1. Both these petitions arise out of common orders dated 11.4.2002 and 10.5.2002 passed by the respondent No.3 and respondent No.1 respectively. Hence, the same were taken up for hearing together and are disposed of by this common judgment.
2. For the sake of convenience, reference is made to the facts as stated in Special Civil Application No.5267 of 2002. The petitioner in Special Civil Application No.5267 of 2002 (hereinafter referred to as “the first petitioner”) was appointed on the post of Work Charge Clerk on temporary basis by the respondent No.2 – Executive Engineer, Amreli in the pay scale of Rs.260 – 6 – 308/-. Subsequently by an order dated 15.5.1981, the petitioner was continued on the said post till further orders. By an order dated 14.6.1990 passed by the District Development Officer, Amreli, the petitioner along with six other employees of the Panchayat cadre was absorbed in the State cadre pursuant to which, the petitioner was relieved by the Deputy Executive Engineer on 6.9.1990 after office hours.
2.1 It is the case of the first petitioner that as per the rules and regulations of the Department, upon completion of ten years in service as Work Charge Clerk, the petitioner was entitled to be promoted on the post of Work Charge Assistant & Overseer and was, therefore, entitled to be sent for training for the said post. That it was the duty of the Department to send their employees for training. However, the respondents were not sending the first petitioner for training and therefore, the first petitioner addressed a letter dated 17.12.1997 to the third respondent making a request to send him for training pursuant to which, by an order dated 3.11.1998, the first respondent sent the first petitioner for training from 5.11.1998 to 19.11.1998. Upon completion of the training, the first petitioner joined the office at Amreli. The first petitioner was declared to have passed in the examination conducted by the third respondent on 17.8.1999. Subsequently by an order dated 15.10.1999 passed by the third respondent, the petitioner along with fifteen employees was given promotion to the post of Work Charge Assistant with effect from 15.10.1999 in the pay scale of Rs.4,000-100-6,000/-. Subsequently by the impugned order dated 11.4.2002, the date of giving effect of promotion to the post of Work Charge Assistant was changed from 25.2.1991 to 17.8.1999 in the case of the first petitioner, and from 21.5.1988 to 17.8.1999 in the case of the petitioner in Special Civil Application No.5268 of 2002 (hereinafter referred to as “the second petitioner”).
2.3 By the impugned order dated 10.5.2002, recovery was sought to be effected of the differential amount paid to the petitioners pursuant to the earlier orders dated 15.10.1999 appointing the petitioners to the post of Work Charge Assistant with retrospective effect. Being aggrieved, the petitioners have moved the present petitions challenging the aforesaid orders.
3. Mr. Minesh Parikh, learned counsel for the petitioners assailed the impugned orders submitting that the earlier order dated 15.10.1999 whereby the petitioners along with others had been appointed as Work Charge Assistants with retrospective effect, had been passed by the third respondent. In case there was any mistake in giving retrospective effect to the appointment of the petitioners, the petitioners were not in any manner at fault inasmuch as, it is not the case of the respondents that there was any misrepresentation on the part of the petitioners leading the third respondent to passing such orders. It was submitted that subsequently, when the impugned order dated 11.4.2002 amending the earlier order came to be made, the petitioners were not afforded any opportunity of hearing and as such, the said order stands vitiated on the ground of non-observance of the principles of natural justice. Now, by the order dated 10.5.2002, the differential amount paid to the petitioners is sought to be recovered. Thus, on the face of it, it is evident that the impugned orders have civil consequences and as such, it was incumbent upon the respondents to grant an opportunity of hearing to the petitioners before passing such orders.
3.1 Insofar as the recovery of the differential amount is concerned, the learned counsel has placed reliance upon the decision of the Supreme Court in the case of Syed Abdul Qadir and others v. State of Bihar and others, (2009) 3 SCC 475, for the proposition that if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous, the petitioner would be entitled to the relief against recovery of such excess payments of emoluments/allowances.
3.2 Inviting attention to the affidavit-in-reply filed on behalf of the respondents, it was pointed out that it is the case of the respondents themselves that the difference of arrears of pay for the period 25.2.1991 to 15.10.1999 was paid to the petitioners by misreading the order dated 15.10.1999 and under a bona fide mistake. Under the circumstances, the present case would be directly covered by the aforesaid decision and as such, the impugned orders are required to be quashed and set aside. Reliance was also placed upon the decision of this court in the case of Savdas Bhovan Julasana v. State of Gujarat and others, 1996(2) GCD 382 (Guj), for the proposition that any order which adversely affects civil rights of a person, which has been passed without affording an opportunity of hearing is in violation of the principles of the natural justice and is, therefore, invalid.
4. Opposing the petition, Ms. Shruti Pathak, learned Assistant Government Pleader invited attention to the averments made in the affidavit-in-reply filed on behalf of the respondents. It was submitted that it is settled law that if the Department by error grants some benefits in favour of someone and after realizing the said mistake or error such mistake or error is immediately corrected, then in such circumstances, it is not necessary to give a reasonable opportunity, nor are the principles of natural justice required to be observed. It was submitted that it is the duty of the petitioners to point out that on merits they are entitled by way of a legal or vested right to retain the amount paid under mistake on the basis of some statutory rules or resolution or some legal source. In the absence of any such right being established, the petitioners are not entitled to retain the amount wrongly paid to them on the principle of “no pay for no work”.
4.1 Next it was submitted that there was a bona fide mistake on the part of the Superintending Engineer whereby he had misread and misinterpreted the Government Resolution dated 9.7.1987 and promoted the petitioners and others, effective from the date of their completing ten years of service. As per condition No.3 stated in the Government Resolution, the candidate becomes eligible for being considered for promotion to the post of Work Assistant only if he has completed ten years of continuous service and has successfully completed the training. In the present case, the petitioners became eligible for being considered for the post of Work Assistant on 17.8.1999, that is, the day they passed the examination. The Superintending Engineer, accordingly, by the impugned order dated 11.4.2002, rectified the mistake committed and corrected the date of promotion and also directed recovery of the amount of arrears for the period for which the petitioners were not entitled to. It was urged that under the circumstances, the differential amount having been paid to the petitioners under a bona fide mistake, the petitioners are not entitled to the relief claimed in the petitions.
5. From the facts and contentions noted hereinabove, it is apparent that vide common order dated 15.10.1999, both the petitioners along with others were promoted to the post of Work Assistant in the pay scale of Rs.4,000 – 100 – 6,000/- with retrospective effect. The first petitioner was promoted with effect from 25.2.1991, whereas the second petitioner was promoted with effect from 23.5.1988. It appears that pursuant to the above order dated 15.10.1999, the amount of arrears came to be paid to the petitioners. It is the case of the respondents that the petitioners were not entitled to the benefit of promotion with retrospective effect inasmuch as they had not passed the training examination which was necessary for the purpose of grant of promotion. Accordingly, by the impugned order dated 11.4.2002, the earlier order dated 27.2.1999 came to be amended by changing the date of promotion from 25.2.1991 to 17.8.1999 in the case of the first petitioner and from 21.5.1988 to 17.8.1999 in the case of the second petitioner. Consequent to the aforesaid order dated 11.4.2002, by the impugned order dated 10.5.2002, the difference of arrears is sought to be recovered from the petitioners.
6. It is an undisputed position that prior to the passing of the order dated 11.04.2002, no opportunity of hearing has been given to the petitioners. According to the respondents, if there is any mistake in the grant of benefits, upon realizing such mistake, it is not necessary to grant any such opportunity of hearing. As can be seen from the order dated 15.10.1999, the petitioners were promoted to the higher post with retrospective effect and given benefits thereof. Under the circumstances, it goes without saying that any amendment in the said order adversely affecting the rights of the petitioners would visit the petitioners with civil consequences. It is settled legal position as held by this court in the case of Savdas Bhovan Julasana v. State of Gujarat and others (supra) that when an order affects the civil rights of a person, though the same may be an administrative order, the same should be passed after following the principles of natural justice. Any order, which adversely affects the civil rights of a person and is passed in violation of the principles of natural justice, is an invalid order. It cannot be gainsaid that the impugned order dated 11.04.2002 adversely affects the civil rights of the petitioners. Under the circumstances, such order which has been passed in breach of the principles of natural justice, is an invalid order and as such, cannot be sustained. Consequently, the impugned order dated 10.05.2002 which seeks to recover the differential amount from the petitioners on the basis of the order dated 11.04.2002 also would be rendered invalid and unsustainable.
7. Apart from the fact that in the light of the main order dated 11.04.2002 being rendered invalid, the order seeking to recover the differential amount on such basis is even otherwise unsustainable. As held by the Supreme Court in the case of Syed Abdul Qadir and others v. State of Bihar and others, (supra), if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous, the relief against recovery of such excess payments of emoluments/allowances can be granted. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess.
8. In the light of the above referred principles, undoubtedly, the excess amount had been paid to the petitioners not because of any misrepresentation or fraud on their part. The petitioners had no knowledge that the amount that was being paid to them was more than they were entitled to. In view of the order dated 15.10.1999 promoting the petitioners to the post of Work Assistant with retrospective effect, the petitioners were entitled to hold a bona fide belief that they were entitled to grant of payment of such amount. Moreover, the order granting the benefit was passed on 15.10.1999, whereas the impugned order seeking to rectify the so called mistake has been passed on 11.4.2002, after lapse of a considerable period. Under the circumstances, this case would be squarely governed by the principles enunciated in the above referred decisions and as such, it is not permissible for the respondents to recover the differential amount from the petitioners even if it were to be held that the same were paid under a mistake.
9. In the light of the aforesaid discussion, the petitions succeed and are, accordingly, allowed. The impugned orders dated 11.04.2002 and 10.05.2002 passed by the respondent No.3 and respondent No.1 respectively, are hereby quashed and set aside. Rule is made absolute, accordingly, in both the petitions, with no order as to costs.
[HARSHA DEVANI, J.] parmar*