1. Heard Mr. Neeraj Soni learned A.G.P. for the petitioner-State Authorities and Mr. A.S. Supehia, learned counsel for respondent- original applicant before the Tribunal. Mr. Vyas, respondent, is present in the Court and is also heard at length.
2. Having heard learned counsel for the parties and having gone through the record, the facts which emerge are as under.
3. The respondent no.1 retired on attaining the age of superannuation in April 2003. While he was in service, on 4.4.1997, the Office of the Commissioner of Fisheries, Gandhinagar passed an order whereby, it was ordered to the effect that, because of wrong fixation of pay at the time of grant of Higher Grade Scale, an amount of Rs.20,431/- is paid in excess to the petitioner and the same was ordered to be recovered from petitioner, in 72 monthly installments.
4. The said order of Commissioner of Fisheries was challenged by respondent no.1 before the Gujarat Civil Services Tribunal by Appeal no.202 of 1997, which came to be allowed by the Tribunal vide order dated 14.10.2002. The operative part of the said order read as under:-
“The appeal is allowed. The impugned order of the respondent is upheld so far as fixing first higher grade in the scale of Rs.1640-2900 is concerned. Recovery order passed by the respondent is set aside and quashed. The respondent is directed not to recover excess amount paid to the appellant as discussed in the body portion of the judgment under Rule 57-A (ii) of the Bombay Civil Service Rules.
The respondents shall be at liberty to refix pay by correcting mistake.”
The above order of the Tribunal is challenged by the State Authorities in this writ petition.
5. Learned A.G.P., Mr. Neeraj Soni vehemently contented that the respondent no.1 availed selection Scale and he was not entitled to Higher Grade Scale. It is also contended that the amount which was paid in excess was also liable to be refunded by him. He has contended that the order passed by the Tribunal is against the settled position of law and the same be interfered with by this Court.
6. On the other hand learned advocate for respondent-employee contended that he was entitled to atleast the Higher Grade Scale of Rs.1640-2900 which is upheld by the Tribunal. It is agitated that in spite of the fact that, it was the decision of the authorities to grant the
contended no recovery could have been ordered. Specific reference is made to Rule 57-A of B.C.S.R. to contend that even if it was held that the petitioner was not entitled to Higher Grade Scale, then also recovery could not be ordered.
7. Learned counsel for the respondent Mr.
Suphehia also raised a contention that this petition is not maintainable since the Tribunal has the status of the appellate authority and the head of the department is not competent to challenge the order of the Tribunal. It is contended that since on merits the authorities have no case and since the respondent is a senior citizen, the wider question of maintainability or otherwise of such petition can be gone into separately but let the petition be considered on merits and appropriate order be passed.
8. Having heard the parties and having gone through the record, including the pleadings before the Tribunal which are on record of this petition, I find that the Gujarat Civil Services Tribunal has not committed any error while passing the order which is impugned in this petition. I see no reason to interfere in the view taken by the Tribunal and this petition needs to be dismissed.
9. Consequently, the following order is passed:
(i) The higher grade scale of Rs. 1640-2900/- granted to the respondent, which is already upheld by the Tribunal but which is actually not paid to him because of pendency of this petition, shall be paid by the petitioner authority, expeditiously but not later than three months from today.
(ii) The amount of Rs.20,431/- which is already recovered by the authorities shall be refunded to the respondent within two months from today.
(iii) The petitioner shall be entitled to the cost of Rs.1,000/- which shall also be paid within two months from today.
Subject to above directions, rule is discharged.
Sd/-
ali/67 (PARESH UPADHYAY, J.)