Gujarat High Court
Pravinkumar Gordhandas Patel vs State Of Gujarat on 6 April, 2026
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4740 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 4743 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 4744 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 4745 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 4746 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 4747 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 4748 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 4749 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 4750 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 4751 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 4752 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd./-
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Approved for Reporting Yes No
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PRAVINKUMAR GORDHANDAS PATEL
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR GAURAV CHUDASAMA(5660) for the Petitioner(s) No. 1
MR. JV PADHIYAR(6966) for the Petitioner(s) No. 1
MR HENIL SHAH, GOVERNMENT PLEADER for the Respondent(s) No. 1,2,3,4
MR RB THAKOR(6743) for the Respondent(s) No. 5
NOTICE SERVED for the Respondent(s) No. 6
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CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 06/04/2026
COMMON ORAL JUDGMENT
1. Heard, learned Advocate, Mr. Chudasama, appearing for the petitioners, learned AGP, Mr. Shah, and learned Advocate, Mr. Thakor, appearing for the respective Respondents in these matters.
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2. Considering the fact that the issue involved in these matters is identical, with the consent of the learned Advocates for the parties, all these matters are taken-up for hearing and final disposal, today. Hence, Rule. Learned AGP, Mr. Shah, and learned Advocate, Mr. Thakor, waive service for the respective Respondents.
3. For the sake of convenience, as the facts of all these matters are more or less similar, Special Civil Application No. 4740 of 2023 is treated as the lead matter and the facts are drawn, there from and the learned Advocates for the parties made their submissions in respect of facts of that petitioner, as the legal point involved in these petition is the same.
4. The facts, as stated in Special Civil Application No. 4740 of 2023, are as under;
The petitioner, therein, was appointed as an Assistant Teacher in Primary Section in Smt. M.U. Pethani Adarsh Primary School, Taluka: Deesa, District: Banaskantha, i.e. Respondent No.6-school and the same was done on receiving approval of Respondent Nos. 4 and 5 on 15.06.1989. Thereafter, in view of the Government Resolution dated 14.08.1998, which provided for the First Higher Pay Scale to the employees, who had no promotional Page 2 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined post and therefore, in view of the less chance of promotion, on completion of 9 years' service an employee was held to be entitled to get the First Higher Pay Scale. Hence, the Respondents, vide order dated 22.03.1999, granted the First Higher Pay Scale to the petitioner, as the petitioner had completed 9 years' service.
4.1 Thereafter, as per GR dated 02.07.2007, as the petitioner had completed 20 years' of service, he was granted the Second Higher Pay Scales with effect from 15.06.2009 and thereafter, the petitioner was being paid the salary, accordingly. The aforesaid fact was also entered into the Service Book of the petitioner and the petitioner continued to get the Second Higher Pay Scales for the period of about 14 years and then suddenly, Respondent No.3 issued an order dated 01.03.2023 to the Principals of as many as eight schools of the Banaskantha District, whereby, the benefit of grant of the Higher Pay Scale was withdrawn and the pay scale of the petitioner was revised along with the grade pay. The schools were also directed to revise the pay-scale of the petitioner, as per the entitlement, and to refund the excess amount received by the petitioner by April, 2023.
4.2 The petitioners have challenged the aforesaid order by way of the present petitions and the Coordinate Bench of this Court vide order dated 17.03.2023, by relying upon the Page 3 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined decision of the Hon'ble Apex Court in the case of 'State of Punjab & Others Vs. Rafiq Masih & Others', reported in (2015) 4 SCC 334, stayed the recovery proceedings, till further orders. All the petitioners have been enjoying the aforesaid protection, whereby, recovery against the petitioners is stayed.
5. However, according to learned Advocate, Mr. Chudasama, at present, the pay-scale of all the petitioners have been revised and they are being paid less, than, what they were getting earlier, pursuant to the order dated 22.03.1999 and the order of 2009, whereby, the petitioners were granted the First and the Second Higher Pay Scales.
5.1 It was, further, submitted that the petitioners have accepted the revised pay-scale, which is less than the pay-scale, they were getting earlier, but, they are restricting these petitions only qua the aspect of recovery of excess amount, allegedly paid to the petitioners. According to learned Advocate, Mr. Chudasama, the petitioners were paid the First and the Second Higher Pay Scales, without there being any misrepresentation or fraud on the part of the petitioners. It was submitted that, it is not even the case of the Respondents that the petitioners were granted the First and the Second Higher Pay Scales, pursuant to some misrepresentation on the part of the petitioners.
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5.3 By relying upon the aforesaid decision, it was submitted that the recovery is impermissible and therefore, the recovery imposed against the petitioner vide order dated 01.03.2023 is required to be quashed and set aside to the extent that, it provides for recovery of excess amount paid to the petitioners.
5.4 Learned Advocate, Mr. Chudasama, also relied on the decision of this Court, rendered in the case of 'Jethalal Ambalal Patel Vs. Anand Agricultural University & Another', Dated: 19.12.2024, in Special Civil Application No. 15865 of 2021 and more particularly, the observations made in Paragraphs- 6.1.4 and 6.1.5 thereof and also on the decision of the Apex Court in the case of 'Pani Ram Vs. Union of India & Ors.', reported in AIR 2022 SC 182, submitted that even if, the Respondents may contend that the aforesaid higher pay-scales were granted to the petitioners on the basis of undertaking given by them, in view of the decision of the Hon'ble Apex Court in the case of 'Pani Ram' (Supra), even if, such undertakings were given Page 5 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined by the petitioners, recovery cannot be imposed on the petitioners by the Respondents.
5.5 Learned Advocate, Mr. Chudasama, therefore, prayed that the impugned order dated 01.03.2023 be quashed to the extent, it provides for recover of excess amount paid by the Respondents to the petitioners, as the same was not claimed by the petitioners either on the basis of some misrepresentation or fraud and thereby, it was prayed that these petitions be allowed.
5.6 At this juncture, learned Advocacy, Mr. Chudasama, tendered a consolidated table, which contained the details of the petitioners herein and which runs as under;
Sr. Special Date of Order of Date of Order Date of Order of
No. Civil Appointmen First Entitlem of Entitle the
Applicati t Order Higher ent For Second ment Recovery
on Pay the First Higher For the Passed
Scale Higher Pay Second By
Pay Scale Higher Responde
Scale Pay nt No.4
Scale
1 SCA/ 15.06.89 22.03.99 15.06.98 01.07. 15.06. 01.03.
4740/ (5000- 2009 2009 2023
2023 150-
8000)
2 SCA/ 24.09.87 25.04.97 24.09.96 26.06/ 24.09. 01.03.
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5 SCA/ 19.07.90 27.11.99 01.07.99 23.07. 01.03.
4746/ (5000- 2010 2023
2023 150- 23.07.99
8000)
6 SCA/ 10.06.90 18.06. 18.06.99 18.06. 18.06. 01.03.
4747/ 2000 2010 2010 2023
2023
01.07.
2010
7 SCA/ 21.06.89 17.04.99 21.06.98 21.06. 26.05. 01.03.
4748/ (5000- 2009 2008 2023
2023 150-
8000) 21.06.
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NEUTRAL CITATION
C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026
undefined
2009
Option
dated
01.07.
2009
8 SCA/ 14.06.99 11.09. 14.06.08 - - 01.03.
4749/ 2008 2023
2023 (5000-
150-
8000)
9 SCA/ 16.07.89 18.08.98 16.07.98 16.07. 26.05. 01.03.
4750/ (5000- 2009 2008 2023
2023 150- 16.07.
8000) 2009
10 SCA/ 14.06.99 14.06. 14.06. - - 01.03.
4751/ 2008 2008 2023
2023 21.05.99 (5000-
150-
8000)
11. SCA/ 04.07.2000 23.10. 01.10. - - 01.03.
4752/ 2012 2012 2023
2023
6. Learned AGP, Mr. Shah, vehemently opposed these petitions and submitted that the petitioners are not entitled to the higher pay-scales, which were granted to them. It was Page 8 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined submitted that the First and the Second Higher Pay Scales granted to the petitioners were higher than, their actual entitlement and hence, upon noticing the said mistake, the same were withdrawn vide order dated 01.03.2023 and now, the amount, which is paid in excess to the petitioners, is being demanded back, which cannot be said to be illegal in any manner.
6.1 It was, further, submitted that it is the well-settled by now that, if, a mistake is committed, the authority has all the rights to correct such a mistake and therefore, placing the petitioners in the revised pay-scale or imposing recovery on them, for correcting such a mistake in calculating their pay-scale, cannot be said to be illegal and therefore, all these petitions are required to be dismissed.
6.2 In support of his submissions, learned AGP, Mr. Shah, placed reliance on the decision of the Hon'ble Apex Court in the case of 'High Court of Punjab & Haryana Vs. Jagdev Singh', reported in 2016 (14) SCC 267 and submitted that in the aforesaid case, the concerned employee had given an undertaking to repay / refund the excess amount paid to him, where, the Hon'ble Apex Court permitted recovery of such excess amount paid to the concerned employee and therefore, he prayed that these petitions be dismissed.
6.3 Learned AGP, Mr. Shah, next placed reliance on the Page 9 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined decision of the Hon'ble Apex Court in the case of 'Balbir Singh Bhandari Vs. State of Uttarakhand', rendered in Civil Appeal No. 5933 of 2023 and the allied matters, Dated:
10.01.2024, wherein also, the Hon'ble Apex Court confirmed the decision of the Punjab & Haryana High Court by permitting recovery of excess amount paid by the Respondents to the petitioners, therein, as the same was paid by creating a separate class and the said class was given a favourable treatment.
6.3.1 It was submitted that in the instant case also, all the petitioners were treated differently and not in consonance with their entitlement and therefore, in view of the above referred judgments of the Hon'ble Apex Court, the recovery sought to be made from the present petitioners cannot be interfered with and the order imposing recovery on the petitioners may not be interfered with by this Court.
7. Learned Advocate, Mr. Thakor, appearing for the Respondent - DPEO Banaskantha submitted that the alleged, excess amount was pad by the District Panchayat, Banaskantha and therefore, the Respondents have a right to recover the excess amount paid to the petitioners, on noticing the mistake.
7.1 However, learned Advocate, Mr. Thakor, could not point out that the aforesaid benefits, i.e. the First and the Page 10 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined Second Higher Pay Scales, were granted to the petitioners on account of any misrepresentation or fraud on the part of the present petitioners and therefore, he prayed that the appropriate orders may be passed.
8. I have heard the learned Advocates for the parties and have perused the material on record and I have also considered the submissions made by both the sides and what is noteworthy is the fact that none of the learned Advocates, appearing for the respondents, i.e. learned AGP, Mr. Shah, and learned Advocate, Mr. Thakor, could point out that the benefits of the First and the Second Higher Pay Scales were availed by the petitioners on the basis of some misrepresentation or fraud. In fact, the impugned order dated 01.03.2023 is also totally silent about any element of fraud or misrepresentation on the part of the present petitioners and therefore, the learned Advocates for the Respondents could not point out anything to show that the petitioners availed the benefits of the First and the Second Higher Pay Scales by way of misrepresentation or fraud. Therefore, this matter is required to be considered, keeping in mind the fact that, when the First and the Second Higher Pay Scales were granted to the petitioners by the Respondent-authorities on its own, without there being any misrepresentation or fraud alleged against the petitioners, can such order be said illegal, especially, when such benefits have already been withdrawn and the recovery is Page 11 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined imposed.
8.1 As noted earlier, during the course of argument, learned Advocate, Mr. Chudasama, submitted that, at present, the petitioners are receiving their salary, as per the revised pay-scale, which is lower than the First and the Second Higher Pay Scales, which were alleged to have been granted to the petitioners erroneously. Therefore, what is challenged by way of this petition by the petitioners is the action of the Respondents of imposing recovery and directing them to refund or repay the excess amount paid to them.
8.2 I have also taken into consideration the impugned order dated 01.03.2023, which has already been stayed by the Coordinate Bench vide order dated 17.03.2023 and the recovery is not effected, till date. In the above factual background, the issue on hand is required to be considered by taking into consideration various judicial pronouncements relied on by the learned Advocates for the parties.
8.3 In the case of 'Jogeswar Sahoo & Ors.' (Supra), the Hon'ble Apex Court, in Paragraphs- 8 to 13, has observed as under, where, the Hon'ble Apex Court has considered the various judgments, by which the issue is settled;
Page 12 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined "8. The law in this regard has been settled by this Court in catena of judgments rendered time and again; Sahib Ram vs. State of Haryana1, Shyam Babu Verma vs. Union of India2, Union of India vs. M. Bhaskar3 and V. Gangaram vs. Regional Jt. Director4 and in a recent decision in the matter of Thomas Daniel vs. State of Kerala & Ors.5.
9. This Court has consistently taken the view that if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee or 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, such excess payments of emoluments or allowances are not recoverable. It is held that such relief against the recovery is not because of any right of the employee but in equity, exercising judicial discretion to provide relief to the employee from the hardship that will be caused if the recovery is ordered.
10. In Thomas Daniel (supra), this Court has held thus in paras 10, 11, 12 and 13:
"10. In Sahib Ram v. State of Haryana1 this Court restrained recovery of payment which was given under the upgraded pay scale on account of wrong construction of relevant order by the authority concerned, without any misrepresentation on part of the employees. It was held thus:Page 13 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026
NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined "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."
11. In Col. B.J. Akkara (Retd.) v. Government of India2 this Court considered an identical question as under:
"27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-6-1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Page 14 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121], Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652]):
(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.
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 Page 15 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined 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.
29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7-6-1999 till the issue of the clarificatory circular dated 11-9-2001. Insofar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made."
12. In Syed Abdul Qadir v. State of Bihar3 excess payment was sought to be recovered which was made to the appellants- teachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The appellants therein contended that Page 16 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellants cannot be held responsible in such a situation and recovery of the excess payment should not be ordered, especially when the employee has subsequently retired. The court observed that in general parlance, recovery is prohibited by courts where there exists no misrepresentation or fraud on the part of the employee and when the excess payment has been made by applying a wrong interpretation/understanding of a Rule or Order. It was held thus:
"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 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 appellant teachers submitted that majority of the beneficiaries have either Page 17 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined 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."
13. In State of Punjab v. Rafiq Masih (White Washer)4 wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:
"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 employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to Page 18 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined 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.
xxxxxxxxx
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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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.Page 19 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026
NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined
(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.""
8.4 A cumulative reading of the aforesaid observations, which covers the entire law about the recovery right from 1994 to till 2022, which would indicate that when such benefits of the First and the Second Higher Pay Scale or excess payment were availed by the petitioners, without there being any misrepresentation or the fraud alleged against the petitioners and such benefits were granted by the Respondents on their own, recovery of the benefits already granted to the petitioners is impermissible.
8.4.1 During the course of arguments, learned Advocate, Mr. Chudasama, also had submitted that the present petitioners belong to Class-III and Class-IV (Group- 'C 'and 'D') employees, as they are teachers and therefore, they are even otherwise, squarely covered by the decision of the Hon'ble Apex Court in the case of 'State of Punjab & Others Vs. Rafiq Masih & Others' (Supra) in respect of Condition No.(1) that recovery from Class-III and Class-IV (Group- 'C 'and 'D') employees is impermissible. Therefore, such a recovery, as per the aforesaid decision, is impermissible.Page 20 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026
NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined 8.5 Now, if, I consider the submissions of learned AGP, Mr. Shah, who has relied on the decision of the Hon'ble Apex Court in the case of 'High Court of Punjab & Haryana Vs. Jagdev Singh',' (Supra), in that case, the recovery was imposed against a Judicial Officer and therefore, the Hon'ble Apex Court allowed the recovery on account of undertaking given by the petitioner, therein. However, aforesaid ratio is about, in case, if, an undertaking is given, whether, such a recovery is permissible on the basis of such undertaking was the subject-matter of consideration before this Court in the case of 'Jethalal Ambalal Patel' (Supra) in Special Civil Application No. 15865 of 2021, Dated:
19.12.2024, wherein, this Court considered the decision in the case of 'Pani Ram' (Supra) and observed as under in Paragraphs- 6.1.4 and 6.1.5 thus;
"6.1.4 At this stage, it would be also relevant to refer to the decision of the Hon'ble Apex Court in the case of 'Pani Ram' (Supra), more particularly, the observations made at Paragraphs-22 and 23 thereof, which reads as under;
"22. The respondents have heavily relied on the document dated 30th August 2007, titled "Certificate". No doubt that the said document is signed by the appellant, wherein he had agreed to the condition that he will not be getting any enhanced pension for having been enrolled in this force. Firstly, we find that the said document deals with enhanced Page 21 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined pension and not disability pension. As already discussed herein above, a conjoint reading of Section 9 of the Territorial Army Act, 1948 and Regulation Nos. 292 and 173 of the Pension Regulations for the Army, 1961, would show that a member of the Territorial Army would be entitled to disability pension. In any case, in this respect, even accepting that the appellant has signed such a document, it will be relevant to refer to the following observations of this Court in the case of Central Inland Water Transport Corporation Limited and Another v. Brojo Nath Ganguly and Another:
"89. ......We have a Constitution for our country. Our judges are bound by their oath to "uphold the Constitution and the laws". The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. he principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is Page 22 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infrastructural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and Page 23 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances."
23. As held by this Court, a Right to Equality guaranteed under Article 14 of the Constitution of India would also apply to a man who has no choice or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. We find that the said observations rightly apply to the facts of the present case. Can it be said that the mighty Union of India and an ordinary soldier, who having fought for the country and retired from Regular Army, seeking re- employment in the Territorial Army, have an equal bargaining power. We are therefore of the considered view that the reliance placed on the said document would also be of no assistance to the case of the respondents."
6.1.5 Considering the observations made by the Apex Court and as reproduced herein above, it becomes clear that the provisions of Article 14 of the Constitution of India shall also apply to a man, who is working in an establishment, wherein, an employee does not have either any choice or say against the Page 24 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined order or instructions issued by an establishment and an employee is made to sign or give an undertaking in a routine manner, as a part of contract of employment. As noted herein above, in the affidavit filed on behalf of Respondent No.1- University dated 13.12.2024, it has clearly admitted that the concerned officer did not commit any mistake, while fixing the pay of the present petitioner and therefore, no action was initiated against him. Thus, on the one hand, Respondent No.1- University is stating that there was no mistake in fixation of pay of the petitioner and on the other hand, it issued orders for recovery and ultimately recovered Rs.4,12,782/- from the petitioner on the ground that there was mistake in the pay- fixation of the present petitioner. Thus, since, the stand taken by Respondent No.2, as noted above, is contrary to its own admission made in the affidavit dated 13.12.2024, the same cannot be accepted."
8.6 In that petition, this Court also considered the submission made by learned Advocate for the Respondent in that petition at Paragraphs- 6.1 and 6.1.1., which reads as under;
"6.1 In view of the above submission made by learned Advocate, Mr. Chauhan, appearing for Respondent No.1-University this Court has to consider the circumstances, under which the petitioner was compelled to refund Rs.4,12,782/-. The petitioner has challenged both the orders of recovery on the ground that the Page 25 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined same is in contravention of the provisions of Rule 28(2) of the Rules of 2002, which reads thus;
28. Pay when promotion or appointment is found to be erroneous:
(1) Notwithstanding the provisions contained in these rules, the pay of a Government employee whose promotion or appointment to a post is found to be or to have been erroneous on the basis of facts, e.g. incorrect seniority, failure to apply any relevant rules or orders correctly, shall be regulated in accordance with the general or special orders issued by the Government in this behalf.
(2) When any rule or order regulating pay is made with retrospective effect, the pay of a Government employee affected by such order or rule, shall be fixed notionally as if the rule or order were applicable in his case but the Government employee concerned shall not be called upon to refund the resultant amount of overpayment on account of pay and allowances; Provided that in the case where the erroneous promotion or appointment was given on the basis of false information furnished by the concerned Government employee; departmental action shall be taken against him and the resultant amount of overpayment on account of pay and allowances shall also be recovered from him.(emphasis supplied)."Page 26 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026
NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined 6.1.1 On perusal of Rule 28 (2) of the Rules of 2002, it becomes clear that the same provides that as and when any rule is made or an order is passed, regulating the pay of an employee and the same is given effect retrospectively, the pay of the government employee affected by such rule or order shall be fixed notionally, as if, such rule / order was applicable in case of the concerned employee, but, such an employee shall not be asked to refund / deposit the amount received by him due to over or excess payment."
8.6.1. The same was dealt with by this Court in Paragraphs- 6.2 and 6.2.1, which reads as under;
"6.2 Insofar as the submission made by learned Advocate, Mr. Chauhan, by relying on the decision of the Apex Court in the case of 'High Court of Punjab and Haryana and Others Vs. Jagdev Singh' (Supra), that as the petitioner had already given an undertaking to refund the excess amount, if any, paid to him, Respondent No.1-University is justified in effective recovery is concerned, in the said decision, the Hon'ble Apex Court took the said view in view of the fact that the Haryana Civil Services (Judicial Branch) and Haryana Superior Judicial Service Revised Pay Rules 2003, itself, required that at the time of claiming revised pay-scale, the concerned officer shall have to file an undertaking that any excess amount paid to him shall be refunded by him and therefore, the Apex Court allowed the appeal filed by the petitioner- Punjab and Haryana High Court.Page 27 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026
NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined 6.2.1 Insofar as the facts of the present case are concerned, Rule 28(2) of the Rules of 2002, though, permits re-fixation of pay- scale, it expressly prohibits any recovery from the concerned employee and therefore, the decision, in the case of 'High Court of Punjab and Haryana and Others Vs. Jagdev Singh' (Supra), relied on by the learned Advocate, Mr. Chauhan, shall not apply to the facts of the present case."
8.7 Therefore, in view of the above observations, in the instant case also, the decision in the case of 'High Court of Punjab & Haryana Vs. Jagdev Singh',' (Supra) relied on by the learned Advocate for the Respondent shall not apply.
8.8 As far as the decision in the case of 'Balbir Singh Bhandari' (Supra), relied on by learned AGP, Mr. Shah, is concerned, such a decision was rendered by taking into consideration the fact that a special class of 'Ayurvedic' and 'Unani' medical officers were created and they were given favourable treatment, without there being any valid reason to grant higher pay-scale.
8.8.1 In the instant case, there is nothing on record to show that the present petitioners were given any special treatment and even the impugned order also nowhere indicate that the petitioners are the beneficiaries of any special treatment and therefore, aforesaid decision also Page 28 of 29 Uploaded by UMESH H. CHAVDA(HC00203) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:03:49 IST 2026 NEUTRAL CITATION C/SCA/4740/2023 JUDGMENT DATED: 06/04/2026 undefined shall not apply to the case on hand.
8.9 I have also considered the fact that the petitioners have confined their challenge to the impugned order only to the extent, it imposes recovery of excess amount allegedly paid to the petitioners and they have already accepted their revised pay-scale, which is lower than the First and the Second Higher Pays Scales, which were granted to them. Therefore, now, when the petitioners are getting salary as per the revised pay-scale and when the issue before this Court is only about the validity of the recovery, in view of the above discussion, the impugned order dated 01.03.2023 is required to be quashed and set aside to the extent, it imposes recovery of excess amount paid to the petitioner by the Respondents.
9. In the result, all these petitions are partly allowed. The impugned order dated 01.03.2023 is quashed and set aside to the extent, it imposes recovery of excess amount paid to the petitioner, pursuant to the grant of the First and the Second Higher Pay Scale to the petitioners. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.
Sd./-
(NIRZAR S. DESAI,J) UMESH/-
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