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2024 DIGILAW 761 (GUJ)

Anil S. Jani v. Joint Secretary (Appelas)

2024-04-04

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. The petitioner has preferred present petition under Articles 14, 21 19 and 226 of the Constitution of India challenging orders dated 13.4.2012 and 18.6.2010 passed by the respondent Nos. 1 and 2 with below mentioned prayer/s:- "7(A) Your Lordships may be pleased to call for the record and proceedings of the Revision Application No. 414 of 2011 from the office of the Respondent No1, and after perusal of the same, be pleased to quash and set aside the orders dated 13.04.2012 and 18.06.2010 passed by the Respondent Nos. 1 and 2 herein, and further be pleased:- [i] to command the Respondent Nos. 3 and 4 to comply with the orders 03.06.2009 and 21.07.2008 passed by the Respondent Nos. 1 and 2 and; [ii] to repay to the petitioner the amount of Rs. 1,13,193/- illegally deducted by them, along with 18% interest per annum from 15.02.2006 till the date of its actual realisation; and [iii] to pay the arrears of third higher pay scale w.e.f. 01.03.2000, being on completion of 27 years in the same cadre without any opportunity of promotion or increase of salary/pay; (B) Pending the hearing and final disposal of the present Writ Petition, Your Honour may be pleased to direct the Respondent No.3 and 4 to invest the amount of Rs. 1,13,193/- with 18% interest as calculated from 15.02.2006 in a fixed deposit of a nationalized bank for such period as the Hon'ble Court deems fit; (C) Your Honour may be pleased to pass such other and further reliefs as the nature and circumstances of the case may require." 2. The brief facts giving rise to present petition are that the petitioner was initially working as Clerk with the erstwhile Devgadhbaria Agricultural Produce Market Committee since 01.07.1973, and on bifurcation of the said Market Committee, the petitioner herein was placed under the office of the Respondent No. 3 and 4 herein, i.e. Limkheda Agricultural Produce Market Committee till the age of superannuation i.e. 31.5.2010. 2.1 On 17.8.1992, a circular was issued by the Respondent No.1 extending benefit of the higher pay scale to the employees of the Agricultural Produce Market Committee [herein after referred to as "the APMC" for the sack of brevity and convenience). 2.1 On 17.8.1992, a circular was issued by the Respondent No.1 extending benefit of the higher pay scale to the employees of the Agricultural Produce Market Committee [herein after referred to as "the APMC" for the sack of brevity and convenience). 2.2 On the basis of the circular dated 17.8.1992, the Respondent No.4 issued an order on 28.10.1993 giving the benefit of the higher pay scale to the petitioner and the pay scale was fixed at Rs.1380/- with effect from 01.03.1982. Even at the end of the service of 18 years in the same cadre, as there was no promotional avenue, the petitioner was placed into the pay scale of Rs.1480/- with effect from 1.3.1991. 2.3 On 31.3.1995, the aforesaid circular dated 17.8.1992 was amended and the petitioner herein was given benefit of the second higher pay scale on completing service of 18 years. 2.4 Thereafter in April 2005, on account of the promotional avenue having been available, the petitioner herein was offered promotional post of Inspector and the petitioner has refused the said promotion. 2.5 Then vide order dated 15.02.2006, the Respondent No. 3 informed the petitioner that under the directions of the Deputy Director and District Registrar of Cooperative Societies, the pay scale of the petitioner herein was required to be revised and the Second Higher Pay Scale was to be recovered from the petitioner. The said Authority also reduced salary of the petitioner from Rs.11,308/- in the pay scale of Rs.5000-8000 to a meagre sum of Rs.7000/- per month w.e.f. September, 2005, under the garb of the refusal of the petitioner to accept the promotion. However, after moving before the this Court by way of Special Civil Application No. 3210 of 2007 on 24.12.2007, the learned Director, Agricultural Produce & Rural Economy was directed to decide the grievance of the petitioner afresh. Vide an order dated 21.7.2008, the Respondent No.2 was quashed and set aside the order dated 15.2.2006 and thus the recovery aspect has been deleted. 2.6 Against order dated 21.07.2008, Revision Application came to be preferred and vide an order dated 03.06.2009, the said Revision Application was rejected and the order passed by the Respondent No.2 came to be confirmed. Vide an order dated 21.7.2008, the Respondent No.2 was quashed and set aside the order dated 15.2.2006 and thus the recovery aspect has been deleted. 2.6 Against order dated 21.07.2008, Revision Application came to be preferred and vide an order dated 03.06.2009, the said Revision Application was rejected and the order passed by the Respondent No.2 came to be confirmed. 2.7 In view of the foregoing facts and circumstances of the case, the petitioner herein moved an application seeking implementation of the orders passed by the Respondent No.1 and 2 and instead of implementing the orders, the Respondent No.3 has raised objections. 2.8 The petitioner had also moved an application under Section 47 of the Act before the Respondent No.2 against the officer bearers of the APMC for implementation of the orders passed by the Respondent Nos. 1 and 2 respectively on or around 27.08.2009. 2.9 Though the above orders were passed by the competent authorities and same were not implemented by the Respondent No.3 and 4, the petitioner moved Special Civil Application No. 1554 of 2010, which came to be dismissed to avail of alternative remedy vide order dated 19.02.2010. 2.10 The petitioner had carried the said order by filing Letters Patents Appeal No. 1080 of 2010. On 06.09.2010 the said appeal came to be disposed of as withdrawn. 2.11 Subsequent to the aforesaid, the petitioner applied under the Right to Information Act. 2005, seeking several details in respect of his grievance, and the Respondent Nos. 3 and 4 intimated to the petitioner under the communication dated 29.06.2010 that they have already deducted the benefit of the Second Higher Pay Scale to the petitioner. 2.12 Thereafter, the petitioner herein had moved Special Civil Application No. 2113 of 2011 before this Court, inter alia challenging the orders dated 18.06.2010 and 29.06.2010, which came to be disposed off in terms of the order dated 09.03.2011 passed by this Court. 2.13 Since the petitioner herein was not paid back the amount recovered even after succeeding before the competent authorities, the petitioner was constrained to move an application before the Respondent No.1 challenging the order dated 18.06.2010 passed by the Respondent No.2 and also for implementation of the earlier orders passed and instead of directing the Respondent Nos. 3 and 4 to comply with the orders, the Respondent No.1 rejected the application. 3 and 4 to comply with the orders, the Respondent No.1 rejected the application. 2.14 In the backdrop of the aforesaid facts of the case, the petitioner herein is constrained to move this petition for quashing of the order dated 13.04.2012 passed by the Respondent No.1 and the order dated 18.06.2010 passed by the Respondent No.2. 3. I have heard Mr. Nirad D. Buch, learned Counsel for the petitioner, Mr. H.S. Munshaw, learned Counsel for respondent No. 4 and Ms. Dharitri Pancholi, learned Assistant Government Pleader for the respondent Nos. 1, 2 and 3. 4. Mr. Buch learned Counsel for the petitioner has submitted that the respondent authority has committed error while interpreting clause 15 of the Circular dated 31.3.1995. Mr. Buch learned Counsel for the petitioner has further submitted that at the first instance the authority has rightly passed the order in favour of the petitioner and quashed the action of the respondent for recovery of the amount of Rs.1,13,193/- and when the petitioner went before the authority for releasing the said amount again the authority has restarted the proceedings and rejected the request of the petitioner and therefore, second round of litigation is commenced. 4.1 Mr. Buch, learned Counsel for the petitioner further submitted that the impugned orders are bad in law and erroneous. Mr. Buch learned Counsel for the petitioner has submitted that when a person has been given benefit without there being his misrepresentation, fraud, malpractice etc., the benefit received by the person cannot be recovered under any reason. 5. On the other hand Mr. Munshaw, learned Counsel for the respondent No.4 and Ms. Dharitri Pancholi, learned Assistant Government Pleader for respondent Nos. 1, 2 and 3 have objected the petition. Respondent No.4 has filed an affidavit-in-reply and referred to and relied upon the circular dated 31.3.1995. 6. Mr. Munshaw, learned Counsel for the respondent No.4 has submitted that after evaluating the evidence and after taking into account relevant aspects, respondent Nos. 1 and 2 have passed orders dated 13.4.2012 and 18.6.2010. Mr. Munshaw, learned Counsel for the respondent No.4 has submitted that since the benefit was wrongly granted to the petitioner, the same is required to be recovered from the petitioner and therefore, present petition filed by the petitioner may not be entertained and the same may be dismissed. 7. I have considered the submissions canvassed by learned advocates appearing for the respective parties. 7. I have considered the submissions canvassed by learned advocates appearing for the respective parties. I have also gone through the relevant material including relevant circular issued by the Government. 8. It appears that the first order passed against the petitioner for recovery of the excess amount which was paid to the petitioner was challenged by the petitioner before this Court by way of preferring Special Civil Application No. 3210 of 2007 and the Court has disposed of the said petition with an observation that the petitioner will approach the respondent authority - Director of Agriculture Market and Rural Economy. In view of the same the petitioner approached the respondent authority by way of preferring representation dated 13.2.2008 and on the said representation the respondent authority has passed the order and quashed the impugned order or recovery on 21.7.2008. The said order came to be challenged before the Deputy Secretary (Appeals) Agriculture and Cooperation Department, Gandhinagar being file No. APM/15/2008/159/chh and the same came to be rejected by the authority on 3.6.2009. In response thereto the petitioner approached the Administrate, Agricultural Produce Market Committee by way of representation in August 2008 for recovery of the amount which was deducted by the APMC in light of the order passed by the authority on 3.6.2009 with 12% interest. 9. In the interregnum period the petitioner had approached this Court by way of preferring Special Civil Application No. 2113 of 2011. The said petition came to be disposed of as withdrawn by this Court vide order dated 9.3.2011 which reads as under:- "Mr.Nirad D.Buch, learned advocate for the petitioner prays that he may be permitted to withdraw the petition, with a view to availing the alternative remedy. Permission to withdraw the petition, is granted. The petition is disposed of, as withdrawn." 10. Then, the petitioner approached Deputy Director and District Registrar of Cooperative Societies and said authority has passed impugned order dated 13.4.2012. Hence, against the orders of both the authorities rejecting the request of the petitioner, the petitioner has approached this Court. 11. It is pertinent to note herein that the authority has committed mistake in interpreting the circular dated 31.3.1995. Then, the petitioner approached Deputy Director and District Registrar of Cooperative Societies and said authority has passed impugned order dated 13.4.2012. Hence, against the orders of both the authorities rejecting the request of the petitioner, the petitioner has approached this Court. 11. It is pertinent to note herein that the authority has committed mistake in interpreting the circular dated 31.3.1995. It is appropriate to take into account the circular dated 31.3.1995 which reads as under:- "(15) Every employee getting benefit of the higher pay scale under this scheme shall give written undertaking as per Schedule-2 of this Circular that when he will be entitled for promotion, he would not deny it. Whoever has waived promotion for any reason, benefit under this scheme will not be given to him. When he becomes entitled for promotion and does not accept it for any reason, he shall have to waive the benefit of promotion under this scheme and he will be reverted to his original lower pay scale. If he has not got benefit of higher pay scale under this scheme, he will get the salary, receiving under original lower pay scale. Inspite of that, in case of reversion in original pay scale, no recovery would be made for the period, in which the employee has received salary and allowance in higher pay scale. If any employee has not accepted the promotion given to him before 05/07/91 for any reason, but other conditions of this modified resolution are fulfilled, benefit of higher pay scale can be given to him. Whoever has waived the promotion for any reason after 05/07/91, be it personal reasons, illness, administrative reasons or any other, benefit of higher pay scale will not be given to him." 12. It appears from the above circular that in case of refusal of promotion by the person, he is not entitled the benefit of higher pay scale and for that the concerned person has to file an undertaking before an authority and in case of reversion in original pay scale, no recovery would be made for the period, in which the employee has received salary and allowance in higher pay scale. 13. Relying upon such circular the respondents have initiated recovery on the ground that the petitioner has refused to accept the promotion. Hence, the recovery of excess amount received by the petitioner during so called period was made. 14. 13. Relying upon such circular the respondents have initiated recovery on the ground that the petitioner has refused to accept the promotion. Hence, the recovery of excess amount received by the petitioner during so called period was made. 14. It appears that while interpreting clause 15 of the circular, the respondents have committed a mistake. In fact it is clearly mentioned in the said circular that the recovery cannot be sought for in case of a person who refuse to accept the promotion and during the period which he has worked on higher post and earned salary for the higher post, no recovery can be made. Instead of "not to be recovered" from the person, the authority has interpreted that "it is to be recovered" from the person. Inspite of aforesaid fact, the recovery is made by the respondents and rejected the claim of the petitioner by way of impugned orders and therefore, the impugned action of the respondent is illegal and erroneous. 15. Respondent No.4 has produced original circular and the Court has examined the original circular with the help of the learned Assistant Government Pleader and while going through the original circular, it is made clear that the recovery was not permitted by the authority and therefore, the impugned action of the respondents is erroneous, illegal and against the provision of the said circular on the basis of which the respondents have made recovery of Rs.1,13,193/- from the petitioner. 16. Therefore, in my view, impugned order dated 13.4.2012 passed by Deputy Director and District Registrar of Cooperative Societies and order dated 18.6.2010 passed by Director of Agriculture Market and Rural Economy deserve to be quashed and set aside 17. Accordingly, order dated 13.4.2012 passed by Deputy Director and District Registrar of Cooperative Societies and order dated 18.6.2010 passed by Director of Agriculture Market and Rural Economy are hereby quashed and set aside. 18. In view of the above, respondent No.4 is hereby directed to make payment of said amount to the petitioner which was deducted from the retiral dues of the petitioner with 6% interest from the date of recovery till the actual payment within period of 8 weeks from the date of receipt of copy of present order. 19. With aforesaid observations, present petition is allowed. Rule is made absolute. Direct service is permitted.