1. The short facts are that the petitioner was appointed as teacher on 09.06.1958 with M.N.M.Chamadia High School, Amod, District Bharuch. He continued in service and ultimately, superannuated on 31.05.1995. On 26.03.1996, the pension of the petitioner was sanctioned as per the order Annexure A. Thereafter, another letter dated 29.01.1997 came to be issued whereby the pension was discontinued on temporary basis. It appears that thereafter, on 12.07.2000, the pension of the petitioner was fixed on Rs.950 with the gratuity amount of Rs.37,620 and out of the said amount, the recovery of Rs.53,358/ was ordered to be made on account of the higher pay scale granted to him. Challenging the said decision, the petitioner had preferred Special Civil Application No.9202/00 before this Court which came to be disposed of since the petitioner had alternative remedy. The matter was also carried in Letters Patent being Letters Patent Appeal No.625/00 and vide order dated 09.10.2000, this Court, as per the declaration made by the learned counsel for the appellant directed the appellantpetitioner herein to make representation and the said representation was ordered to be decided within stipulated time limit.
2. The said representation ultimately came to be decided vide order dated 25.07.2002 (Annexure G), whereby it has been observed that there is no provision made for granting of higher payscale to the protected teacher and therefore, the higher payscale cannot be granted to the petitioner and the representation was not accepted. It is under these circumstances, for challenging the legality and validity of the order dated 25.07.2002, the petitioner has approached to this Court with twofold reliefs. One is that if higher payscale at one point of time was erroneously granted, the recovery cannot be effected from the pension of the petitioner and the second is to direct the competent authority to grant remaining higher payscale as per the Government Resolution dated 05.07.1991 and further consequential benefits.
3. I have heard Mr.Supehia, learned counsel for the petitioner and Mr.Patel, learned AGP for the State.
4. It may be recorded that during the course of the hearing, Mr.Supehia has brought to the notice of this Court the order passed by this Court dated 21.11.2007 in Special Civil Application No.676/07, wherein similar case of protected teacher for grant of higher payscale was under consideration. In the said matter, this Court had directed the competent authority to take the decision within prescribed time limit. Thereafter, vide order dated 20.11.2007, copy whereof is produced by Mr.Supehia during the course of hearing, the State Government found that the protected teachers would be entitled to the higher payscale and the same was thereafter accordingly given in respect of those teachers who were petitioners in Special Civil Application No.676/07 and another. It has been therefore submitted that the said aspect may also be taken into consideration while examining the aspect as to whether protected teachers would be entitled to higher payscale or not as per the resolution of the Government dated 16.08.1994.
5. It is an admitted position that the petitioner was granted one higher payscale when he was in service. However, from the affidavitinreply filed on behalf of the respondent, by Smt.Bhartiben B. Rathod, Education Inspector, it has been stated inter alia that the petitioner is not entitled to get the benefit of the higher payscale and the recovery is made pursuant to the instruction received from the Director of Pay & Provident Fund. Apart from the stand of the respondent in the above referred affidavitin reply, in the order dated 12.07.2000 (AnnexureC) at item no.14, it has been mentioned that “the recovery of Rs.53,358 due to higher payscale”. Therefore, the aforesaid amount has been recovered from the retiral benefits of the petitioner. It is not the case of th respondents that the higher payscale came to be granted to the petitioner on account of any fraud or misrepresentation made by the petitioner but the stand appears to be that the petitioner was not entitled to the higher payscale but was granted higher payscale and therefore, the recovery is effected.
6. At this stage, the reference may be made to the decision of the Apex Court in the case of Syed Abdul Qadir and others vs. State of Bihar & Ors. reported in (2009) 3 SCC 475, wherein the Apex Court had an occasion to consider the aspect of recovery of the amount erroneously paid or by mistake in absence of any fraud or misrepresentation played by any employee and it was observed at paras 57 and 58 as under:
57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances 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.
58. 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. See Sahib Ram vs. State of Hariyana, Shyambabu Berma v. Union of India, Union of India v. M. Bhaskar, V. Gangaram vs. Regional Jt., Director, Col. B.J. Akkara [Retd.] vs. Government of India, Purshottam Lal Das vs. State of Bihar, Punjab National Bank Vs. Manjeet Singh and Bihar State Electricity Board Vs. Bijay Bahadur.”
Therefore, if the facts are considered in light of the above legal position, the recovery of higher payscale cannot be sustained in the eye of law. Consequently, the amount of Rs.53,358, which has been recovered from the retiral benefits of the petitioner would be required to be refunded.
7. The prayer has been made by the petitioner to direct for payment of interest of the amount which was wrongfully recovered. The petitioner has prayed for the interest at the rate of 12% p.a.
8. In my view, if the State has retained or recovered any money from its employee or any citizen, it must pay the reasonable interest on compensatory basis, since it has enjoyed the money without their being any authority of law, and the employee or the citizen is deprived of for the enjoyment of the money during the said period. Hence, considering the facts and circumstances, 8% p.a. could be termed as reasonable interest by way of compensatory measure and therefore, it can be said that the petitioner would be entitled to the refund of Rs.53,358 with the interest at the rate of 8% p.a. until the amount is actually paid to the petitioner.
9. The aforesaid would lead to examine the next aspect as to whether the petitioner could be said as entitled to the higher payscale as per the resolution of the Government dated 18.08.1994 which has not been granted.
10. Be it recorded that the aspect of recovery of the higher payscale already erroneously granted or by mistake would stand on a different footing than the aspects of entitlement of higher pay scale. It appears from the impugned order dated 25.07.2002 read with the affidavitinreply filed on behalf of the State that as per the State Government, the petitioner being protected teacher would not be entitled for higher pay scale since as per the resolution of the Government dated 16.08.1994, there is no express provision made for grant of the higher payscale. If the aforesaid stand is considered in light of the subsequent decision of the State Government dated 20.11.2007 pursuant to the order passed by this Court in SCA No.676/07 on 21.07.2007, it appears that the State Government has taken the view that the protected teachers would be entitled to the benefit of payscale as per the resolution dated 16.08.1994. Therefore, in view of the subsequent decision of the State Government, matter is required to be reconsidered by the State Government. In any case, the decision in view of the above referred subsequent decision of the State Government in the year 2007, cannot be sustained. It will be for the competent authority of the State Government to examine the matter afresh and then to pass appropriate order within reasonable time.
11. In view of the aforesaid observations and discussions, the respondents are directed to refund the amount of Rs.53,358 with the interest at the rate of 8% p.a. from 12.07.2000 until the amount is actually paid to the petitioner and such direction shall be complied within three months from the receipt of the order of this Court.
12. Further the order dated 25.07.2002 (AnnexureG) passed by the respondent no.1 is quashed and set aside with the direction that the respondent no.1 shall reconsider the matter in light of the subsequent decision of the State Government dated 20.11.2007 pursuant to the order dated 21.11.2007 in SCA No.676/07 and shall render appropriate decision within a period of six months from the receipt of the order. It is also observed that the petitioner shall also produce the copy of the present order with the order dated 21.11.2007 passed by the State Government pursuant to the order dated 21.11.2007 passed by this Court in SCA No.676/07 and other relevant papers and the State Government shall comply with the direction after receipt of the aforesaid order.
13. The petition is allowed to the aforesaid extent. Rule is made absolute accordingly. Considering the facts and circumstances, no order as to costs *bjoy (JAYANT PATEL, J.)