1. Rule. Mr. Alkesh N. Shah, learned Assistant Government Pleader appears for respondent Nos. 1 and 3 and waives service of Rule and Mr. B.Y. Mankad, learned Advocate appears for respondent No.2 and waives service of Rule on behalf of the respective respondent. With consent of the parties, the petition is taken up for hearing and final disposal today.
2. At the outset Mr. Dave, learned Advocate for the petitioner, seeks permission to delete prayer clauses 15-b as well as 15-e. Mr. Dave, learned Advocate for the petitioner submits that the petitioner intends to restrict the petition only to illegal recovery, which is sought to be made on behalf of respondent authorities, as per order impugned in the present petition.
3. The facts as can be carved out from the record of the petition can be summarized as under.
4. That the petitioner is working as Primary Teacher in the School run and managed by respondent No.2 herein since 1987. It is the case of the petitioner that the petitioner was granted first higher grade pay scale of Rs.4500-125-7000 with effect from 4.9.1996 on her completion of 9 years of service. Similarly the petitioner was also granted benefit of second higher pay scale of Rs.5000-150- 8000 with effect from 4.9.2007 by an order dated 24.8.2009.
5. It reveals from the petition that in the year 2011 it transpires from the record of the petition that in the year 2011 on further scrutiny it was found that as per service rules, it was incumbent upon the petitioner to clear Hindi Examination which is not cleared by the petitioner. The petitioner was therefore called upon by notice dated 15.1.2011 to clarify the same. On receipt of the said notice, the petitioner replied the said notice by filing reply dated 21.1.2011 and on considering the said reply the order dated 1.3.2011 (Annexure-A) to the petition came to be passed. It is so held by the competent authority that as the petitioner has not cleared the requisite examination she is not entitled to higher grade pay scale and refix the pay scale of the petitioner accordingly. However, as aforesaid, Mr. Dave, learned Counsel for the petitioner has not pressed the prayer as regards refixation of pay scale and therefore it is not necessary to deal with the same.
6. It is, however, by aforesaid orders dated 7.3.2011 and 28.2.2011 as well as further office order dated 7.3.2011 the petitioner has been directed to pay back the difference paid between 1.9.1990 to 31.1.2011. Being aggrieved by the said order, the petitioner has preferred this petition.
7. Heard Mr. Dave, learned Advocate for the petitioner, Mr. Shah, learned Assistant Government Pleader for respondent Nos. 1 and 3 and Mr. B.Y. Mankad, learned Advocate for respondent No.2.
8. Mr. Dave pointed out that the order of the recovery is bad, illegal and contrary to the binding decision of the Apex Court as well as this Court inasmuch as there is no allegation that the petitioner got benefit of the higher grade pay scale on account of any fraud or misrepresentation on the part of the petitioner. Mr. Dave further pointed out that even as per the provisions of Rule 28(2) of Gujarat Civil Service (Pay) Rules, no refund can be asked for erroneous over payment made on account of pay and allowances. Mr. Dave further submitted that even the exception which is carved out in the said rule to the effect that if such payment is made on the basis of the false information furnished by the concerned government employee, then and then only such refund can be called for. Mr. Dave therefore submitted that the order of repayment is contrary to the rule itself.
9. Mr. Alkesh Shah, learned Assistant Government Pleader and Mr. B.Y.Mankad, learned Advocate have not been able to point out that the petitioner has received the benefit of higher grade pay scale on account of fraud or misrepresentation on the part of the petitioner. Even in the Affidavit-in-Reply filed by respondent No.2, no such allegation is made. Even at the time of argument, the learned Counsel appearing for the respective respondents are not in a position to place on record anything to establish that such excess payment was by way of applicability of higher grade pay scales is received by the petitioner on account of any fraud or misrepresentation. At this juncture, it would be appropriate to refer to the judgment and order of this Court in Special Civil Application No. 3413 of 2008 dated 13.2.2012, wherein identical issue was examined by this Court.
10. Mr. Dave, learned Advocate for the petitioner has vehemently submitted that as per the settled law recovery cannot be effected by the respondent authorities and further submitted that it is not the case of the respondents that the benefit which was given to the petitioner 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 respondents is per se bad and illegal. Mr. Dave 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”.
11. Considering the rival submissions and the facts emerging out of the record of the petition 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. It would be open for the respondent to refix the pay scale of the petitioner on the basis of the orders dated 28.2.2011 as well as 7.3.2011. However, the petitioner cannot be made responsible for the amount paid towards the higher grade pay scale as aforesaid.
12. The petition is therefore allowed to the aforesaid extent. Rule made absolute accordingly with no order as to costs.
Sd/-
(R.M. Chhaya, J.) M.M.BHATT