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1 - 10 of 11 (1.24 seconds)Bhanmati Tapubhai Muliya vs State Of Gujarat And Anr. on 28 July, 1995
The
respondent has heavily relied upon the Draft Recruitment Rules
published by the State Government and according to the respondent
board as per the Draft Recruitment Rules from the post of Tradesman
the promotion can be given on the post of Mistry and from the post
of Mistry promotion can be given on the post of Foreman. It is an
admitted position that the said draft rules were not approved and
were at the stage of draft rules. It is true that as per the
decision of this Court in the case of Bhanmait Tapubhai
Muliya (Supra) the
draft rules can be treated as administrative instructions, however
nothing is on record that the said draft rules were implemented by
the board at any point of time. It is also required to be noted at
this stage that the case on behalf respondent board with respect to
the draft rules and under the draft rules, there was a provision to
give promotion to the post of Tradesman from the post Mistry and
from the post of Mistry to the post of Foreman was never brought to
the notice of the respective petitioners and even there is no
reference to the same in the impugned orders and for the first time,
the same has been pleaded by the respondent board in the affidavit
in reply to the present Special Civil Applications. Therefore, the
reliance placed upon the draft rules to be treated as administrative
instructions is nothing but an afterthought and even for which no
opportunity has been given to the respective petitioners to meet
with the same. As stated above, as such nothing is on record that
the said draft rules even if to be treated as administrative
instructions were acted upon and / or implemented by the respondent
board earlier. If the attention of the respective petitioners would
have been drawn to the aforesaid at the time of show cause notice in
that case, respective petitioners could have pointed out that the
same were not acted upon at all and / or at least the petitioners
could have meet with same.
Union Of India vs S. R. Dhingra And Others on 14 December, 2007
It
is further submitted that when it has been found that respective
petitioners were granted the first higher grade scale of the post of
Tradesman by mistake though they were not entitled to and when such
mistake has been corrected though belatedly the impugned decision /
action is not required to be quashed and set aside. Therefore, it is
submitted that merely on the ground of delay the impugned action is
not required to be quashed and set aside. It is submitted that
correction of mistake is always permissible as mistake does not
confer any right. She has relied upon the decision of the Hon'ble
Supreme Court in the case of Union of India Vs. S.R.
Dhingra And Others reported
in (2008) 2 SCC 229
as well as the decision in the case of Union of India
and Others Vs. Sujatha Vedachalam (Smt) And Another
reported in (2000) 9 SCC 187.
Union Of India & Ors vs Smt. Sujatha Vedachalam & Anr on 7 April, 2000
It
is further submitted that when it has been found that respective
petitioners were granted the first higher grade scale of the post of
Tradesman by mistake though they were not entitled to and when such
mistake has been corrected though belatedly the impugned decision /
action is not required to be quashed and set aside. Therefore, it is
submitted that merely on the ground of delay the impugned action is
not required to be quashed and set aside. It is submitted that
correction of mistake is always permissible as mistake does not
confer any right. She has relied upon the decision of the Hon'ble
Supreme Court in the case of Union of India Vs. S.R.
Dhingra And Others reported
in (2008) 2 SCC 229
as well as the decision in the case of Union of India
and Others Vs. Sujatha Vedachalam (Smt) And Another
reported in (2000) 9 SCC 187.
Shyam Babu Verma And Ors. vs Union Of India (Uoi) And Ors. on 8 February, 1994
It
is submitted that the mistake which is alleged was on the part of
the department in wrong fixation and the petitioners were not at all
responsible for such a mistake and, therefore, as held by the
Hon'ble Supreme Court in the case reported in
SHYAM BABU VERMA AND OTHERS VS. UNION OF INDIA AND
OTHERS reported in (1994) 2 SCC 521; SAHIB RAM VS. STATE OF HARYANA
AND OTHERS reported in 1995
Supp (1) SCC 18; unreported
judgment of the Division Bench of this Court in the case of
I.C.PATEL VS. GUJARAT HOUSING BOARD
dated 04.04.2001 in LPA No.578 of 2002 in SCA No.2196 of 1999 and
the decision of the Hon'ble Supreme Court in the case of PURSHOTTAM
LAL DAS AND OTHERS VS. THE STATE OF BIHAR AND OTHERS
reported in 2006 AIR SCW 5325 and another
decision in the case of COL.B.J.AKKARA (RETD.)
VS.GOVERNMENT OF INDIA AND OTHERS
reported in (2007) 1 SCC (L&S) 529, the impugned orders passed
by the department to recover the amount of excess payment made due
to wrong fixation/grant of higher grade deserve to be quashed and
set aside.
Sahib Ram vs The State Of Haryana And Others on 19 September, 1994
It
is submitted that the mistake which is alleged was on the part of
the department in wrong fixation and the petitioners were not at all
responsible for such a mistake and, therefore, as held by the
Hon'ble Supreme Court in the case reported in
SHYAM BABU VERMA AND OTHERS VS. UNION OF INDIA AND
OTHERS reported in (1994) 2 SCC 521; SAHIB RAM VS. STATE OF HARYANA
AND OTHERS reported in 1995
Supp (1) SCC 18; unreported
judgment of the Division Bench of this Court in the case of
I.C.PATEL VS. GUJARAT HOUSING BOARD
dated 04.04.2001 in LPA No.578 of 2002 in SCA No.2196 of 1999 and
the decision of the Hon'ble Supreme Court in the case of PURSHOTTAM
LAL DAS AND OTHERS VS. THE STATE OF BIHAR AND OTHERS
reported in 2006 AIR SCW 5325 and another
decision in the case of COL.B.J.AKKARA (RETD.)
VS.GOVERNMENT OF INDIA AND OTHERS
reported in (2007) 1 SCC (L&S) 529, the impugned orders passed
by the department to recover the amount of excess payment made due
to wrong fixation/grant of higher grade deserve to be quashed and
set aside.
Purshottam Lal Das & Others vs The State Of Bihar & Others on 10 October, 2006
14.2
In the case of Purshottam Lal Das and others (supra), the Hon'ble
Supreme Court, while dealing with the case of recovery of excess
salary paid where the appellants were already promoted and had
worked in promotional posts but the promotions were subsequently
found to be improper and the appellants were found to be not at
fault, directed that there shall be no recovery to be made from the
amounts already paid in respect of the promotional posts.
Bharat Sanchar Nigam Ltd. & Anr vs Bpl Mobile Cellular Ltd. & Ors on 14 May, 2008
Heard
the learned advocates for the respective parties at length. In all
these petitions, respective petitioners have challenged the impugned
respective orders passed in the year 2008 withdrawing/canceling the
benefit of first higher grade scale granted to the respective
petitioners of the post of Tradesman which was granted to the
respective petitioners since between 1991 to 1994 respectively
w.e.f. the date on which the respective petitioners completed 9
years of service as Khalasi, on the ground that there was a mistake
in granting the first higher grade scale to the respective
petitioners of the post of Tradesman. Thus, the mistake, if any, is
sought to be corrected by the respondent after a period of
approximately 17 to 18 years and in the meantime the pay of the
respective petitioners were re-fixed under Gujarat Civil Services
(Revision of Pay) Rules, 1998 and the same came to be audited and no
objection was raised even by the audit department. Whether in fact,
there was a mistake on the part of the respondent in granting higher
grade scale of the post of Tradesman to the respective petitioners
on completion of 9 years of service as Khalasi shall be dealt with
hereinafter. At present this Court is considering whether assuming
that there was a such mistake in granting the benefit of first
higher grade scale to the respective petitioners of the post of
Tradesman, can the respondent be permitted to rectify / correct the
same after a period of approximately 17 to 18 years. As such for the
reasons stated hereinafter there was no mistake committed by the
officers of the respondent board at the relevant time granting the
benefit of higher grade scale of Tradesman to the respective
petitioners on completion of their 9 years of service on the post of
Khalasi. As observed by the Hon'ble Supreme Court in the case of
Bharat Sanchar Nigam Ltd and Another (supra)
when a mistake is not rectified for a long period, the same in law,
may not be treated to be one. It is true that even in the said
decision the Hon'ble Supreme Court has observed and held that
mistake can be rectified, however, considering the peculiar
facts and circumstances of this case when the respective petitioners
were granted the benefit of first higher grade scale of post of
Foreman between 1991 to 1994 respectively w.e.f. back date and /or
retrospectively i.e. from the date on which the respective
petitioners completed 9 years of service on the post of Khalasi and
even thereafter there pay was re-fixed accordingly as per the
Gujarat Civil Services (Revision of Pay) Rules, 1998 and even
thereafter the some of respective petitioners have retired and their
pension came to be fixed accordingly and they are getting the
pension accordingly, respondent cannot be permitted to rectify and/
or correct the so called mistake after a period of 17 to 18 years.
It is to be noted that even according to the respondent it was
brought to the notice of the Board the so called mistake in July
2000 and even the Inquiry Officer handed over the inquiry report in
the matter of sanctioning pay scale of various cadres and submitted
his preliminary inquiry report in the year 2001 still the show cause
notices came to be issued in the year 2008 only i.e. even after a
period of 7 years from the date of submission of the report of
preliminary inquiry. In the further affidavit in reply on behalf of
the respondent board, respondent board has tried to explain the
delay but considering the para 2, it cannot be said that the
respondent board has explained the delay of 17 to 18 years in
correcting so called mistake. Under the circumstances,in the
aforesaid facts and circumstances of the case and the change
circumstances from time to time, the respondent board cannot be
permitted to rectify / correct the so called mistake after a period
of 17 to 18 years upsetting the financial position of the respective
petitioners.
Article 227 in Constitution of India [Constitution]
Arvind C Patel vs Gujarat Housing Board on 28 March, 2012
Subsequently, the learned Single Judge of this Court in
the case of Secretary, Finance Department vs. M.M.Patel and others
(supra) relying upon the decision of the Division Bench in the case
of I.C.Patel (supra) and the decision of Hon'ble Supreme Court in
the case of P.H.Reddy (supra) set aside the order of recovery of
excess payment made to the employee which was paid because of
mistake committed by the department .