1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :
(“A)Admit this petition.
(B) Quash and set aside orders dated 10/13.8.2007 (Annexure J) as well as 20.12.2007 (Annexure L) passed by Respondent No.2 by declaring them as illegal, unjust, improper, contrary to GR dated 16.8.94 and 5.7.91 as well as the law laid down by the Hon'ble Apex Court and this Hon'ble Court as well as other High Courts from time to time by declaring that the petitioner is eligible and entitled to get the pension and other pensionary benefits as per the last pay drawn by him in the pay scale of Rs.5000-8000 and direct the respondent authorities to immediately release all the pension and pensionary benefits in his favour accordingly as per the last salary drawn by him as aforesaid for the post of Head Clerk cum Accountant in the Nagar Prathmik Shiksan Samiti at Jamnagar run by the Jamnagar Municipal Corporation by directing the respondent authorities to release pension and terminal/retirement benefits to the petitioner with interest at the rate of 18% per annum from the date of retirement of the petitioner 31.5.2006 as per the Government Resolution.
(BB)Your Lordships be pleased to declare that the action of the respondents in withdrawing the first Higher Scale of the petitioner in the post head clerk cum accountant Class-III is illegal, unjust, unconstitutional and also contrary to the resolution at ANNEXURE : N to the petition.
(C) Your Lordships be pleased to declare that the recovery sought to be made by the respondent authorities pursuant to orders dated 10/13.8.2007 (Annexure J) as well as 20.12.2007 (Annexure L) is illegal, unjust, improper and restrain the respondents from making any such recovery from the pension and retirement benefits of the petitioner and release all such benefits accordingly.
(D) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to restrain the respondents from effecting recovery pursuant to orders dated 10/13.8.2007 (Annexure J) as well as 20.12.2007 (Annexure L) from the pension and retirement benefits of the petitioner and direct the respondents to release all pensionary/retirement/terminal benefits in favour of the petitioner as per the last salary drawn by him in the pay scale of Rs.5000-8000.
(E) Grant such other and further reliefs deemed just and proper in the facts and circumstances of the case.”
2. The facts as narrated and as can be carved out from the record of the petition can be summarised as under.
3. The petitioner joined services of respondent no.4 – School Board as Junior Clerk on 28.1.1974 on sanctioned post. It is an admitted position that as per sanctioned set-up there was one post of Head Clerk cum Accountant and two posts of Junior Clerks. It also transpires that no post of Senior Clerk was there and therefore no promotional avenues were available. The State of Gujarat by Government Resolution dated 16.8.1994 made a policy for granting higher pay scale to the employees, who are not granted promotion in their service tenure and as per the policy decision of the State Government, such employees who had no promotional avenues available were given three tier higher pay scale on completion of 9-18-27 years of service respectively.
4. It is the case of the petitioner that after verification of the case of the petitioner, respondent no.4 – School Board granted benefits of higher pay scale to the petitioner in the cadre of Head Clerk cum Accountant with effect from 1.2.1996. It is the case of the petitioner that the petitioner was given benefit of revised pay scale of Rs.5000- 8000. It further transpires from the record that the petitioner was extended the said benefit of higher pay scale till he attained the age of superannuation with effect from 31.5.2006.
5. As the service record of the petitioner was clear, no inquiry was initiated and/or was pending against him, the petitioner made an application before respondent no.4 on 26.7.2006 stating that as no departmental inquiry is pending against the petitioner, the case of retiral benefits may be considered and the pension may be fixed and other pensionary benefits may be given to the petitioner. It transpires that as nothing was done, the petitioner approached this Court by way of filing a Writ Petition being Special Civil Application No. 2330 of 2006 which was disposed of by this Court (Coram : Mr. Justice H.K.Rathod) vide order dated 16.11.2006, whereby this Court was pleased to direct the respondents to consider the case of the petitioner and pass appropriate orders in accordance with law within a period of one month from the date of the receipt of the copy of the order. In pursuance to the said order dated 16.11.2006, respondent no.4 heard the petitioner on 12.12.2006, wherein the petitioner also filed detailed representation. However, as nothing was decided the petitioner again filed a further representation on 16.1.2007. It further transpires that respondent no.4 thereafter, vide communication dated 24.4.2007 informed the petitioner that the pay band which is already paid to the petitioner requires to be regularized and after re-fixing the pay, the pension papers can be forwarded to the competent authority. The petitioner thereafter filed a further representation dated 16.5.2007 interalia contending before the authorities and more particularly respondent no.4 that after his retirement, the petitioner is entitled to his pension on the basis of the pay scale Rs. 5000-8000 and that the pay scale granted to the petitioner cannot be withdrawn with retrospective effect after his superannuation which is impugned in the petition. The petitioner thereafter again approached this Court by way of filing another Writ Petition being Special Civil Application No. 16884 of 2007 which was disposed of by this Court (Coram : Mr. Justice H.K. Rathod) vide order dated 15.10.2007, whereby this Court was pleased to direct the Director of Primary Education to examine the issue whether the petitioner is entitled for the benefit of pension on the basis of last drawn salary or revised lower grade salary and to pass appropriate reasoned order after considering service record of the petitioner within a period of three months from the date of receiving copy of the order. Respondent no.2 vide order dated 20.12.2007 rejected the prayer of the petitioner for sanctioning of his pension and other consequential benefits as per last drawn salary. Even after the said order the pension papers of the petitioner were not dealt with and as the pension was not fixed the petitioner again filed further representation on 3.1.2008.
6. It is also pertinent to note that meanwhile the authorities decided the case of the petitioner and fixed the pension vide order dated 22.5.2008, however, while doing so has recovered the amount of Rs.1,28,317/- from the consequential benefits which accrued in favour of the petitioner. Such deduction is made by respondent no.4 – School Board and the petitioner has been informed vide communication dated 11.6.2002. Copy of the order dated 22.5.2008 as well as communication dated 11.6.2008 are taken on record.
7. Heard Mr. Hasit Joshi, learned Advocate for the petitioner. Mr. Joshi has vehemently submitted that as per the settled law recovery cannot be effected by the respondent authorities. Mr. Joshi further submitted that it is not the case of the respondents, more particularly respondent no.4, that the benefit which was given to the petitioner by respondent no.4, with effect from 1.2.1996 was on account of misrepresentation or fraud which can be attributed to the petitioner and therefore the action of recovery initiated and effected by the respondent is per se bad and illegal. Mr. Joshi has relied upon the judgment of the Apex Court in the case of Syed Abdul Qadir And Others Vs. State of Bihar And Others, reported in (2009) 3 SCC 475, as well as the judgment of the Apex Court in the case of Yogeshwar Prasad & Ors. Vs. National Inst., Edu. Planning & Admn.& Ors., reported in JT 2010 (12) SC 278 and has submitted that the action of the recovery initiated and acted upon by the respondents and more particularly respondent no.4 is without any authority and dehors the policy. Mr. Joshi further submitted that in the similarly situated case of Prafulchandra C. Parekh Vs. State of Gujarat, being Special Civil Application No. 2394 of 1994, this Court (Coram : Mr.Justice K.S.Jhaveri) vide judgment and order dated 28.4.2010 has observed thus :
“6.0 Heard the learned Advocates for the respective parties and perused the relevant records. When this matter was admitted ad interim relief was granted. On 25th June 2004 this Court passed the following order:
'Learned AGP Shri Bhatt for the respondent State Government prays for time. It appears that there is an order of interim relief granted in favour of the petitioner by the learned Single Judge of this Court on 21.2.1994, while issuing Rule. The same is operating in favour of the petitioner till today. Shri Tanna, learned Counsel for the petitioner states that the petitioner is going to retire on 31.12.2004. Be that as it may, from the record of the case it appears that no counter to this petition is filed. Thus, it appears that the respondents are not much interested in the matter, therefore, let this matter be placed in JANUARY 2005. If so advised, the otherside may file reply to this petition by that time.'
7.0 Thereafter, reply has been filed in the matter. I have perused the relevant records. From the record, it appears that the post of Head Clerk was not in existence in Jamnagar Nagar Prathmik Shikshan Samiti where the petitioner worked. It is pointed out that somehow the petitioner was given the pay scale of Rs.425-800 which was never a pay scale so far as all Nagar Prathmik Shikshan Samiti Jamnagar is concerned. In fact, the petitioner was appointed on the pay scale of Rs.145-215, which is then revised to Rs.425-700 which was further revised to Rs.1400-2300 and which was further revised to Rs.4500-7000. Therefore, the petitioner was not entitled to the scale of Rs.425-800 and it is by mistake the said scale was given to him. Unfortunately only later on it was realized that he was given higher pay scale in place of Rs.425-700. On realizing the mistake, it was sought to be corrected by raising an objection by Local Fund Office. Since the said pay scale was given to the petitioner erroneously, it cannot be said that injustice has been done to the petitioner. Thus, I am of the view that the respondent authority has not committed any error in correcting the pay scale given to the petitioner.
8.0 In the premises aforesaid, I do not find any merits in this petition. The same is therefore dismissed.
9.0 It is required to be noted that the pay scale was erroneously given to the petitioner and the same was noticed only at a later stage. The petition was filed in the year 1994 and stay was granted against reversion of pay scale and recovery. The petition is taken up only in the year 2010. The petitioner has already retired long back. Under the circumstances, in view of the fact that the said pay scale was erroneously given to him and it was noticed at a later stage and in view of the stay granted by this Court and also in view of the fact that the petitioner has already retired, I am of the view that in the interest of justice, no recovery may be effected from the petitioner in respect of the amount already paid to him. However, the respondent No.1 may refix the pension of the petitioner on the basis of the correct pay scale”.
8. Mr. Joshi therefore submitted that respondent no.4 should be directed to pay back the amount of Rs.1,28,317/- to the petitioner within some reasonable time. Mr. Joshi for the petitioner further submitted that respondent no.1 may refix the pension of the petitioner on the basis of the correct pay scale as reported in case of Prafulchandra (supra). No other contentions are raised by the petitioner.
9. Per contra Ms. Chitalia, learned Assistant Government Pleader as well as Mr. Premal Joshi, learned Advocate appearing for respondent no.4 have submitted that as per the said order, the petitioner has been granted wrong benefit right from 1996. However, both the Counsels appearing for the respective respondents are not in a position to point out as to how the recovery proceedings were initiated and acted upon by respondent no.4 at the instance of respondent no.2. Learned Counsels for the respondents are not in a position to point out that the benefits which were given to the petitioner, were on account of any misrepresentation or fraud committed by the petitioner. On the contrary, Mr. Premal Joshi, learned Advocate for respondent no.4 candidly submitted that even though there are no allegations of misrepresentation or fraud, the petitioner was otherwise not entitled for the said benefit and submitted that the recovery initiated and acted upon by the respondent no.4 is legal and proper.
10. Considering the rival submissions and considering the facts emerging out of record of the petition and also considering the fact that no affidavit is filed by the respondents, it is crystal clear that there is no allegation that the benefit of higher grade pay scale was given to the petitioner on account of any misrepresentation or fraud committed by the petitioner and therefore no recovery can be effected from the petitioner in respect of the amount which was already paid to the petitioner while in service. However, in view of the fact that the pay scale was erroneously given to him which was noticed only after he attained the age of superannuation and at the stage when the pension papers were forwarded to the office of Local Fund, the petitioner cannot be made responsible for the same and therefore respondent no.4 is directed to refund the amount recovered i.e. Rs.1,28,317/- within a period of four weeks from today. As far as other prayers are concerned, as pointed out by Mr. Joshi the same are squarely covered by the judgment of this Court in the case of Prafulchandra (supra) and hence the other prayers cannot be granted. The respondents may refix the pension of the petitioner on the basis of the correct pay scale.
11. The petition thus stands partly allowed. Rule made absolute only to the aforesaid extent with no order as to costs.
Sd/-
(R.M. Chhaya, J.) M.M.BHATT