SCA/554219/1997 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5542 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ===================================================== 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 ? ===================================================== SARDAR PATEL VINAY MANDIR - Petitioner(s) Versus GOVT OF GUJARAT & 2 - Respondent(s) ===================================================== Appearance : MR BIPIN P JASANI for Petitioner(s) : 1, MR VINAY S PANDYA ASSISTANT GOVERNMENT PLEADER for Respondent: 1 - 3. ===================================================== CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 12/11/2008 ORAL JUDGMENT SCA/554219/1997 2/9 JUDGMENT 1. Short facts of the case appear to be that the petitioner is running Higher Secondary School and there was vacancy of one-half teachers as per the strength of the students with the availability of the teachers. Therefore, on 29.9.1976, the proposal was forwarded by the petitioner to the District Education Officer to allot one-half or one teachers. Since the requirement was thereof one teachers, the District Education Officer after examining the proposal, passed an order on 15.11.1976 for allotment of one teachers Mr. V.R. Joshi and thereafter Kumari I.C. Patel. It appears that those teachers actually worked on the post in the petitioner school and as the grant was admissible, they have been paid the salary for the period during which they have worked. After a period of about 10 years, on account of some audit objection, the matter came to be considered by the District Education Officer for effecting recovery of the half salary of the teachers, who were posted in the petitioner school, since as per the audit objection, admissible salary was for one-half of the teachers i.e. part-time teachers. The District Education Officer passed order for recovery of the SCA/554219/1997 3/9 JUDGMENT amount, against which the petitioner preferred appeal before the Commissioner of Higher Education. The Commissioner of Higher Education after hearing the petitioner vide order dated 17.4.1989, found that there is no procedure for giving opportunity of hearing by the District Education Officer to the petitioner and on merits, he found that the petitioner school was not entitled to the benefits of full time teachers and was only for part-time teachers to meet with the requirement and one-half teachers was to be posted and as the same was not properly undertaken by the District Education Officer, the posting of the one full time teachers and the salary of the said teachers was not permissible. Therefore, he maintained the decision of recovery of the difference of the salary namely one- half salary of the teachers concerned from the admissible grant of the petitioner. The petitioner carried the matter before the State Government by making representation/appeal dated 12.5.1989. The State Government vide decision dated 28.3.1994 intimated to the petitioner that the representation is not accepted and no reasons whatsoever are SCA/554219/1997 4/9 JUDGMENT mentioned in the order. It is under these circumstances, the petitioner has approached this Court by present petition. 2. Heard Mr. Jasani, learned counsel for the petitioner and Mr. Vinay S. Pandya, learned Assistant Government Pleader for the State Authority. 3. In the matter of recovery of the salary already paid on account of mistake or otherwise, the law is by now settled. If the employee concerned by suppressing any fact or by misguiding the authority, has taken any undue benefits of the higher pay-scale or otherwise and thereafter, it is dictated at later stage, the recovery may be effected. However, if the higher authority under the bonafide exercise of the power, sanctioned the higher pay-scale and thereafter, at the later stage, different view is taken, may be on account of audit objection or otherwise, the recovery cannot be effected for the salary already paid and it may have at the most prospective effect. The reference may be made to the decisions of this Court in the case of Khara Shamji SCA/554219/1997 5/9 JUDGMENT Hirabhai Vs. Gujarat State Handicrafts And Handloom Development Corporation Ltd. reported 2001(0) GLHEL 206381 and in the case of M.M. Patel Vs. State of Gujarat reported in 2003(1) G.L.H. 697. 4. Therefore, if the facts of the present case are considered in light of the aforesaid legal position, it is apparent that there is no attempt on the part of the petitioner to take any undue benefits in demanding teachers, for which there was vacancy. The petitioner in the proposal, expressly mentioned that there is vacancy of one-half teachers and therefore, the teachers may posted. However, the District Education Officer in exercise of his power, considered the proposal and has posted the full time teachers. Both the teachers have actually worked in the petitioner school and the salary is paid to the petitioner. No benefits whatsoever is retained by the petitioner in capacity as school management nor it is case of the respondents Authorities that there was any attempt to take undue benefits on account of posting one teachers in place of vacancy of one-half teachers. Under these circumstances, if there is no SCA/554219/1997 6/9 JUDGMENT fault attributable to the petitioner in getting posting of the teachers and posting is actually made by the officer of the State Government namely District Education Officer, it would not be open to exercise power for recovery of the amount from admissible grant of the petitioner school. Therefore, the order for effecting recovery can be said as illegal in the eye of law. 5. The aforesaid is coupled with the circumstances that the action is at belated stage by the Authority inasmuch as the teachers have worked from 1976 to 1986 onwards and only at the later stage i.e. after a period of about 10 years from the date of posting of the order passed by the District Education Officer, on account of the audit objection, the power is exercised for recovery of the half salary of the teachers concerned from the grant of the petitioner. Had the action taken well in time or in any case, within reasonable time, the teachers concerned could have been reposted in other school and the petitioner school could have availed the benefits of part-time teachers, if posted in its school, but no such action SCA/554219/1997 7/9 JUDGMENT whatsoever taken by the District Education Officer, who is competent authority to recall the teachers and to repost the part-time teachers or otherwise. Therefore, if such action is after a period of about 10 years, the action taken for recovery of the amount in the year 1987-88 can be said as hopelessly barred and at a belated stage. Under these circumstances, as the action is at a very belated stage as things have become irreversible, such action on the part of the Authority for recovery of half of the salary can be said as against equitable principle, in addition to the above referred observations, such cannot be maintained in the eye of law. 6. However, it does appears that the State Government passed an order in the year 1994 and the petitioner has approached to this Court by preferring the petition in the year 1997. This Court for the first time, when entertained the petition on 30.7.1997, passed ad interim order against the recovery. Therefore, the recovery, if any, already effected prior to ad interim relief granted by this Court on 30.7.1997, may not be required to be repaid SCA/554219/1997 8/9 JUDGMENT to the petitioner, but further recovery after ad interim order was passed by this Court on 30.7.1997, may not be made operative. Even otherwise also, interim relief has continued thereafter when the petition was admitted. Under these circumstances and considering the equitable principles and the delay caused in preferring the petition, the petitioner at the most would be entitled to the benefits of any recovery after 30.7.1997, if not made pursuant to the impugned order, but the recovery already made prior to 30.7.1997, may not be restored to the petitioner by repaying the amount from the grant. 7. In view of the aforesaid observations and discussion, the impugned decision of the Authority for recovery of the amount of half of the salary of the teachers from admissible grant of the petitioner is quashed and set aside, with the direction that the recovery if any already made prior to 30.7.1997, shall not be required to be refunded to the petitioner school and the recovery, if any, not made after 30.7.1997 shall not be required to be enforced in view of the quashing of the decision by this Court SCA/554219/1997 9/9 JUDGMENT as referred to hereinabove. If any recovery is effected after 30.7.1997, the same will be required to be given credit in the account of the petitioner on admissible grant of the school. The petition is partly allowed to the aforesaid extent. Rule is made absolute. No order as to costs. (JAYANT PATEL,J.) ynvyas