Gujarat High Court
State Of Gujarat & vs Electrical Sub Inspectors Association ... on 28 March, 2014
Author: K.J.Thaker
Bench: Vijay Manohar Sahai, K.J.Thaker
C/LPA/424/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 424 of 2014
In SPECIAL CIVIL APPLICATION NO. 4028 of 2001
With
CIVIL APPLICATION NO. 3377 of 2014
In
LETTERS PATENT APPEAL NO. 424 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
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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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STATE OF GUJARAT & 1....Appellant(s)
Versus
ELECTRICAL SUB INSPECTORS ASSOCIATION CLASS III &
2....Respondent(s)
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Appearance:
MR NJ SHAH, AGP for the Appellant(s) No. 1 - 2
MR AS SUPEHIA, ADVOCATE for MR IS SUPEHIA, ADVOCATE for the
Respondent(s) No. 1 - 3
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Page 1 of 8
C/LPA/424/2014 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 28/03/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. We have heard learned advocates appearing for the parties.
2. This Letters Patent Appeal has been filed by the appellants-original respondents challenging the judgment dated 28.12.2012 passed by the learned Single Judge in Special Civil Application No.4028 of 2001, by which, the learned Single Judge has allowed the writ petition.
3. The brief facts of this case are that the members of the petitioner-association are serving as Electrical Sub-Inspectors, Diploma Holders in the office of respondent No.2. The pay scale of this post is Rs.1400-2300. The channel of promotion from this post is provided to the next higher post of Assistant Electrical Inspector in the pay scale of Rs.2200-4000 in the ratio of two degree holders and one diploma holder. The Government of Gujarat under its resolution dated 5th July, 1991 introduced a scheme of giving of the pay of the next higher promotional post subject to the fulfillment of certain conditions as laid down therein on completion of 9 years, 18 years and 27 years service.
3.1. Under the order dated 7th September, 1992, the members of the petitioner-association were given the next pay scale of the post of Assistant Engineer i.e. Rs.2200-4000 from different dates from 1987 onwards and accordingly their pay has Page 2 of 8 C/LPA/424/2014 JUDGMENT been fixed and arrears were paid or credited. Under the order dated 21st March, 1994, the respondent No.1 decided to cancel the order dated 7th September, 1992 granting higher scale of promotional post of Rs.2200-4000 to the members of the petitioner- association and instead granted intermediate higher scale of Rs.1640/-2900 and ordered recovery of the excess amount paid. This order has been challenged by the petitioner before this Court by filing Special Civil Application No.5922 of 1994.
3.2. The learned single Judge allowed the special civil application and the order dated 21st March, 1994 was quashed and set aside and the respondent No.1 was directed to consider the matter afresh after giving notice and opportunity of hearing to the affected persons either individually or through their union if they so request and consider the matters both of the demand of the pay scale of Rs.1640-2900 as well as of the reduction of the pay scale of Rs.2200-4000 which has been given to them on completion of nine years service in pursuance of the Government Resolution dated 5-7- 1991.
3.3. As a result of the directions of this Court, the respondent No.1 passed a Resolution dated 17.6.1998 and decide to revise the pay scale of Electrical Sub-Inspector from 1400-2300/- to Rs.1640-2900/- with effect from 1.4.1992. No reference in this Resolution was whether the petitioners were entitled to the higher grade pay scale of Rs. 2200-4000/-. As a result of the Resolution dated 17.6.1998, respondent No.2 has issued a circular dated 11.5.2001 to the effect that the petitioners entitled to the higher grade scale of Rs.2000-3500/- and not of Rs.2200-4000/- and that the express amount paid to them should be received. By this petition, the petitioner challenge the above circular to the extent of recovery.
4. The learned AGP for the appellants submitted that the Page 3 of 8 C/LPA/424/2014 JUDGMENT learned Single Judge has failed to consider that as per Government Resolution dated 5.7.1991 scheme for higher grade scale was framed to remove the stagnation in pay scale of employees and same was applicable to the employees completing 9, 18 and 27 years. In para 3 of the Government Resolution dated 5.7.1991, it has been mentioned that the first higher grade scale of pay shall be the scale of pay of the next promotional post. He further submitted that the learned Single Judge has failed to consider that the original petitioner Association filed Special Civil Application No.5922 of 1994 before this Court challenging the amendment dated 21.3.1994, issued by the original respondent No.1 on the ground that the order dated 21.3.1994 was passed without offering any opportunity of hearing the original petitioners.
4.1. The learned AGP for the appellants further submitted that the learned Single Judge has failed to consider that as a result of the direction of the Hon'ble Court, the original respondent No.1 passed a resolution dated 17.6.1998 and revised the regular scale of Electrical Sub-Inspector from Rs.1400-2300 to Rs.1640-2900/- with effect from 1.4.1992. He further submitted that the pay scale of Electrical Sub-Inspector cadre is revised with effect from 1.4.1992 vide order dated 17.6.1998 and higher grade pay scale would be granted only on the basis of this revision with effect from 1.4.1992. Promotion to the cadre of Assistant Electrical Inspector is given from two different feeder cadres. The feeder cadres are junior Assistant Electrical Inspector (degree holder) and Electrical Sub-Inspector (diploma holder) in the ratio of 2:1. The original petitioners are diploma holders. The scheme giving the pay of next higher promotional post subject to the fulfillment of certain criteria as introduced by the Government would be applicable to the original petitioners also.
Page 4 of 8C/LPA/424/2014 JUDGMENT
5. Mr.Supehia, learned counsel for the respondent has supported the judgment of the learned Single Judge and requested that the appeal may be dismissed.
6. We have heard learned counsel for the parties and perused the material on record.
7.1. The State has preferred this appeal after a period of about 346 days. After considering the facts of the case, the learned Single Judge allowed the petition by observing in Para-5 as under:
"5. Having heard both the learned advocates and having gone through the record, I find that it is undisputed that so called excess payment was made to the employees not because some fraud or misrepresentation on the part of the petitioner/ employees. It is settled position of law, and there is also provision in the Rules, viz. Rule 57-A of BCSR, that in such cases no recovery can be ordered. Under these circumstances I am unable to accept the contention of learned A.G.P. That since the wrong fixation of pay was in higher grade scale, Court may take different view. In view of the settled position of law, coupled with provision in Rule 57-A of B.C.S.R., the petition deserves to be allowed and is allowed. Rule made absolute with no order as to costs."
7.2. It is not the case of the appellants that there was any mis-representation whatsoever on the part of the petitioners for getting the higher pay-scale and therefore, even if that order is not rectified, at least, qua the recovery, the petitioners be granted necessary relief as was granted by the Hon'ble the Apex Court in the matter of Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors ., reported in 2009 AIR SCW 1871. Learned Advocate for the petitioner relied upon paras-26, 27 and 28 of the judgment, which read as under:-
Page 5 of 8C/LPA/424/2014 JUDGMENT "26. From the record that has been produced before us, there is not an iota of doubt that officials of the State Government, responsible for issuing Resolution dated 18.12.1989, were ignorant of the amended provisions of the FR. 22-G and it is their inaction, negligence and carelessness which has created all the chaos in the case on hand. Further, until January 1999, the officials of the Education Department of the Government of Bihar were unaware of the amendment in the said rule until the Accountant General, Government of Bihar, on a query being made to him by the Director of Secondary Education, who is the Head of the Department of the Secondary Education in the State of Bihar, vide his letter dated 8.1.1999, responded to the said query that the officials of the Education Department came to know of the amendment in FR. 22-C. That apart, it also appears from the record produced before us that while the Finance Department of the Government of Bihar was in favour of making the amended provisions of FR. 22-C applicable to the appellants-teachers after having come to know that the said rule did not exist and had been substituted, the Department of Human Resource Development, Government of Bihar, wanted to apply the unamended provision to the appellants-teachers so as to make available the benefit of additional increment provided for under FR. 22-C to its teachers, unaware of the fact that even under FR. 22-C they were not entitled to the additional increment as they were not discharging duties and responsibilities of greater importance on the promoted post. This further goes on to show that the authorities in the State of Bihar were not even aware of the basic requirement for grant of additional increment and the decision appears to have been taken without proper application of mind. Otherwise, there was no reason for the Finance Department to state in the counter- affidavit filed before the High Court that any affidavit filed on behalf of the Education Department may be ignored as Finance Department was the competent authority. In this very affidavit, the Finance Department while admitting that the pay fixation by the Education Department was wrong, stated as under:-
"...the fixation of pay under Fundamental Rule 22-C has wrongly been made as it was not in existence. Pay fixation on the basis of a nonexistent rule is a bona fide mistake."
27. This Court, in a catena of decisions, has Page 6 of 8 C/LPA/424/2014 JUDGMENT granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if 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. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, 1995 Supp (1) SCC 18; Shyam Babu Verma vs. Union of India, [1994] 2 SCC 521; Union of India vs. M. Bhaskar, [1996] 4 SCC 416; V. Ganga Ram vs. Regional Jt., Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] vs. Government of India and Ors. (2006) 11 SCC 709; Purshottam Lal Das and Ors., vs. State of Bihar, [2006] 11 SCC 492; Punjab National Bank and Ors. vs. Manjeet Singh and Anr., [2006] 8 SCC 647; and Bihar State Electricity Board and Anr. vs. Bijay Bahadur and Anr., [2000] 10 SCC 99.
28. Undoubtedly, the excess amount mat 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 Page 7 of 8 C/LPA/424/2014 JUDGMENT 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 that has been paid in excess to the appellants-teachers should be made."
7.3. The grounds urged in this appeal do not appeal to us nor persuade us to take a different view than are taken by the learned Single Judge.
8. In the light of the facts and circumstances of the case, this LPA is devoid of any merit and is accordingly dismissed.
9. In view of the disposal of the appeal, Civil Application No. 3377 of 2014 also stands disposed of.
(V.M.SAHAI, J.) (K.J.THAKER, J) Ashish Tripathi Page 8 of 8