Gujarat High Court
Maheshkumar L Thaker vs State Of Gujarat & 3 on 25 March, 2015
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/1399/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1399 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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MAHESHKUMAR L THAKER....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR PH PATHAK, ADVOCATE for the Petitioner
MR DM DEVNANI, ASSISTANT GOVERNMENT PLEADER for the Respondents
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 25/03/2015
ORAL JUDGMENT
1. Leave to amend the prayerclause at Paragraph 14(A) is granted. The necessary amendment be Page 1 of 27 C/SCA/1399/2011 JUDGMENT carried out forthwith.
2. The challenge in this petition is to the order dated 27.02.2008, issued by the Superintendent of Police, Surendranagar, respondent No.3 herein, whereby the benefit of higher payscale granted to the petitioner has been withdrawn and recovery has been ordered to be made from the petitioner. It is further prayed that the respondents may be directed to return the amount recovered, if any, to the petitioner with interest at the rate of 18% per annum.
3. Briefly stated, the facts of the case are as follows: The petitioner was appointed as an Unarmed Police Constable in the Gujarat State Police by an order dated 21.01.1969. He was promoted to the post of Head Constable, GradeII, on 17.07.1978. The petitioner was granted promotion as Assistant Sub Inspector (Unarmed Head Constable, GradeI) with effect from 01.01.1981. As the petitioner had remained on the post of Assistant Sub Inspector (Unarmed Head Constable, Page 2 of 27 C/SCA/1399/2011 JUDGMENT GradeI) for nine years, he was given the benefit of higher payscale with effect from 01.01.1990, by an order dated 22.05.2001, as per the Government Resolution dated 16.08.1994, which provides for the grant of higher payscale to employees who have remained stagnant in the same cadre due to the absence of, or restricted chances, of promotion. The higher payscale granted to the petitioner was the payscale of the post of Police Sub Inspector (PSI). Accordingly, by an order dated 06.06.2001, the pay of the petitioner was fixed in the scale of Rs.55001759000 with effect from 01.01.1990, as per the Government Resolution dated 16.08.1994. The petitioner, thereafter, cleared the departmental examination held for promotion from the post of Assistant Sub Inspector to the post of PSI in the year 1998 and was promoted as PSI by an order dated 24.11.1998, with effect from 05.12.1998. There was no difference in the pay scale of the petitioner after his promotion, as he was already drawing the payscale of the post to which he was promoted. The petitioner served Page 3 of 27 C/SCA/1399/2011 JUDGMENT satisfactorily as PSI, for about nine years in Kutchh and Surendranagar Districts and thereafter applied for voluntary retirement. By an order dated 31.08.2007, the petitioner was permitted to retire voluntarily. After retirement, respondent No.3 sent the pension papers of the petitioner to the office of respondent No.4, Director, Pension and Provident Fund, for the fixation of the pension of the petitioner. Respondent No.4 informed respondent No.3 that, as per the communication dated 27.01.2006 of the Home Department, employees who have not passed the departmental examination were not entitled to higher payscales. For this reason, the case of the petitioner was returned to the office of respondent No.3. Thereafter, the impugned order dated 27.02.2008, directing the cancellation of the benefits of higher pay scale granted to the petitioner was passed by respondent No.4 and recovery was directed to be effected.
4. As the recovery of Rs.2,31,631/ was contemplated from the retiral dues of the Page 4 of 27 C/SCA/1399/2011 JUDGMENT petitioner, vide letter dated 15/19.04.2010, the petitioner approached this Court by way of the present petition. At the time of issuance of notice in the petition, this Court, vide order dated 23.02.2011, granted adinterim relief restraining the respondents from recovering the amount of Rs.2,31,631/. The interim order has been confirmed at the time of the issuance of Rule in the petition. It is in operation as of date.
5. Mr.P.H.Pathak, learned advocate for the petitioner, has made elaborate submissions, the gist of which is recorded hereinbelow:
(I) That the impugned order dated 27.02.2008, cancelling the grant of higher pay scale to the petitioner and ordering recovery to be made, is the unilateral decision of respondent No.3. The petitioner was not put to notice or granted an opportunity of hearing before the passing of the said order. (II) The petitioner has retired voluntarily with effect from 31.08.2007, and the impugned Page 5 of 27 C/SCA/1399/2011 JUDGMENT order has been passed after his retirement, which is not permissible in law.
(III) There is no requirement of passing the departmental examination for the grant of higher payscale after nine years of service in the case of Unarmed Head Constables, therefore, the premise on which the impugned order is passed is erroneous. This aspect is proved by the communication dated 30.08.1993, received by the petitioner in reply to his query under the Right to Information Act, 2005, from the Deputy Administrative Officer in the office of respondent No.2. It is clearly stated therein that in the case of Unarmed Police Constables, the passing of the departmental examination is not compulsory.
(IV) In any case, no departmental examinations were held by the respondents from the year 1989 to 1998. The petitioner completed nine years of service as Assistant Sub Inspector (Unarmed Head Constable, GradeI), in the year 1990 and was granted higher payscale with Page 6 of 27 C/SCA/1399/2011 JUDGMENT effect from 01.01.1990. There can be no question of the petitioner appearing in a departmental examination that was never conducted by the respondents. Though it is the case of the petitioner that the passing of a departmental examination for the grant of higher payscale is not required in his case, the respondents have themselves failed to hold the examinations during the relevant period. The benefits of higher payscale granted to the petitioner cannot be cancelled by the respondents for no fault of his own, especially after a period of approximately 18 years.
(V) Other similarly situated persons as the petitioner, to whom the benefits of higher pay scale have been granted after completion of nine years of service and from whom the said benefits have not been withdrawn or recovery made, have been mentioned in the memorandum of the petition at GroundE. A copy of the order dated 07.09.1993, granting the benefit of higher pay scale to 61 similarly situated persons as the petitioner, is annexed as AnnexureM to the Page 7 of 27 C/SCA/1399/2011 JUDGMENT petition. There is no denial to this aspect in the affidavitinreply filed by respondent No.3, therefore, it is clear that the petitioner is being discriminated against by the respondents. (VI) That the petitioner, who is a senior citizen, and has retired in the year 2007, would face great hardship if such a huge amount is permitted to be recovered from his retiral dues. The petitioner has to make two ends meet in the limited amount of pension that is available to him. The adverse effect of the recovery has already been given in the pension being received by the petitioner, which has added to his financial hardships and woes.
(VII) In a recent judgment in the case of State of Punjab and others v. Rafiq Masih (White Washer) etc. 2015 AIR SCW 501, the Supreme Court has enumerated certain situations wherein recoveries by the employer would be impermissible in law. One of the situations is when recovery is made from an employee belonging to a ClassIII post. The other situation is Page 8 of 27 C/SCA/1399/2011 JUDGMENT where recovery is made from a retired employee. The petitioner falls under both these criteria and, as per the judgment of the Supreme Court, no recovery can made from him.
6. On the above grounds, it is prayed that the prayers made in the petition be granted and the petition allowed.
7. The petition has been vehemently opposed by Mr.D.M.Devnani, learned Assistant Government Pleader, by making the following submissions:
(a) As per the Government Resolution dated 16.08.1994, especially Clause III(5) thereof, the benefit of higher payscale can be granted to an employee upon fulfilling certain conditions, one of which is the passing of a departmental examination, where prescribed.
Thus, it was incumbent upon the petitioner to pass the departmental examination before being granted the benefit of higher payscale. The order granting higher payscale to the petitioner is erroneous and has rightly been withdrawn by the impugned order.
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(b) As per Rule 165 of the Gujarat Police
Manual, PartI, the holding of a departmental examination is necessary for the promotion of Head Constables to the rank of Police Sub Inspectors. From this rule as well, it is evident that the petitioner was required to pass the departmental examination before the grant of the higher payscale to him with effect from 01.01.1990. The grant of the higher payscale of Police Sub Inspector to the petitioner is, therefore, contrary to Rule 165 of the Gujarat Police Manual and the Government Resolution dated 16.08.1994. The recovery directed to be made is, therefore, just and proper. Merely because the departmental examination was not held between the years 1989 to 1998, would not change the position of law or entitle the petitioner to get a higher payscale contrary to the Rules and the Policy.
8. On the above grounds, it is submitted that the petition be rejected.
9. This Court has heard learned counsel for the Page 10 of 27 C/SCA/1399/2011 JUDGMENT respective parties, perused the averments made in the petition, contents of the affidavitin reply and rejoinder filed by respondent No.3 and the petitioner, respectively, and other documents on record. This court has also accorded thoughtful consideration to the submissions advanced at the Bar.
10. There is no dispute regarding the fact that the impugned order withdrawing the higher payscale granted to the petitioner with effect from 01.01.1990, has been passed on 27.02.2008, that is, after about 18 years. It is also an admitted fact that before the passing of the impugned order, the petitioner was not heard. It is not the case of the respondents that the grant of the higher payscale to the petitioner was a result of a fraud or misrepresentation on the part of the petitioner. It is the case of the respondents that when the pension papers of the petitioner were being processed, respondent No.4, Director of Pension and Provident Fund, brought to the notice of respondent No.3, the aspect that the petitioner had not passed the Page 11 of 27 C/SCA/1399/2011 JUDGMENT departmental examination before being granted a higher payscale. This triggered off the process of scrutiny, resulting in the passing of the impugned order.
11. It is the case of the petitioner that there is no requirement for passing the departmental examination for the grant of a higher payscale. The petitioner had made a query in this regard under the Right to Information Act, 2005, and received a reply dated 30.08.1993. In the said reply, it is categorically stated that it is not compulsory to pass the departmental examination for the grant of higher payscale in the case of Unarmed Head Constables, GradeI. This document is to be found at AnnexureL at running page54 to the petition. It fortifies the submissions advanced by the learned advocate for the petitioner. There is no denial to this document in the affidavitinreply filed on behalf of respondent No.3.
12. It may be noted that Government Resolution dated 16.08.1994, contemplates the grant of higher Page 12 of 27 C/SCA/1399/2011 JUDGMENT payscale to employees who have remained stagnant in the same cadre due to the absence of, or restricted chances of, promotion. It is contemplated in the said Government Resolution that higher payscale can be granted after completion of nine years of service in the same cadre. Paragraph3(5) of the said Government Resolution states that higher payscale can be granted to eligible employees subject to their satisfactory service and passing of the departmental examination, where prescribed. Learned Assistant Government Pleader has laid great emphasis upon this Government Resolution and has submitted that this Government Resolution can be taken to mean that the petitioner was required to pass the departmental examination before he could be granted the higher payscale.
13. In the view of this Court, such construction of the said Government Resolution on the part of the learned Assistant Government Pleader is incorrect, as Paragraph 3(5) of the said Government Resolution clearly states that higher Page 13 of 27 C/SCA/1399/2011 JUDGMENT payscale will be granted after passing the departmental examination, where prescribed. In the present case, no Government Resolution, Rule or any other document, communication or decision of the State Government has been brought on record or produced before this Court, which states that the passing of the departmental examination in the case of an Unarmed Head Constable, is necessary or prescribed as a condition precedent to granting the benefit of higher payscale.
14. The learned Assistant Government Pleader has further relied upon Rule 165 of the Gujarat Police Manual, PartI. The said Rule is reproduced hereinbelow:
"165. Head Constables - (1) Departmental Examination qualifying for promotion to Sub Inspectors:
(a) The departmental examination for promotion of Head Constable to the rank of SubInspectors will be held in the month of May each year at District Headquarters on the dates fixed by the Inspector General of Police. The written and oral tests will form parts of the same examination and only one result sheet will be issued......."Page 14 of 27
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15. As is evident from a perusal of the above Rule, it pertains to the departmental examination qualifying for promotion to Sub Inspectors and states that the departmental examination for promotion of Head Constables to the post of Police Sub Inspectors will be held in the month of May each year at the District Head Quarters on the dates fixed by the Inspector General of Police. The Rule further goes on to prescribe the procedure to be followed for holding the examinations. This Rule is clearly applicable in cases of promotion of Head Constables to the rank of Police Sub Inspectors. It is nowhere stated that it would be applicable to cases of grant of higher payscale, without promotion.
Promotion to a substantive post and grant of higher payscale after completion of nine years of service in the cadre to avoid stagnation, are two entirely different things. The learned Assistant Government Pleader has fairly admitted as such. In the present case, the petitioner has passed the departmental examination in the year 1998 and has been promoted to the substantive Page 15 of 27 C/SCA/1399/2011 JUDGMENT post of PSI on regular basis on 05.12.1998. The petitioner has, therefore, fulfilled the requirement of Rule 165 of the Police Manual. It cannot be said that there is an infringement of the said Rule in the case of the petitioner, so as to justify the action of the respondents in withdrawing the benefit of higher payscale.
16. In the above view of the matter, this Court is of the view that the petitioner has a strong case on merits which the respondents have been unable to dislodge. It is an admitted position as per the affidavitinreply filed by respondent No.3, that no departmental examinations were held between 1989 to 1998. If such was the position, the petitioner can hardly be blamed by the respondents for not passing an examination that was never conducted by them, even if it is assumed that the passing of such examination was necessary.
17. The petitioner has annexed an order dated 07.09.1993, enumerating the names of 61 Unarmed Head Constables, GradeI, similarly situated to Page 16 of 27 C/SCA/1399/2011 JUDGMENT him, who were granted higher payscale after completion of nine years of service and whose benefits have not been withdrawn or recovery effected from them. There is no answer to this in the affidavitinreply filed by respondent No.3. It, therefore, appears that the submission of the learned advocate for the petitioner, that the petitioner has been discriminated, is borne out from the record.
18. Another blatantly unjustified action on the part of the respondents is that the impugned order dated 27.02.2008 has been passed unilaterally by respondent No.3, without issuance of notice to the petitioner or granting him an opportunity of hearing. As such, the said order is bad on the ground of the violation of the principles of natural justice as it inflicts civil consequences upon the petitioner.
19. The petitioner has retired voluntarily with effect from 30.08.2007. The adverse effect of the impugned order of recovery is being borne by the petitioner even in respect of his retiral Page 17 of 27 C/SCA/1399/2011 JUDGMENT benefits, which have been substantially reduced as a result thereof. The petitioner is a senior citizen who has to live the rest of his life on the amount of pension granted to him. This amount has further shrunk due to the impugned order. A retired person has to meet with the requirements of food, clothing and shelter on limited resources. He may also have to look after the needs of those dependent upon him. It is possible and probable that in the declining years of life a retired employee may be beset by ailments that require medical treatment, which is quite expensive in this day and age. It may be kept in mind that pension is not a bounty but the rightful claim of an employee after long years of service. It is evident that the petitioner would face great hardship due to the passing of the impugned order. Further, the recovery is sought to be effected after about 18 years of the grant of higher payscale, which can be said to be a highly unreasonable period of time.
20. Even if it is assumed that the payfixation Page 18 of 27 C/SCA/1399/2011 JUDGMENT order was passed mistakenly by the respondents, which does not appear to be the position in the present case, the Supreme Court has, in the case of State of Punjab and others v. Rafiq Masih (White Washer) etc. (supra), unequivocally held that the Court must weigh the hardship faced by the employee with any hardship that the employer may face and arrive at a conclusion as to whose hardship would be more. In the present case, if the equities are weighed in the manner observed by the Supreme Court, it is obvious that the hardship that the petitioner would face due to the impugned order would far outweigh any hardship faced by the State Government as a result of the grant of higher payscale to the petitioner. Certain relevant extracts of the above judgment, which would squarely apply to the present case, are required to be reproduced hereinbelow:
"7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be Page 19 of 27 C/SCA/1399/2011 JUDGMENT interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court.
8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the Page 20 of 27 C/SCA/1399/2011 JUDGMENT recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.
9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality, can be found in Articles 14 to 18, contained in Part III of the Constitution of India, dealing with "Fundamental Rights". These Articles of the Constitution, besides assuring equality before the law and equal protection of the laws; also disallow, discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracized section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39A, 43 and 46 contained in Part IV of the Constitution of India, dealing with Page 21 of 27 C/SCA/1399/2011 JUDGMENT the "Directive Principles of State Policy".
These Articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice - social, economic and political, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections.
10. In view of the aforestated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of Page 22 of 27 C/SCA/1399/2011 JUDGMENT India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.
11. ... ... ... Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have Page 23 of 27 C/SCA/1399/2011 JUDGMENT substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation. ... ... ...
12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to ClassIII and ClassIV service (or Group Page 24 of 27 C/SCA/1399/2011 JUDGMENT 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
21. It is clearly stated by the Supreme Court in Paragraph12 the abovequoted judgment that it would be impermissible for the employer to effect recovery from employees belonging to ClassIII posts and retired employees. Besides, Page 25 of 27 C/SCA/1399/2011 JUDGMENT the recovery is sought to be made after 18 years of the payfixation order. The petitioner falls in the first three categories. His case is, therefore, further fortified by the above judgment.
22. The cumulative effect of the above discussion is that this Court is of the considered view that the impugned order dated 27.02.2008 is unjustified, illegal and unsustainable in law, therefore, it deserves to be quashed and set aside.
23. In the result, the petition is allowed. The impugned order, dated 27.02.2008, passed by respondent No.3, is quashed and set aside. The respondents are directed to pass fresh consequential orders ensuring that the petitioner is granted full pensionary benefits with effect from 31.08.2007, that is, from the date of his retirement, as though the impugned order had not been passed. The amount already deducted from the pension of the petitioner shall be returned to him with interest at the Page 26 of 27 C/SCA/1399/2011 JUDGMENT rate of 8% per annum from the date it was deducted till the date of payment. The above exercise shall be undertaken and completed by the respondents within a period of six weeks from the date of the receipt of a copy of this judgment.
24. Rule is made absolute in the aforesaid terms. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) sunil Page 27 of 27