Gujarat High Court
Amarsinh Ramsinh Jadeja vs Saurashtra University on 18 August, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/10136/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10136 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 6365 of 2009
With
R/SPECIAL CIVIL APPLICATION NO. 10750 of 2016
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HARKANT S/O JETHALAL PANDYA
Versus
SAURASHTRA UNIVERSITY & 3 other(s)
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Appearance:
MR ANAND B GOGIA(5849) for the Petitioner(s) No. 1
MR BB GOGIA(5851) for the Petitioner(s) No. 1
MS MUSKAN A GOGIA(6624) for the Petitioner(s) No. 1
MR KM ANTANI, AGP for the Respondent(s) No. 2
MR AR THACKER(888) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1,3,4
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CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 18/08/2020
ORAL ORDER
1. All these petitions though have different facts, question of law being common i.e. whether recoveries can be made from the terminal benefits of the employees once their services were regularised and they have worked on the posts in question till they retired from service, are being heard and disposed of by way of this common order.
2. In all these petitions, Mr. Anand Gogia, learned advocate appears for the petitioners. He submits that the case of the petitioners is squarely covered by the decision of this court rendered in Special Civil Application No. 9626 of 2014 which was been confirmed by the Division Bench of this court vide judgement and order rendered in Letters Patent Appeal No. 1298 of 2015.
3. Facts of each petition shall be discussed separately which are as Page 1 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021 C/SCA/10136/2016 ORDER under:
Special Civil Application No. 10136 of 2016 3.1 The petitioner of SCA No. 10136 of 2016 has prayed for quashing and setting aside the decision dated 19.05.2016 by which the respondent -
Saurashtra University ordered recovery of Rs.11,08,628/- from the petitioner and also the order dated 19.10.2007 reducing him to the post of Laboratory Assistant from the post of Lab Technician.
3.2 The petitioner was appointed as Laboratory Assistant in the pay scale of 260-308 on 28.05.1986. The Government by a resolution of 24.10.1981 was pleased to direct an amendment of the resolution of the relevant entry in the resolution from Laboratory Assistant to Laboratory Technician with effect from 01.01.1973. On the basis of the above resolution, the Syndicate issued a notification of 29.01.1987 re- designating the petitioner to the post of Laboratory Technician instead of Laboratory Assistant in the pay scale of 380-600. On 17.02.1987, a pay fixation order was passed qua the petitioner along with one Shri H. S. Joshi, Shri S.S. Parekh, Shri K.S. Desai. On 13.05.1998, the pay scale of the petitioner was fixed in accordance with the fifth pay commission as Laboratory Technician.
3.3 It appears that the Local Auditor on 09.09.2004 opined that the University's action of re-designating the petitioner as Laboratory Technician and granting the pay scale thereof was not in accordance with the practice and therefore an objection was raised. On 19.10.2007, an order was issued by the University reverting the petitioner from the post of Laboratory Technician to the post of Laboratory Assistant on the basis of this objection of local audit. Guidance was then sought by the University from the State Government. Representation was also made by Page 2 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021 C/SCA/10136/2016 ORDER the petitioner. It is on 19.05.2016 that the University passed the impugned order on the ground that the appointment of the petitioner to the post of Laboratory Technician and the pay scale that was granted to him was not in accordance with the rules and regulations and therefore recovery was sought from the petitioner. These orders are under challenge by the petitioner.
3.4 Mr. A.R. Thacker, learned advocate for the respondent - Saurashtra University has taken this court through the affidavit-in-reply filed by the University. Reading the affidavit-in-reply, Mr. Thacker vehemently opposed the petition and supported the order of recovery. He would submit that the petitioner's remedy was to approach the Gujarat University Services Tribunal (hereinafter referred to as 'the Tribunal'). On merits Mr. Thacker would submit that the syndicate of the University had granted the pay scale to the petitioner on the basis of his representation. He would further submit that while granting the pay scale the petitioner had given an undertaking before the University that if the pay scale which has been granted is not approved, the petitioner will refund the same. According to him, the undertaking is binding on the petitioner and he is estopped now from challenging such a recovery. Reliance is placed on the decision in the case of High Court of Punjab and Haryana vs. Jagdev Singh [2016 (Scale) 471] by which Mr. Thacker would submit that the decision of the Apex Court in the case of State of Punjab and Others vs. Rafiq Masih has been distinguished. He would submit that the reliance placed by the petitioner on the decision of this court rendered in Special Civil Application No. 9626 of 2014 and the decision of the Division Bench in LPA No. 1298 of 2015 are not applicable.
Facts of Special Civil Application No. 6365 of 2009 Page 3 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021 C/SCA/10136/2016 ORDER
4. In this petition, the petitioner has challenged the order of the Gujarat University Services Tribunal at Ahmedabad in Application No. 3 of 2001. It appears that the petitioner had approached the Tribunal inter alia contending that he was appointed as a Laboratory Technician on the basis of an advertisement. His pay scale was fixed at Rs.550-900 and after verification his pay scale was revised to Rs.700-1500. It was the case of the petitioner before the Tribunal that once having fixed the pay scale it cannot be replaced and consequential recovery be ordered. The stand of the University before the Tribunal was that it was the petitioner who had made an application to grant the pay scale based on which the University passed a resolution and undertaking was given that in case the pay scale is not approved, he would refund the amount.
4.1 The Tribunal by the decision rendered on 12.09.2008 observed that the resolution of extending the benefit of pay scale of 700-1500 was passed by the petitioner subject to the approval of the State Government but the fact remains that ultimately it was the State Government which rejected the proposal and therefore if the University had acted on its own, without the approval of the State Government and if the pay scale was without approval, the same ought to be recovered.
4.2 Here too, Mr. A.R. Thacker, learned advocate for the respondent University has relied on the affidavit-in-reply and submitted that the petitioner was appointed as a Laboratory Technician in 1969. The pay scale was given subject to the approval of the State Government. The Government through the Local Fund Audit raised an objection regarding the extension of pay scale of Rs.700-1500 and therefore since the pay scale was without approval of the State, recovery of Rs.3,56,698/- was initiated against the petitioner and it was therefore sought to be recovered and the Tribunal had rightly dismissed the application. He also relied on a decision in the case of Chandi Prasad Uniyal and Others vs. State of Page 4 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021 C/SCA/10136/2016 ORDER Uttarakhand and Others reported in (2012) 8 SCC 417 to submit that any amount can be recovered and if there is a mistake and a wrong fixation, recovery can be made.
Facts of Special Civil Application No. 10750 of 2016
5. The petitioner has approached this court with a prayer for quashing and setting aside the order dated 19.05.2016 by which a recovery of Rs.12,97,407/- is ordered from the petitioner. The court does not deem it fit to reiterate the facts in the present case in view of the fact that the order of recovery is on similar lines as that of petitioner of Special Civil Application No. 10136 of 2016.
5.1 Here also, it is the case of the University that the designation of Laboratory Technician from that of Laboratory Assistant was granted to the petitioner without the approval of the State and therefore the recovery is just and proper. A similar stand through an affidavit-in-reply has been taken by the University. Mr. Thacker, learned advocate for the respondent has relied on the affidavit-in-reply so filed and submitted that the decisions relied upon by the petitioner in SCA No. 9626 of 2014 is not applicable.
6. Having heard the learned advocates for the respective parties, it is undisputed that the petitioners were granted the pay scales of Laboratory Technicians on the basis of the University's stand. It was not their case that they were granted such a pay scale by the University on the basis of a misrepresentation on their part. The question has been extensively considered by this court in Special Civil Application No. 9626 of 2014 by this court in judgement dated 10.08.2015 wherein recovery was sought on similar grounds. The relevant portion of decision in the case of Special Civil Application No. 9626 of 2014 dated 10.08.2015 reads as under:
Page 5 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021 C/SCA/10136/2016 ORDER"17. Let me accept the case of both the respondents i.e. the State- respondent as well as University as it is. Even if I hold that it was a mistake, and the University had no power to sanction the requisite pay scale for the post of Laboratory Technician, the same cannot be rectified after a period of 28 years by withholding the retiral benefits of its employee. In one of the recent pronouncements of the Supreme Court in the Case of State of Punjab and others versus Rafiq Masih (White Washer) and others, (2015) 4 SCC 334, the Court has explained in detail as to in which circumstances the recovery is permissible. I may quote the observations made by the Supreme Court in Paras 8 to 18 as under:
"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 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 Page 6 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021 C/SCA/10136/2016 ORDER 46 contained in Part IV of the Constitution of India, dealing with 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 afore-stated 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 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. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters.
12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475, wherein this Court recorded the following observation in paragraph 58:
Page 7 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021 C/SCA/10136/2016 ORDER"58. 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 v. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, Union of India v. M. Bhaskar, (1996) 4 SCC 416, V. Ganga Ram v. Director, (1997) 6 SCC 139, Col. B.J. Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709, Purshottam Lal Das v. State of Bihar, (2006) 11 SCC 492, Punjab National Bank v.
Manjeet Singh, (2006) 8 SCC 647 and Bihar SEB v.
Bijay Bahadur, (2000) 10 SCC 99." (emphasis is supplied)
13. First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it Page 8 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021 C/SCA/10136/2016 ORDER should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee.
14. In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India (1994) 2 SCC 521, wherein this Court observed as under:
"11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330- 560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same." (emphasis is supplied) It is apparent, that in Shyam Babu Verma's case (supra), the higher pay scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the payscale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, Page 9 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021 C/SCA/10136/2016 ORDER and as such, violative of Article 14 of the Constitution of India.
15. Examining a similar proposition, this Court in Col. B.J. Akkara v. Government of India, (2006) 11 SCC 709, observed as under:
"28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery."
(emphasis is supplied) A perusal of the aforesaid observations made by this Court in Col. B.J. Akkara's case (supra) reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied Page 10 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021 C/SCA/10136/2016 ORDER in concluding, that such recovery from employees belonging to the lower rungs (i.e., Class-III and ClassIV - sometimes denoted as Group 'C' and Group 'D') of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India.
16. This Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows:
"59. Undoubtedly, the excess amount that has been paid to the appellant 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 counteraffidavit, 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 appellant 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 appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." (emphasis is supplied) 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, Page 11 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021 C/SCA/10136/2016 ORDER 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 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.
17. Last of all, reference may be made to the decision in Sahib Ram Verma v. Union of India, (1995) Supp. 1 SCC 18, wherein it was concluded as under:
"4. Mr. Prem Malhotra, learned counsel for the appellant, contended that the previous scale of Rs 220- 550 to which the appellant was entitled became Rs 700-1600 since the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any force in this contention. It is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges to Rs 700-1600 but they insisted upon the minimum educational qualification of first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science. The relaxation given was only as regards obtaining first or second class in the prescribed educational qualification but not relaxation in the educational qualification itself.Page 12 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021 C/SCA/10136/2016 ORDER
5 . Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." (emphasis supplied) It would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs.700-1600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed minimum educational qualification (first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science, the degree of M.Lib. Science being a preferential qualification). For those Librarians appointed prior to 3.12.1972, the educational qualifications were relaxed. In Sahib Ram Verma's case (supra), a mistake was committed by wrongly extending to the appellants the revised pay scale, by relaxing the prescribed educational qualifications, even though the concerned appellants were ineligible for the same. The concerned appellants were held not eligible for the higher scale, by applying the principle of "equal pay for equal work". This Court, in the above circumstances, did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary Page 13 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021 C/SCA/10136/2016 ORDER for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post.
18. 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 Class-III and Class-IV service (or Group '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."
18. With a view to salvage the situation a very feeble argument is sought to be made that the petitioner had given an undertaking in writing. In 1986 when the University acted in a particular manner it was expected of the University to have promptly and expeditiously sought the approval of the State Government. Indisputably, the same was not done and the petitioner continued for all these years in the service on a post. There is something called the principle of "legitimate expectation". If no objection was raised at any point of Page 14 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021 C/SCA/10136/2016 ORDER time, then the petitioner cannot be faulted even if it is believed that the petitioner had given an undertaking in writing.
19. If it is the stance of the State Government that the grant was misused or misutilized, then, it is for the Government to take appropriate steps against the University and recover the amount if it deems fit. However, the petitioner who has retired 5 years ago should not be made to suffer.
20. In the result, this application is allowed. The impugned order passed by the Tribunal dated 17.07.2013 is hereby ordered to be quashed and set aside. The University is directed to immediately calculate the retiral benefits which the petitioner would have received upon his attaining superannuation in the year 2010 and pay the amount with 10% interest till the date of the actual payment within a period of 2 months from the date of the receipt of the writ of the order.
21. As clarified above, it shall be open for the State Government to take appropriate steps in that regard against the University. Rule is made absolute to the aforesaid extent. Direct service is permitted.
22. It is for the University to decide how it would pay the amount. I am saying so because the stance of the State Government is that they would not be making any payment to the University. If that be so, then the University shall pay from its own funds."
6.1 The decision was a subject matter of challenge in Letters Patent Appeal No. 1298 of 2015. The Division Bench confirmed the judgement and opined as under:
"9. We are of the opinion that once the Local Audit Fund has sanctioned the pay-scale, thereafter the said office has wrongly raised an objection with regard to grant of pay-scale and recovery of amount from the petitioner. We are also of the opinion that once the appellant University was receiving grant from the State Government, the University cannot be directed to pay the retiral benefits to the petitioner from its own fund and when the amount of salary has been actually paid to the petitioner, the State Government cannot be permitted to recover the said amount from the appellant University. To that extent, we are of the opinion that Page 15 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021 C/SCA/10136/2016 ORDER the direction given by the learned Single Judge against the appellant - University is required to be set aside.
10. At this stage, it is to be noted that this Court passed an order on 15.01.2016, wherein this Court observed in para 3, 5 and 6 as under:
"3. So far as the amount in question is concerned, it has already been deposited with the Tribunal and invested in the Fixed Deposit Receipt. Therefore, instead of 10%, the amount of interest earned on the said amount may be payable and not fixed interest @10% p.a. Mr.Gogia, learned counsel appearing for the respondent no.1- original petitioner submits that the interest earned on the fixed deposit receipt is paid, then his client would not insist for the interest @10% p.a. As observed by the learned Single Judge. xxx xxx xxx
5. Hence, notice for final disposal returnable on 10.2.2016. By ad-interim order, the operation and implementation of the order passed by the learned Single Judge so far as making observations enabling the State Government to recover the amount from the University is concerned shall remain stayed and suspended. It is clarified that consequently, respondent no.1- original petitioner would be entitled to the amount of retiral benefits but the interest earned on the said investment in the fixed deposit receipt shall be paid to him and the direction of the learned Single Judge so far as payment of interest @10% p.a. Would no more be required to be implemented since the learned counsel appearing for respondent no.1-original petitioner has also declared that the original petitioner shall be satisfied with the interest earned on the fixed deposit receipt after deposit of the said amount with the Tribunal shall be sufficient.
6. It has been reported that there are three fixed deposit receipts-one of Rs.6,24,396/- which has matured on 7.1.2016, another of Rs.4,30,616/- which has matured on
7.1.2016 and third of Rs.44,515/- which is maturing on 17.7.2016. As there is now no loss of interest so far as the aforesaid fixed deposit receipts which have matured on 7.1.2016, subject to further orders, the respondent no.1- original petitioner shall be paid the amount of Rs.6,24,396/- + Rs.4,30,616/- + accrued interest, if any. The payment shall be made within 15 (fifteen) days from today. The payment Page 16 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021 C/SCA/10136/2016 ORDER for the remaining amount of Rs.44,515/- shall be considered on the next date of hearing."
11. Thus, the petitioner has already received an amount of Fixed Deposits of Rs.6,24,396/- and Rs.4,30,616/- with interest. However, now the remaining amount of third Fixed Deposit, which has been matured on 17.07.2016, of Rs.44,515/- with accrued interest shall be paid to the petitioner. As the petitioner has not insisted for interest @ 10% per annum as directed by the learned Single Judge, the order passed by the learned Single Judge is modified to that extent.
12. Accordingly, the observations and directions issued by the learned Single Judge in para 21 and 22 of the judgment dated 10.08.2015 impugned in this appeal are hereby set aside. The appeal is allowed to the aforesaid extent only.
13. In view of disposal of the main appeal, civil application does not survive and accordingly it stands disposed of."
7. Accordingly, it is not in dispute that if the pay scale was granted to the petitioners without their fault and there was no misrepresentation made by the petitioners the same cannot be recovered now after such a long period. Even otherwise, as discussed by this court in Special Civil Application No. 9626 of 2014, there is no reason why this court should be taking a view different than the one taken by the co-ordinate bench of this court and which was confirmed by way of the Letters Patent Appeal No. 1298 of 2015.
8. Accordingly, petitions are allowed. The orders impugned in the petitions are quashed and set aside. As far as SCA No. 10136 of 2016 and SCA No. 10750 of 2018 are concerned, since there was an ad- interim relief against recovery and now since the petitions are allowed there shall be no recovery. As far as SCA No. 6365 of 2009 is concerned, since the order of the Tribunal in Application No. 3 of 2001 dated 12.09.2008 is quashed and set aside, the respondent University is directed to refund the amount which is recovered from the petitioner pursuant to Page 17 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021 C/SCA/10136/2016 ORDER the judgement and order of the Tribunal. Rule is made absolute accordingly. No costs.
(BIREN VAISHNAV, J) Divya / Page 18 of 18 Downloaded on : Thu Jan 07 02:10:31 IST 2021