ORDER : BHARGAV D. KARIA, J. 1. Heard learned Assistant Government Pleader Ms.Shruti Dhruve for the appellants-State and learned advocate Mr.N.K.Majmudar for the respondents. 2. By this Appeal under Clause 15 of the Letters Patent, 1865, the appellants-State have challenged the common Judgment and Order dated 24th October, 2024, whereby, the Writ Petitions filed by the respondents are allowed by directing the appellant-State Authority to revise their First higher grade pay scale. 2.1 These Appeals require consideration and hence, the same are Admitted and having regard to the controversy in narrow compass, with the consent of the learned advocates for the parties, the same are taken up for hearing today. 3. The brief facts of the case are as under: 3.1. As per the Government Resolution dated 16.08.1994, when no promotional avenues are available with the Government Employee, higher grade pay scale is provided on fulfilling the conditions stipulated in the said Government Resolution. According to the terms of the Government Resolution dated 16.08.1994, the First higher grade pay scale is to be given on completion of nine years of service as on 01.01.1996. 3.2. Admittedly, the respondents-original petitioners have not completed nine years of service as on 01.01.1996 as Gram Sevaks. 3.3. The State Government by Government Resolution dated 07.01.1998 applied the revision of pay scale on the recommendation of the 5th Pay Commission. Accordingly, the pay scales were revised on scale-to-scale basis. Admittedly, the respondents-original petitioners were in the pay scale of Rs. 1200- 2040 and the pay scale on scale-to-scale basis was revised to Rs. 4000-6000 being corresponding pay scale. On perusal of the applicable revised pay scale schedule, it appears that for three scales of Rs.1200-2040, Rs.1320-2040 and Rs.1200-1800, revised pay scale is prescribed as Rs.4000-6000 with effect from 01.01.1996. Accordingly, the pay scale of the petitioners was revised to Rs.4000-6000. 3.4. By Government Resolution dated 14.08.1998, in view of the amendment of the Gujarat Civil Services (Revision of Pay) Rules, 1998 (for short ‘the Rules’), the basic pay scale was revised with effect from 1st January 1996 as per the recommendations of the 5th Pay Commission. Accordingly, the Government Resolution dated 16.08.1994 was revised to provide the higher scale with effect from 1st January 1996. As per the Government Resolution dated 14.08.1998 pursuant to the Rules, the 1st higher pay scale of Rs.4000-6000 is provided as Rs. 4500-7000 (page No.120 of the petition). 3.5. Accordingly, the Government Resolution dated 16.08.1994 was revised to provide the higher scale with effect from 1st January 1996. As per the Government Resolution dated 14.08.1998 pursuant to the Rules, the 1st higher pay scale of Rs.4000-6000 is provided as Rs. 4500-7000 (page No.120 of the petition). 3.5. Accordingly, a Government Resolution was issued on 7th December, 2013 by the Panchayat and Rural Housing Department to prescribe the First higher grade pay scale of Rs. 5000-8000 for the Government Employees who have completed nine years of service as on 01.01.1996, whereas, admittedly, the Government Employees who have completed nine years of service after 01.01.1996, their pay scales were revised to Rs.4000-6000 and as per the Government Resolution dated 14.08.1998, their First Higher grade scale would be Rs.4500-7000. 3.6. In view of the above undisputed facts emerging from the record and the amendment of the Rules, the consequential Government Resolutions for granting First higher grade pay scale were issued from time to time. 4. In view of above facts, the respondents- original petitioners were not entitled to the First higher grade pay scale of Rs.5000-8000 as claimed by them, but they were only entitled to the First higher grade pay scale of Rs.4500-7000 as their pay was revised in the pay scale of Rs. 4000-6000 as on 01.01.196 and accordingly, the First higher grade pay scale to be paid to the respondents-original petitioners would be Rs. 4500-7000 as per the Government Resolution dated 14.08.1998. 5. It is pertinent to note that the respondents-original petitioners have not challenged the Rules and therefore, the respondents-original petitioners were admittedly, in the pay scale Rs. 4000-6000 as on 01.01.1996 and corresponding higher grade pay scale revised by the Government Resolution dated 14.08.1998 would be applicable in the case of the respondents-original petitioners who have completed nine years of service after 01.01.1996 and accordingly, there is no anomaly in awarding the First higher grade pay scale of Rs. 4500-7000 to the respondents- original petitioners who have completed nine years of service after 01.01.1996. 6. Learned Assistant Government Pleader Ms. Shruti Dhruve for the appellant-State therefore submitted that the learned Single Judge ought not to have allowed the petitions by directing the State Authority to pay the First higher grade pay scale of Rs. 5000-8000 to the respondents-Gram Sevaks, who have completed nine years of services after 01.01.1996. 7.1. 6. Learned Assistant Government Pleader Ms. Shruti Dhruve for the appellant-State therefore submitted that the learned Single Judge ought not to have allowed the petitions by directing the State Authority to pay the First higher grade pay scale of Rs. 5000-8000 to the respondents-Gram Sevaks, who have completed nine years of services after 01.01.1996. 7.1. Learned advocate Mr.N.K.Majmudar appearing for the respondents-original petitioners submitted that only because the respondents-original petitioners have completed nine years of service after 01.01.1996, they could not have been discriminated qua the other similarly situated employees who have completed nine years of service prior to 01.01.1996, in view of the revision of the pay scale and hence, the respondents-original petitioners have rightly been awarded the same higher grade pay scale of Rs. 5000-8000 irrespective of their completion of nine years service as on 01.01.1996. 7.2. It was further submitted that in the case of the employees of the Education Department, the Government Resolution dated 12.10.2022 is issued by the State Government whereby, to the Teachers of the Primary Schools, irrespective of their completion of nine years service as on 01.01.1996, the same First higher grade pay scale of Rs. 5000-8000 and corresponding higher grade pay scale in the 6th pay commission i.e. of Rs.9300-34800 in grade pay 4200 was granted. It was therefore submitted that there is a clear discrimination and also there is violation of Article 14 of the Constitution of India so far as the respondents-original petitioners are concerned. It was therefore submitted that the learned Single Judge has rightly allowed the First higher grade pay scale of Rs. 5000-8000 to the respondents-original petitioners, even though they have completed nine years of service after 01.01.1996. 8. Having heard the learned advocates for both the sides and while considering the facts of the case, in the first blush, it appears that there is an apparent discrimination between the government employees, who have completed nine years of service prior to 01.01.1996 and those, who have completed nine years of service after 01.01.1996. 9. Admittedly, the pay scale of Rs.1200-2040 was applicable to all the government employees prior to 01.01.1996 and thereafter, in view of the Government Resolution dated 7th January, 1998, the effect of the 5th Pay Commission was given to the existing pay scale with effect from 01.01.1996 and accordingly, the corresponding pay scale of Rs.1200-2040 was revised to Rs. 4000-6000. 10. Admittedly, the pay scale of Rs.1200-2040 was applicable to all the government employees prior to 01.01.1996 and thereafter, in view of the Government Resolution dated 7th January, 1998, the effect of the 5th Pay Commission was given to the existing pay scale with effect from 01.01.1996 and accordingly, the corresponding pay scale of Rs.1200-2040 was revised to Rs. 4000-6000. 10. By Government Resolution dated 20th January, 1998, the Rules were applied which provides for pay scale of Rs. 4000-6000 as per the 5th Pay Commission Recommendations (page No.109 of the petition). 11. Therefore, in view of such Rules, the basic pay of the respondents-original petitioners was Rs. 4000-6000 as on the date of coming into force of such Rules i.e. 01.01.1996. 12. The Government Resolution dated 14.08.1998 only amended the Government Resolution dated 16.08.1994 so as to revise the First higher grade pay scale as per the basic pay which has come into effect in view of the Rules and accordingly, the First higher grade pay scale, corresponding the basic pay of Rs.4000-6000, is prescribed at Rs.4500-7000. The rest of the conditions of the Government Resolution dated 16.08.1994 were not amended by the Government Resolution dated 14.08.1998. 13. Accordingly, the Government Resolution dated 7th December, 2013 was issued regarding the higher grade pay scale of the Gram Sevaks by the Panchayat and Rural Housing Department wherein, it is clarified that those who have completed nine years of service on 01.01.1996 were entitled to the First higher grade pay scale of Rs. 5000-8000, corresponding to the First higher grade pay scale of Rs.1400-2600 in relation to the basic pay of Rs. 1200-2040. Whereas, after 01.01.1996, in view of the Rules, the basic pay of Rs. 1200-2040 was revised to Rs. 4000-6000, for which by Government Resolution dated 14.08.1998, the First higher grade pay scale is prescribed at Rs. 4500-7000 and against the pay scale of Rs. 4500-7000, the First higher grade pay scale was revised to Rs. 5000-8000 and against the pay scale of Rs. 5000-8000, the higher grade pay scale was revised to Rs. 5500-9000. Therefore, for the respondents-original petitioners, who have completed nine years of service after 01.01.1996 and were getting the pay scale of Rs. 4000-6000, the first higher grade pay scale after 01.01.19996 was prescribed at Rs. 4500-7000 which is given by the appellant State Authority. 14. 5000-8000, the higher grade pay scale was revised to Rs. 5500-9000. Therefore, for the respondents-original petitioners, who have completed nine years of service after 01.01.1996 and were getting the pay scale of Rs. 4000-6000, the first higher grade pay scale after 01.01.19996 was prescribed at Rs. 4500-7000 which is given by the appellant State Authority. 14. If the claim made by the respondent-petitioners for higher grade pay scale of Rs. 5000-8000 is to be granted , it would amount to the higher grade pay scale corresponding to pay scale of Rs. 4500-7000 which would be second higher grade pay scale for them when they were entitled to the First higher grade pay scale of Rs. 4500-7000 after 01.01.1996. 15. The claim of the respondents-original petitioners is therefore, required to be rejected and accordingly, the Appeals are allowed. The impugned Judgment and Order dated 24.10.2024 passed by the learned Single Judge in Special Civil Application No.13916 of 2015 and other allied matters is hereby, quashed and set aside and the pay scale of the respondents-original petitioners, i.e. the members of the respondent-Association as well as the individual employees, who have preferred the petitions, is not liable to be revised as they were rightly been given the First higher grade pay scale of Rs.4500-7000 on completion of nine years of service after 01.01.1996. The Appeals are accordingly, allowed. No orders as to cost. 16. It is hereby clarified that in the decision of the Apex Court in case of State of Punjab Versus Rafiq Masih (whitewasher) etc., reported in (2015)4 SCC 334 , wherein it is 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. (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.” 17. In view of above dictum of law, if the appellants-State Government have revised the pay scale of the respondents-original petitioners, then in order to give effect to this order, the amount which is already paid shall not be recovered from the respondents-original petitioners. 18. In view of the common order passed in the Letters Patent Appeals, the contempt application i.e. Misc. Civil Application No.890 of 2025, would not survive as having become infructuous, as the Appeals are allowed quashing and setting aside the order of which the contempt is alleged and therefore, the Misc. Civil Application (for contempt) No.890 of 2025 is accordingly disposed of.