Gujarat High Court
Patel Girishkumar Thakorebhai vs State Of Gujarat on 13 December, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/3425/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3425 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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PATEL GIRISHKUMAR THAKOREBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR JAIRAJ CHAUHAN, ADVOCATE for
MR MUKUND M DESAI(286) for the PETITIONER(s) No.
1,10,11,12,13,14,15,16,2,3,4,5,6,7,8,9
MR BHARGAV PANDYA AGP for the RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 1,2,3,4
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 13/12/2018
ORAL JUDGMENT
1. The present petition, under Article 226 of the Constitution of India, is filed for the purpose of seeking following reliefs:
Page 1 of 9 C/SCA/3425/2011 JUDGMENT
"A) to admit this Special Civil Application;
B) to issue a writ in the nature of mandamus and / or any other appropriate writ, order or direction against the respondents quashing and setting aside the impugned action of the respondents in not paying the H.R.A. and C.L.A. @ 20% with effect from May, 2010 and further be pleased to quash and set aside the impugned orders dated 12.1.2011 (Annexure - Q) and order dated 15.2.2011 (Annexure - R) by issuing appropriate writ, order or direction against respondents.
C) to direct the respondents to pay the difference of H.R.A. and C.L.A. from May, 2010 till date forthwith;
D) pending admission, hearing and final disposal of this Special Civil Application, the operation execution and implementation of the order dated 12.1.2011 (Annexure - Q) and order dated 15.2.2001 (Annexure R) be stayed;
E) pending admission, hearing and final disposal of Special Civil Application, the respondents be directed to pay H.R.A. and C.L.A. @ 20% as per G.R. Dated 16.5.2008;
F) to grant any such other and further suitable relief/s as may be deemed fit and proper in facts and circumstances of the case.
2. It is the case of the petitioner that the petitioners are serving in a school run by Respondent No.2 as a teaching and nonteaching staff which school is registered as Nongovernment school but getting 100% grant from the State Authority and are receiving that salary, allowance including HRA, DA, CLA etc. through direct payment scheme. This institution in which the petitioners are working is situated near Baroda Municipal Corporation within the radius of 3.7 km and the same was within revenue limits of Baroda Page 2 of 9 C/SCA/3425/2011 JUDGMENT Urban Development Authority. The provisions contained in Government Resolution dated 15.12.1975 as well as 01.09.1978, all the petitioners were being paid HRA and CLA at the rate of 15% of their basic pay which resumed as applicable and implemented throughout. Subsequently, the Finance Department of the State Government has issued a Circular on 25.02.2000 whereby the percentage of HRA came to be reduced from 15% to 5% and the benefit of CLA has been withdrawn.
2.1 Against the said decision, some of the employees of school submitted Special Civil Application No.7399 of 2000 in which on appreciation of prima facie case, ad interim relief was granted vide order dated 10.07.2000 and subsequently by issuing direction, the petition came to be disposed of vide judgment and order dated 26.09.2000. In response thereto, the representation was made and thereafter vide order dated 01.02.2002, the respondent have continued to pay HRA and CLA, however, after some lapse of time, one another Government Resolution dated 16.05.2008 came to be published by the State Government and as per the contents of the said Government Resolution, the petitioners were held to be entitled for HRA and CLA. Even the certificate also came to be issued by Jilla Gram Vikas Agency, Vadodara indicating that institution in which the petitioners are serving at Koili is situatin within notified area of Baroda Urban Development Authority within radius of 8 km still, however, by virtue of a letter dated 04.01.2010 it has been informed to school management by the office of the District Education Office, Vadodara to initiate recovery proceedings of HRA and CLA and from May, 2010 according to the petitioner Page 3 of 9 C/SCA/3425/2011 JUDGMENT the said HRA and CLA has been reduced and on reduced rate the same is being paid to the petitioner. Thereafter, vide order dated 12.01.2011, the District Edcuation Officer, Vadodara directed the Principal of school that HRA and CLA, which have been paid to the employees of the school, are required to be recovered and asked to initiate appropriate proceedings and in turn the respondent No.4 institute vide order dated 15.02.2011 conveyed the Principal to initiate proceedings against employee of the school for recovery of HRA and CLA which was paid to them and it is at that stage the present petition was brought before the Court for seeking relief as prayed for.
2.2 The petition came to be admitted vide order dated 25.03.2011 and while issuing notice, an ad interim relief iwas granted whereby it is directed that though proceedings pursuant to the notices may go on but no final order be passed till next date of hearing and subsequently the said interim relief from time to time appears to have been continued and with this background, the present petition has come up for consideration finally before this Court after issuance of Rule on 03.07.2012 and there was a stay granted which has continued all throughout.
3. Mr.Jayraj Chauhan, learned advocate appearing for the petitioner with Mr.Mukund Desai, learned advocate has vehemently contended that there is neither representation nor any fault on the part of the petitioner employees to receive such amount of HRA and CLA as the same was paid in response to the prevalent norms as per Government Resolution and, therefore, no Page 4 of 9 C/SCA/3425/2011 JUDGMENT recovery can be effected since the benefit has been extended to the petitioner at the relevant point of time. It has further been contended that though the Government Resolution dated 25.02.2000 was upheld at the relevant point of time but the effect of the same could not have been given retrospectively in any form. Had there been a case that any misrepresentation either on the part of school management or the teachers is the case then the Government might have to some extent justified in trying to correct the mistake but there also the said recovery could not have been effected since the benefit has been extended without any fault on the part of the petitioners. It is settled position of law that after several years even if the amount has been paid under the mistaken belief then also recovery cannot be effected. As a result of this, learned advocate has submitted to grant relief as prayed for in the petition.
3.1 Mr.Chauhan, learned advocate has further submitted that institution in which petitioners are functioning is a grantinaid institute and the petitioners are receiving service benefits under the Direct Payment Scheme and, therefore, simply because according to authority the Resolution is to be effected but then after long lapse the same cannot be effected and it is undisputed position that petitioners are serving at a place which is within radius of 8 km and Koili village where the institution is established is nearly 3.70 km only and therefore also by ignoring this it is not open for the authority to give any effect to recovery.
3.2 It has further been submitted that this issue of recovery is Page 5 of 9 C/SCA/3425/2011 JUDGMENT identically cropped up before this Court around 2003 and almost similar issue has been decided by learned Coordinate Bench of this Court dated 02.12.2011 and petition came to be allowed and by drawing relevant observations contained in the said decision which is attached at page:93 of the petition compilation, a request is made that the authorities are required to be estopped from recovering anything even if petitioners are in receipt of HRA and CLA erroneously. By referring to this decision, an ultimate submission is made to grant the relief as prayed for in the petition.
4. To meet with the stand taken by learned advocate for the petitioner, Mr.Bhargav Pandya, learned Assistant Government Pleader appearing for the authority has submitted that it is not correct on the part of the petitioner to contend that even if wrong benefit is passed on, no recovery can be effected. In fact, the Government Resolution about reduction of HRA dated 25.02.2000 has been the subject matter of challenge by the teachers' association at the relevant point of time and this Court, in the month of March, 2003, has held that the Resolution dated 25.02.2000 is upheld. As a result of this, when that be so, it is not open for the petitioner to contend otherwise. Hence, the authority must be allowed to effect the recovery. However, learned Assistant Government Pleader has not been able to confront or counter the later decision which has taken place raising almost similar issue and after referring it, it has left to the discretion of the Court. No other submissions have been made.
5. Having heard learned advocates for the parties and having Page 6 of 9 C/SCA/3425/2011 JUDGMENT gone through the material on record, it prima facie appears that the recovery is sought to be effected of benefit of HRA and CLA is impermissible after long lapse of period, more particularly, in view of the fact that petitioners were never at fault being not received the benefit by making any representation nor are at fault in receiving such benefit. When that be so, to allow the authority to pick the amount, at this stage, after this much period is not just and proper.
5.1 In addition thereto what was being paid to the petitioners was not on their own representation but by effecting the relevant Government Resolution and, therefore, if there is any change is taking place later on, the same cannot be effected in view of settled position of law and in an identical situation, the coordinate bench has practically concluded the issue and, therefore, this Court is also of the considered opinion to give the verdict on the line on which in the year 2011 the Bench has taken the view.
5.2 Since the Court is considering and relying upon the said decision dated 02.12.2011 rendered in Special Civil Application No.235 of 2003, the Court would like to quote the relevant paragraphs contained therein and the said decision is also passed upon the observations made by Apex Court in the year 2009.
"5. Having heard the party in person and the learned AGP, according to this Court, the issue and the subject matter is no more resintegra. In the case of Syed Abdul Qadir and Others v. State of Bihar and Others reported in 2009 AIR SCW 1871, the Apex Court, while considering the case under Fundamental Rules - Rule 20 and Rule 20(c) and Article 309 of the Constitution of India, in Page 7 of 9 C/SCA/3425/2011 JUDGMENT Paragraph, 28 held as under :
" Undoubtedly, the excess amount that has been paid to the appellants teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants teachers, we are of the view that no recovery of the amount thathas been paid in excess to the appellants teachers should be made."
6. In view of the law on the subject as held by the Apex Court in the case of Syed Abdul Qadir (supra), I am of the considered opinion that the impugned order on the basis of which the recovery is sought for from the petitioners in respect of HRA/CCA is illegal. I am, therefore, inclined to allow the present petition to the extent of directing the respondents not to implement or effect recovery of dues of HRA/CCA from the petitioners and, if the amount of gratuity is withheld on account of outstanding dues of recovery of HRA/CCA, the same shall be released within eight weeks from the date of receipt of this order. Rule is made absolute with no order as to costs."
5.3 Hence, the Court is of the considered opinion that relief against the recovery deserves to be granted in favour of the Page 8 of 9 C/SCA/3425/2011 JUDGMENT petitioner. The following are the relevant observations contained in the said decision which require to be reproduced herein after.
6. In view of the aforesaid situation and in view of propositions of law which has been set right by coordinate bench, this Court is of the clear opinion that there shall be no recovery from the petitioner except of HRA and CLA which has been paid over the period of time to the petitioners and it is observed while admitting that this judgment, if any amount of retiral dues or gratuity is withheld on account of such recovery of HRA and CLA, the same shall be released within period of eight weeks from the date of receipt of copy of writ of this order.
7. With the above observations and directions, the present petition stands allowed. Rule is made absolute to the aforesaid extent. No order as to costs. Direct Service is permitted.
(A.J. SHASTRI, J) MISHRA AMIT V. Page 9 of 9