Gujarat High Court
Haresh vs Gujarat on 15 June, 2010
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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SCA/7391/2009 22/ 24 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7391 of 2009
To
SPECIAL
CIVIL APPLICATION No. 7409 of 2009
With
SPECIAL
CIVIL APPLICATION No. 10206 of 2009
To
SPECIAL
CIVIL APPLICATION No. 10222 of 2009
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R.
SHAH
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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HARESH
H BHATT - Petitioner(s)
Versus
GUJARAT
MARITIME BOARD - Respondent(s)
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Appearance
:
MR PARESH
UPADHYAY for
Petitioners
MS SEJAL K MANDAVIA for
Respondents
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 15/06/2010
CAV
JUDGMENT
RULE.
Ms.Sejal Mandavia, learned advocate waives the service of notice of rule on behalf of the respondent Board.
With the consent of the learned advocates appearing on behalf of the respective parties, all these matters along with the other group of petitions are taken up for final hearing today.
As common question of law and facts arise in this group of petitions, they are being disposed of by this common judgement and order.
In all these group of petitions, the respective petitioners have challenged the impugned orders/action of the respondent Board of withdrawing first higher pay scale granted to the petitioners of the cadre of Tradesman with retrospective effect and also ordering recovery from the pay of the petitioners.
All these petitioners were appointed as Khalasi in the respondent Board and on completion of 9 years of service, they were sanctioned first higher pay scale of Rs.1200-2040 of the post of Tradesman w.e.f. 4/11/1993 and on completion of 9 their years service as Khalasi. That an entry to that effect was also made in the Service Book of the respective petitioners at the relevant time. That from time to time they were sanctioned annual increments. That thereafter pay scale of Rs.1200-2040 was also revised to Rs.4000-6000 as per the revision of the Pay Rules, 1998 and the same was sanctioned by the Audit Department. That all the petitioners were served with show cause notice in the year 2008 i.e. after a period of almost 15 years of granting benefit of first higher pay scale of Tradesman and the petitioners were called upon to show cause as to why the first higher pay scale of post of Tradesman shall not be withdrawn. It was the case on behalf of the respondent Board that the next promotional post from the post of Khalasi was of Assistant Tradesman and not Tradesman and therefore, the respective petitioners were wrongly given first higher pay scale of Tradesman on completion of their 9 years service as Khalasi. That the respective petitioners replied to the show cause notice and thereafter by the the respondent Board passed the impugned order dtd.23/6/2009 withdrawing the benefit of first higher pay scale of Tradesman given to the respective petitioners in the year 1993 on completion of their 9 years service on the post of Khalasi and putting the respective petitioners in the pay scale of Assistant Tradesman and further passing order of making recovery of differential amount from their salary. Being aggrieved by and dissatisfied with the impugned orders dtd.23/6/2009 in withdrawing the benefit of higher pay scale of tradesman granted to the respective petitioners in the year 1993 and putting the respective petitioners in the pay scale of Assistant Tradesman on completion of their 9 years service as Khalasi and ordering for consequential recovery, the respective petitioners have preferred these Special Civil Applications under Article 226 of the Constitution of India.
Mr.Upadhyay, learned advocate appearing on behalf of the respective petitioners has vehemently submitted that as such, the respective petitioners were rightly granted first higher pay scale of cadre of Tradesman and the same was approved and audited by the authorities at the relevant time and on that basis even benefit of annual increments as well as revision of pay were sanctioned.
It is further submitted that for the post of Khalasi the next higher post was Tradesman and thus, the petitioners were rightly granted higher pay scale of the cadre of Tradesman. In support of his above submission Mr.Upadhyay, learned advocate appearing on behalf of the respective petitioners has relied upon promotion orders from the post of Khalasi to Trades man issued by the respondent Board which are placed on record.
It is further submitted that even the post of Khalasi and Assistant Tradesman are inter-changeable and transfers were also being made from the post of Khalasi to Assistant Tradesman. Orders to that effect are also placed on record by way of Affidavit-in-rejoinder.
It is further submitted that even show cause notice for withdrawal of higher pay scale granted to the petitioners are issued after a period of almost 15 years and there is no justification shown on the part of the respondent Board with regard to delay in issuing show cause notices. Therefore, it is submitted that at this distant point of time it is not open for the respondent Board to withdraw the higher pay scale granted to the petitioners.
It is further submitted that while passing the impugned orders the respondent Board has relied upon the so-called Draft Rules of the Public Works Department of the State of Gujarat which existed before about three decades, which are never notified and/or approved by the respondent Board. It is submitted that if the show cause notices refer to the said Draft Rules while the impugned orders refer to the Recruitment and Promotion Rules of the respondent Board for the cadre of Khalasi, Assistant Tradesman and Tradesman. Thus, the impugned orders are issued on the ground which were not mentioned in the show cause notice and for which no show cause notice was given to the respective petitioners. It is submitted that the respondent Board has travelled much beyond the show cause notice issued to the petitioners, as the notices were issued to the petitioners asking them to show cause as to why recovery should not be done from their pay, while impugned orders refer to withdrawal of pay scale and consequential recovery, which is unjust and improper on the part of the respondent Board.
It is submitted that it is the case on behalf of the respondent Board that since the pay scale of the cadre of Khalasi and Assistant Tradesman having become identical, the petitioners are entitled to for the next higher pay scale as mentioned in the Scheduled attached to the Government Resolution dtd.16/8/1994 and 14/8/1998, is nothing but an eyewash on the part of the respondent Board, because even according to them the pay scale had become identical in the year 1975 which is much prior to not only grant of higher pay scale but also even initial appointments of the petitioners as Khalasi. It is submitted that subsequent change in the policy cannot change entitlement of the petitioners.
It is further submitted that in any case even it is the case on behalf of the respondent Board that by mistake the higher pay scale of cadre of Tradesman was granted to the petitioners and the same is corrected by issuing the impugned orders. It is submitted that still it is not a mistake at all and even if it is a mistake, the same cannot be corrected after these many years.
Mr.Upadhyay, learned advocate appearing on behalf of the petitioners has relied upon the decision of the Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Ltd. and Another Vs. BPL Mobile Cellular Ltd. and Others, reported in 2008 AIR SCW 6743.
It is submitted that in response to the show cause notice, the petitioners had filed their reply and explained in detail raising all the aforesaid contentions, however, none of the contentions of the petitioners is dealt with by the respondent Board while passing the impugned orders, which shows complete non-application of mind on the part of the respondent Board and it reduces the entire exercise to a faras, since show cause notice was issued just to complete one formality and the authority had no intention to know what the petitioner have said in reply to the show cause notice issued by the respondent Board. It is submitted that on this count also the impugned orders are required to be quashed and set aside. By making above submissions and relying upon the above decisions, it is requested to allow all these Special Civil Applications and quash and set aside the impugned action of the respondent Board of withdrawing higher pay scale granted to the petitioners and also ordering consequential recovery from the pay of the petitioners.
All these petitions are opposed by Ms. Sejal Mandavia, learned advocate for the respondent Board. It is submitted that the GMB came into existence from the year of 1982. The GMB has not framed its own rules till today. But whatever Rules and Regulations drafted by the Government of Gujarat that has been adopted by the GMB and the circular / resolution dated 16.4.1982 has been passed by the Board to the aforesaid effect adopting the rules and regulations of the Government.
It is submitted that as per the Draft Recruitment Rules of the Government, the hierarchy of the posts are as under:
Khalasi Asst.
Tradesman Tradesman Mistry Foreman
16.
It is submitted that in the year 1991 i.e. 5.7.1991 the Government has published higher pay scale which was thereafter substituted on 16.8.1994. It is submitted that by mistake officer of the GMB started giving pay scale to the different categories without looking into the Draft Recruitment Rules. It is submitted that officers of the Board by mistake granted higher grade scale to the Khalasi for the post of Tradesman though actually the next promotional post of Khalasi was Asst. Tradesman. It is submitted that another /second mistake committed by the officers of the Board was that they have not looked into the provisions of Government Resolutions dated 16.8.1994 and 14.8.1998.
17. It is submitted that in the year 1975 the pay scale of Khalasi and Asst.Tradesman became same and the Government has made specific provision in above mentioned Government Resolution that when there are more than two promotional posts and if the pay scale of two posts becomes same then as per the schedule attached along with said Government Resolutions the pay scale requires to be given. It is submitted that here the mistake is committed to the effect that instead of giving the higher pay scale as per schedule along with Government Resolutions, the higher pay scale was given to the post of Tradesman and Foreman and not given as per the schedule attached along with the Government Resolution.
18. It is further submitted that in the year July 2000 some persons submitted application to the the Hon'ble Chief Minister of Gujarat contending that in GMB the pay scales are wrongly given and it is not given as per the hierarchy of the promotions which are decided by the Draft Rules of the State of Gujarat. Along with the said application the chart of the higher pay of mechanical staff was attached. It is submitted that after perusing the the said chart as well as the rules of the Government it was decided to initiate preliminary inquiry that whether there is any mistake committed by the officers of the board or the pay scales are rightly given. It is submitted that one Shri AB Pathan, Retired Joint Secretary, Finance Department, Government of Gujarat was appointed as an inquiry officer on the matter of sanctioning the pay scale of various cadres. That the Inquiry Officer conducted detailed inquiry and handed over the inquiry report to the Board stating that irregularities have been committed in granting the pay scale to various cadres for which the employees are not entitled to get it, but it was specifically mentioned in the report that there was no bad intention but it was only irregularities. It is submitted that after looking into the report the matter was discussed and ultimately it was found that the mistake requires to be corrected. It is submitted that it is established law that while correcting the mistake, the principles of natural justice are required to be followed and therefore, all the employees were given show cause notices and after considering the reply as well as after hearing them the orders withdrawing the pay scale have been passed which are impugned in the petition.
19. Ms. Mandavia, learned advocate for the respondent has tried to justify the delay in initiating the proceedings to withdraw the first higher grade scale of the post of Tradesman by relying upon the averment in the affidavit in reply.
20. With respect to the submissions on behalf of the respective petitioners that the Draft Rules were never acted upon in the past or they were not sanctioned and they were at the stage of Draft Rules, it is submitted that in that case the draft rules can be said to be administrative instructions as held by this Court in the case of Bhanmait Tapubhai Muliya Vs. State of Gujarat reported in 1995(2) GLH 228. It is further submitted that as such the Draft Rules were acted upon and relying upon the Draft Rules the promotions were given to the post of Mistry from the post of Tradesman and the concerned persons also took charge on the post of Mistry. Ms. Mandavia, learned advocate for the respondent board has heavily relied upon one office order dated 16.9.1993 along with their presence report dated 3.10.1993 in support of her above submissions.
21. It is submitted that as such respective petitioners are required to establish and prove that as such they are/ were entitled to the first higher grade scale of the post of Tradesman and the next promotion from the post of Khalasi was to the post of Tradesman. It is submitted that the respective petitioners have failed to establish and prove that the next promotional post from the post of Khalasi was to the post of Tradesman and, therefore, they were not entitled to first higher grade scale of the post of Tradesman. It is submitted that on the other hand respondent has established and proved relying upon the Draft Rules that the next promotional post from the post of Khalasi was to the post of Asst.Tradesman and even the said draft rules were acted upon.
22. Now, so far as reliance placed upon some office orders granting promotion from the post of Khalasi is concerned, it is submitted by Ms. Mandavia, learned advocate for the respondent board that office order cannot be the base of the petition because right from the beginning the stand of the board is that mistakes were committed in past. Therefore, may be the said orders are passed which were passed before correcting the mistake by the board but by that it cannot be said that the orders are become statutory rules and therefore, when petitioners have no base to file the petition, the petitions are required to be dismissed.
23. It is further submitted that when it has been found that respective petitioners were granted the first higher grade scale of the post of Tradesman by mistake though they were not entitled to and when such mistake has been corrected though belatedly the impugned decision / action is not required to be quashed and set aside. Therefore, it is submitted that merely on the ground of delay the impugned action is not required to be quashed and set aside. It is submitted that correction of mistake is always permissible as mistake does not confer any right. She has relied upon the decision of the Hon'ble Supreme Court in the case of Union of India Vs. S.R. Dhingra And Others reported in (2008) 2 SCC 229 as well as the decision in the case of Union of India and Others Vs. Sujatha Vedachalam (Smt) And Another reported in (2000) 9 SCC 187.
24. Ms.Mandavia, learned advocate for the respondent board has also relied upon the decision of this Court dated 22.7.2009 in Special Civil Application No. 7006 of 2009 and other allied matters in a case where the first higher grade scale to the post of the Tradesman was given of the Khalasi was sought to be withdrawn and recovery was sought, this Court only quashed and set aside the order with respect to the recovery only.
By making above submissions and relying upon the decisions, it is requested to dismiss all these Special Civil Applications.
25. Heard the learned advocates for the respective parties at length. In all these petitions, respective petitioners have challenged the impugned respective orders passed in the year 2008 withdrawing/canceling the benefit of first higher grade scale granted to the respective petitioners of the post of Tradesman which was granted to the respective petitioners since between 1991 to 1994 respectively w.e.f. the date on which the respective petitioners completed 9 years of service as Khalasi, on the ground that there was a mistake in granting the first higher grade scale to the respective petitioners of the post of Tradesman. Thus, the mistake, if any, is sought to be corrected by the respondent after a period of approximately 17 to 18 years and in the meantime the pay of the respective petitioners were re-fixed under Gujarat Civil Services (Revision of Pay) Rules, 1998 and the same came to be audited and no objection was raised even by the audit department. Whether in fact, there was a mistake on the part of the respondent in granting higher grade scale of the post of Tradesman to the respective petitioners on completion of 9 years of service as Khalasi shall be dealt with hereinafter. At present this Court is considering whether assuming that there was a such mistake in granting the benefit of first higher grade scale to the respective petitioners of the post of Tradesman, can the respondent be permitted to rectify / correct the same after a period of approximately 17 to 18 years. As such for the reasons stated hereinafter there was no mistake committed by the officers of the respondent board at the relevant time granting the benefit of higher grade scale of Tradesman to the respective petitioners on completion of their 9 years of service on the post of Khalasi. As observed by the Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Ltd and Another (supra) when a mistake is not rectified for a long period, the same in law, may not be treated to be one. It is true that even in the said decision the Hon'ble Supreme Court has observed and held that mistake can be rectified, however, considering the peculiar facts and circumstances of this case when the respective petitioners were granted the benefit of first higher grade scale of post of Foreman between 1991 to 1994 respectively w.e.f. back date and /or retrospectively i.e. from the date on which the respective petitioners completed 9 years of service on the post of Khalasi and even thereafter there pay was re-fixed accordingly as per the Gujarat Civil Services (Revision of Pay) Rules, 1998 and even thereafter the some of respective petitioners have retired and their pension came to be fixed accordingly and they are getting the pension accordingly, respondent cannot be permitted to rectify and/ or correct the so called mistake after a period of 17 to 18 years. It is to be noted that even according to the respondent it was brought to the notice of the Board the so called mistake in July 2000 and even the Inquiry Officer handed over the inquiry report in the matter of sanctioning pay scale of various cadres and submitted his preliminary inquiry report in the year 2001 still the show cause notices came to be issued in the year 2008 only i.e. even after a period of 7 years from the date of submission of the report of preliminary inquiry. In the further affidavit in reply on behalf of the respondent board, respondent board has tried to explain the delay but considering the para 2, it cannot be said that the respondent board has explained the delay of 17 to 18 years in correcting so called mistake. Under the circumstances,in the aforesaid facts and circumstances of the case and the change circumstances from time to time, the respondent board cannot be permitted to rectify / correct the so called mistake after a period of 17 to 18 years upsetting the financial position of the respective petitioners.
26. Now, main question which is posed for consideration of this Court is whether was there any genuine mistake on the part of the respondent board in granting the benefit of first higher grade scale of the post of Tradesman to the respective petitioners at the relevant time ? It is the case on behalf of the respondent board that next promotional post from the post of Khalasi was to the post of Asst.Tradesman and then to the post of Tradesman and, therefore, the respective petitioners were entitled to the first higher grade scale of the post of Asst.Tradesman. However, it is to be noted that at least since 1975 the pay scale of Khalasi and Asst.Tradesman has become equivalent and / or become the same. It has also come on record that even in the year 1990-91 and/ or prior thereto the post of Khalasi and the Asst.Tradesman was interchangeable / transferable and some orders to that effect are also placed on record by way of affidavit in rejoinder. Even some orders of promotion promoting a Khalasi/ Asst.Tradesman to the post of Tradesman are also placed on record. Therefore, considering the above, when the respective petitioners who were serving as Khalasi were granted the first higher grade scale of the post of Tradesman on completion of their 9 years as Khalasi, it cannot be said to be mistake as sought to be contended on behalf of the respondent board now. It is to be noted that the learned advocate for the respondent board has relied upon one order, by which the some Khalasi were promoted to the post of Asst.Tradesman on ad hoc basis however as stated above, there are some orders with respect to the promotion to the post of Tradesman from the post of Khalasi also. Therefore, as such it cannot be said that it was severe mistake committed by the board in granting the first higher grade scale of the post of Tradesman to the respective petitioners, on completion of 9 years of service as Khalasi.
27. The respondent has heavily relied upon the Draft Recruitment Rules published by the State Government and according to the respondent board as per the Draft Recruitment Rules from the post of Tradesman the promotion can be given on the post of Mistry and from the post of Mistry promotion can be given on the post of Foreman. It is an admitted position that the said draft rules were not approved and were at the stage of draft rules. It is true that as per the decision of this Court in the case of Bhanmait Tapubhai Muliya (Supra) the draft rules can be treated as administrative instructions, however nothing is on record that the said draft rules were implemented by the board at any point of time. It is also required to be noted at this stage that the case on behalf respondent board with respect to the draft rules and under the draft rules, there was a provision to give promotion to the post of Tradesman from the post Mistry and from the post of Mistry to the post of Foreman was never brought to the notice of the respective petitioners and even there is no reference to the same in the impugned orders and for the first time, the same has been pleaded by the respondent board in the affidavit in reply to the present Special Civil Applications. Therefore, the reliance placed upon the draft rules to be treated as administrative instructions is nothing but an afterthought and even for which no opportunity has been given to the respective petitioners to meet with the same. As stated above, as such nothing is on record that the said draft rules even if to be treated as administrative instructions were acted upon and / or implemented by the respondent board earlier. If the attention of the respective petitioners would have been drawn to the aforesaid at the time of show cause notice in that case, respective petitioners could have pointed out that the same were not acted upon at all and / or at least the petitioners could have meet with same.
28. Considering the aforesaid facts and circumstances and totality of the facts narrated hereinabove, as such it cannot be said that there was any mistake committed by the respondent board in granting the benefit of first higher grade scale of the post of Tradesman to the respective petitioners on completion of 9 years of their service as Khalasi, more particularly, when the pay scale of Khalasi and the Asst.Tradesman was same, right from 1975, therefore, as such there is no question of considering the post of Asst.Tradesman as promotional post from the post of Khalasi. Under the circumstances, as such there was no mistake committed by the respondent board at the relevant time in granting the benefit of higher grade scale of the post of Tradesman to the respective petitioners on completion of 9 years of their service as Khalasi as sought to be contended now and which is sought to be corrected now.
29. Considering the affidavit in reply the respondent board has tried to explain the delay by submitting that in the year 2000 some complaint was received by the office of Hon'ble Chief Minister and thereafter the inquiry was directed to be conducted in the year 2000 and inquiry officer has submitted the preliminary inquiry report in the year 2001 and thereafter the board came to know about the mistake in granting the first higher grade scale to the respective petitioners of the post of Foreman, which gave rise to the recovery proceedings and the impugned orders. However, on considering the complaint dated July 2000 and the preliminary report submitted by the officer in the year 2001, it appears that the respondent board has not come with clean hands. The complaint made in the month of July 2001 and the preliminary inquiry conducted by the officer who submitted the report in the year 2001 was only with respect to some Khalasi at Navlakhi Port, who were alleged to have been granted the higher grade scale of Tradesman wrongly. No complain was made with respect to the petitioners and / or grant of higher grade scale of the post of Foreman to the petitioners. In view of the above, it is highly improper on the part of the respondent board to rely upon the aforesaid complaint and the preliminary inquiry report which has nothing to do with the grant of first higher grade scale given to the respective petitioners and the post of Foreman on completion of their 9 years as Tradesman. It appears that only for the purpose of explaining delay and/ or to get out of the delay and/ or without properly appreciating the fact, they have relied upon the aforesaid complaint and the preliminary inquiry report.
30. Considering the aforesaid facts and circumstances and the totality of the facts narrated hereinabove this Court is of the opinion that there was no mistake committed by the board in granting first higher grade scale to the post of Tradesman to the respective petitioners on completion of their 9 years of service as Khalasi as sought to be contended now which is now sought to be rectified and / or corrected, which can be permitted to be corrected now after a period of 17 to 18 years granting of such benefit. As stated above, after the respective petitioners were granted the benefit of first grade scale of the post of Tradesman, there was a revision of pay in the year 1998 and the salary of the respective petitioners was fixed as per the Gujarat Civil Service (Revision of Pay) Rules, 1998 as and even the same was verified and audited and the same was confirmed.
31. It is also required to be noted at this stage that as per the respondent board after the impunged orders, pay of the respective petitioners is to be fixed as per the Government Resolution dated 14.8.1998 the pay scale of Khalasi and the Asst.Tradesman was same. However, it is to be noted that the pay scale of Khalasi and the Asst.Tradesman was same since 1975 and the respective petitioners were granted the benefit of first higher grade scale of Tradesman on completion of their 9 years as Khalasi consdering the earlier Government Resolution dated 1987, 1991 and therefore, the respondent cannot rely upon the subsequent resolution of 1998 and / or respondent board cannot be permitted to rely upon the Government Resolution of 1998 retrospectively when the respective petitioners were already granted the benefit of first higher grade scale between 1991 to 1994 respectively.
32. Even otherwise and assuming that there was mistake committed by the board in granting the benefit of first higher grade from the post of Tradesman to the respective petitioners from the date of their completion of 9 years as Khalasi, in that case, also can the respondent board be permitted to have the recovery of the difference of amount paid by mistake in absence of any allegation of fraud and / or misrepresentation on the part of the respective petitioners. It is submitted that the mistake which is alleged was on the part of the department in wrong fixation and the petitioners were not at all responsible for such a mistake and, therefore, as held by the Hon'ble Supreme Court in the case reported in SHYAM BABU VERMA AND OTHERS VS. UNION OF INDIA AND OTHERS reported in (1994) 2 SCC 521; SAHIB RAM VS. STATE OF HARYANA AND OTHERS reported in 1995 Supp (1) SCC 18; unreported judgment of the Division Bench of this Court in the case of I.C.PATEL VS. GUJARAT HOUSING BOARD dated 04.04.2001 in LPA No.578 of 2002 in SCA No.2196 of 1999 and the decision of the Hon'ble Supreme Court in the case of PURSHOTTAM LAL DAS AND OTHERS VS. THE STATE OF BIHAR AND OTHERS reported in 2006 AIR SCW 5325 and another decision in the case of COL.B.J.AKKARA (RETD.) VS.GOVERNMENT OF INDIA AND OTHERS reported in (2007) 1 SCC (L&S) 529, the impugned orders passed by the department to recover the amount of excess payment made due to wrong fixation/grant of higher grade deserve to be quashed and set aside.
33. Para 13 and 14 of Special Civil Application Nos. 7006 of 2009 to 7011 of 2009 are reproduced as under:
13. It is not in dispute that the respective petitioners were not, in any way, responsible for such wrong fixation/grant of higher grade of which the recovery order is passed. It is not the case on behalf of the respondent that the respective petitioners made a wrong representation due to which the higher grade was granted to them. It appears that it was the mistake on the part of the department in wrong fixation/grant of higher grade of Trademan for which, the petitioners are not at all responsible.
14.
The Hon'ble Supreme Court in the aforesaid decisions which are relied upon by the learned advocate appearing on behalf of the petitioner had occasion to deal with the facts where recoveries were effected from the employee concerned due to excess payments which were made wrongly and/or difference amount of salary which was paid to the employee concerned by mistake of department and for which it has been found that there was no fault on the part of the employee.
14.2 In the case of Purshottam Lal Das and others (supra), the Hon'ble Supreme Court, while dealing with the case of recovery of excess salary paid where the appellants were already promoted and had worked in promotional posts but the promotions were subsequently found to be improper and the appellants were found to be not at fault, directed that there shall be no recovery to be made from the amounts already paid in respect of the promotional posts.
14.3 Similarly in the case of P.H.Reddy and others, where it was found that the employees had been in receipt of a higher amount on account of erroneous fixation by the authority, the Hon'ble Supreme Court set aside the order of recovery against payment of salary on account of erroneous fixation by the authority on the ground that the employees were not at fault.
14.4 In the case of Col. B.J.Akkara (Retd.) (supra), the Hon'ble Supreme Court has laid down the following conditions while observing that if such conditions are fulfilled, there can be relief against recovery of excess wrong payment of emoluments/allowances from an employee.
(a) the excess payment was not made on account of any misrepresentation or fraud on the part of the employee;
(b) 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.
14.5 Even in the case of I.C.Patel (supra) before the Division Bench, it was the case of recovery of excess amount paid to the employee by mistake committed by the Board and it was found that the recovery of the excess payment made to the appellant for no fault on his part as unjustified. Subsequently, the learned Single Judge of this Court in the case of Secretary, Finance Department vs. M.M.Patel and others (supra) relying upon the decision of the Division Bench in the case of I.C.Patel (supra) and the decision of Hon'ble Supreme Court in the case of P.H.Reddy (supra) set aside the order of recovery of excess payment made to the employee which was paid because of mistake committed by the department .
34. It is to be noted that in the present case when there is no fraud and/or misrepresentation alleged against the respective petitioners, the impugned orders passed by the respondent so far as recovery of excess amount paid due to alleged wrong fixation / grant of higher grade scale is concerned, is even otherwise deserves to be quashed and set aside.
35. In view of the above and for the reasons stated above, all the petitions succeed and the impugned orders canceling / withdrawing the first higher grade scale of the post of Tradesman to the respective petitioners on completion of their 9 years of service on the post of Khalasi and to re-fix their pay as per the subsequent Government Resolution of 1998 and also the order with respect to recovery and the excess amount are hereby quashed and set aside. Rule is made absolute to the aforesaid extent in each of the petitions. No costs.
[M.R. SHAH, J.] rafik Top