitioner on the ground of misrepresentation. In the said para-6, the respondent – State has attributed misrepresentation to the petitioner that it is the petitioner, who has submitted Patrak-3, and therefore, the position of law as laid down by the Hon’ble Apex Court, is stated to be governing the petitioner on the ground of misrepresentation. This Court has perused Patrak-3, which is produced on record, at page-34, which is affirmed and signed by the Head Master and the Pay & Account Officer of the respondent – State. The aforesaid contention which is so heavily relied upon by the respondent – State, accordingly is negated. 6.2. On 02.05.2017, this Court while issuing Rule, granted interim relief in terms of Para-11(B), the said order reads thus: “Heard learned advocates for the parties. RULE returnable on 25.7.2017. Learned AGP waives service of notice of Rule on behalf of the respondent – State only on receipt of full set of pleadings within two days, if not provided till date. Interim Relief is granted in terms of Paragraph 11(B) till then. Parties shall complete their pleadings before the returnable date. Direct Service is permitted upon rest of the respondent/s.” 6.2. This Court has perused all the documents that are placed on record by the respondent- State, wherein, the said anomaly, which has occurred in grant of 1st higher pay scale to the petitioner for Rs.5000-8000 is duly signed by the school and the State authorities. In the opinion of this Court, the misrepresentation or fraud cannot be attributed to the petitioner, on perusal of the documents that are produced on record. Further, the aforesaid action is also undertaken, without following cardinal principles of natural justice. The petitioner herein is adversely affected by the impugned communication, which is issued by the respondent – State, wherein, recovery is ordered to be affected by the impugned order dated 05.10.2016. 6.3. In the opinion of this Court, the impugned order dated 05.10.2016 is required to be interfered with, the same being in violation of the cardinal principles of natural justice. It is, by now, well settled principle of law that any action that is undertaken and adverse to a person, cardinal principles of natural justice are required to be followed. 7. In the opinion of this Court, the impugned order dated 05.10.2016 is required to be interfered with, the same being in violation of the cardinal principles of natural justice. It is, by now, well settled principle of law that any action that is undertaken and adverse to a person, cardinal principles of natural justice are required to be followed. 7. Further, in the opinion of this Court, the case of the petitioner is squarely covered by the position of law, as referred above, and Rule-28 of the Gujarat Civil Services (Pay) Rules, 2002, wherein, only if there is any misrepresentation, the recovery can be affected. In view of the aforesaid findings as recorded above, the respondents have failed to prove the aforesaid and therefore, the impugned order dated 05.10.2016 passed by the respondent no.3 is quashed and set aside and the prayers as prayed for, are required to be allowed and the same are allowed accordingly. The petition stands allowed accordingly. Rule is made absolute. Direct service is permitted.