Gujarat High Court
Nareshbhai Premabhai Patel vs State Of Gujarat on 17 October, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/19404/2022 ORDER DATED: 17/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19404 of 2022
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NARESHBHAI PREMABHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
MS NIRALI SARDA ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 17/10/2023
ORAL ORDER
1. Heard learned Advocate Ms. Harshal Pandya on behalf of the petitioner and learned Assistant Government Pleader Ms. Nirali Sarda on behalf of the respondent- State.
2. Rule. Learned AGP waives service of notice of rule on behalf of the respondent - State.
3. By way of this petition, the petitioner has sought for the following prayers:
"8 (A) The Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent authorities and may be pleased to quash and set aside the impugned letter dated 08.09.2022 and orders of pay fixation in reduced pay scale.
Page 1 of 4 Downloaded on : Wed Oct 18 20:45:50 IST 2023 NEUTRAL CITATION C/SCA/19404/2022 ORDER DATED: 17/10/2023 undefined (B) further be pleased to direct the respondent authorities to
restore the pay scale of petition with all consequential benefits and (C) award the cost of this petition, and (D) Pending admission and final disposal of this petition, the Hon'ble Court may be pleased to restrain the respondent authorities effecting recovery pursuant to letter dated 08.09.2022 and pay fixation orders and /or (E) Grant any other relief or pass any other order which the Hon'ble Court may consider as just and proper in the facts and circumstances of the case."
4. Learned Advocate Ms. Pandya on behalf of the petitioner, would draw the attention of this Court to a decision of learned Co-ordinate Bench dated 18.02.2022 in ase of Patel Rakeshbhai Prabhubhai vs. State of Gujarat in Special Civil Application No. 9823 of 2020 and allied matters, more particularly whereby the claim of persons similarly situated to the present petitioner for being entitled to salary as paid to Degree Holders has been rejected. Learned Advocate Ms. Pandya would submit that under such circumstances, since the petitioner is a Diploma Holder, his case for getting salary as payable to Degree Holders, as declared vide order dated 08.09.2022 would not be tenable more particularly the said order of the learned Co- ordinate Bench having been upheld by Division Bench of this Court and not having been interfered with by the Hon'ble Supreme Court . Hence learned Advocate would submit that she would not press prayer made at Paragraph no. 8 (A) of the petition Page 2 of 4 Downloaded on : Wed Oct 18 20:45:50 IST 2023 NEUTRAL CITATION C/SCA/19404/2022 ORDER DATED: 17/10/2023 undefined 4.1 Learned Advocate would submit that the present petition would now survive only for a direction, as observed at paragraph no. 15 of the decision of the learned Co-ordinate Bench in as much as the petitioner though Diploma Holder, had been paid the salary as payable to the Degree Holder and whereas while vide the impugned order, the respondents have reduced the pay scale of the petitioner to the pay scale as available to Diploma Holder, yet, there isa possibility that the salary overpaid to the petitioner i.e as a Degree Holder, may be sought to be recovered. Learned Advocate after relying upon decision would draw the attention pertinently to paragraph no. 17 whereby learned Co-ordinate Bench has inter alia set aside the order of recovery more particularly of such overpaid amount. Learned Advocate would submit that considering the fact that the said decision has been upheld and not interfered, this Court may grant similar benefit in case of the present petitioner.
5. Learned Assistant Government Pleader could not dispute the fact that the issue with regard to recovery stands concluded.
6. Having regard to the same, more particularly since it appears that paragraph no. 16, the learned Co-ordinate Bench while interfering with the recovery had relied upon law laid down by the Hon'ble Supreme Court in case of State of Punjab and others etc. versus Rafiq Masih (White Washer) etc. reported in 2015(4) SCC 334, and further considering that the decision of learned Co-ordinate Bench had been confirmed by the Division Bench and not interfered with by the Hon'ble Supreme Court the following directions are issued:
Page 3 of 4 Downloaded on : Wed Oct 18 20:45:50 IST 2023NEUTRAL CITATION C/SCA/19404/2022 ORDER DATED: 17/10/2023 undefined [1] The present petition is not pressed as far as prayer made at paragraph no. 8(A) is concerned and is hereby disposed of.
[2] It is clarified that the impugned order dated 08.09.2022 is not interfered with.
[3] Insofar as the difference of salary, i.e the alleged overpaid amount to the present petitioner as paid to a Degree Holder, the law laid down by the learned Co-ordinate Bench in decision dated 18.02.2022 in case of Patel Rakeshbhai Prabhubhai vs. State of Gujarat in Special Civil Application No. 9823 of 2020 confirmed by the Division Bench in Letters Patent Appeal No. 336 of 2022 and allied matters and not interfered with by the Hon'ble Supreme Court in Special Leave Petition No. 17544-17574 of 2023 dated 18.08.2023, shall hold the field.
7. With the above observations and directions present petition stands disposed of as partly allowed. Rule is made absolute to the aforesaid extent.
(NIKHIL S. KARIEL,J) NIRU Page 4 of 4 Downloaded on : Wed Oct 18 20:45:50 IST 2023