C/SCA/3692/2007 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 3692 of 2007 With R/SPECIAL CIVIL APPLICATION NO. 2042 of 2007 With R/SPECIAL CIVIL APPLICATION NO. 24880 of 2006 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE MOHINDER PAL ========================================================== 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 or any order made thereunder ? ========================================================== B.R.DHRUV, Versus STATE OF GUJARAT ========================================================== Appearance: MR AJ YAGNIK(1372) for the PETITIONER(s) No. 1 MR IS SUPEHIA(874) for the PETITIONER(s) No. 1 MS JYOTI BHATT AGP (1) for the RESPONDENT(s) No. 1 MR HS MUNSHAW(495) for the RESPONDENT(s) No. 2 RULE SERVED(64) for the RESPONDENT(s) No. 1,2,3 ========================================================== CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL Date : 27/03/2018 ORAL JUDGMENT Page 1 of 6 C/SCA/3692/2007 JUDGMENT 1. All these petitions are taken up together, having common point of law. 2. Petitioners, by way of these petitions, have challenged the order for recovery of the excess amount paid to the petitioners and to restore the order dated 1.1.1992 with all consequential benefits and to refund the amount already deducted from the pensionary benefits of the petitioners. 3. Initially, the petitioners joined duty as Junior Clerk in 1960s and 1970s. Thereafter, they were promoted as Senior Clerk, and from Senior Clerk to the post of Deputy Chitnis, by respondent No.2. All the petitioners have retired somewhere in the year 2005. 4. Government vide its Circular dated 28.3.2006 came out with a policy that the employees, who have completed 45 years of age before 1994, will not be required to pass the departmental examination and will be entitled to higher pay scale. 5. All these petitioners were granted higher pay scale. However, after retirement, the respondents have withheld the retirement dues on the ground that the petitioners have not cleared the departmental examination and as such, they were not entitled to higher pay scales and order of recovery has also been issued. Aggrieved from this decision, the petitioners have approached this Court by way of these petitions. Page 2 of 6 C/SCA/3692/2007 JUDGMENT 6. It will be necessary to point out that one of the petitioners have earlier approached the Service Tribunal which has decided in their favour. However, other petitioners have directly approached this Court by way of aforementioned petitions. 7. Respondents have contested this petition by filing reply wherein, it has been stated that as the petitioners have not cleared the departmental examination, they were not entitled to higher pay scale and accordingly, the impugned order asking for recovery of excess amount paid to the petitioners was legal and justifiable. 8. Learned counsel for the petitioners has referred to the Government Resolution dated 28.3.2006 and has argued that there was no reason for the respondents to withhold the amount of higher pay scale already given to the petitioners. Further, the pension of the petitioners was required to be calculated in view of higher pay scale and action of respondents in passing the impugned order was against the law. 9. On the other hand, learned AGP as well as counsel for respondent no.2, have once again reiterated the averments made in the written statement and has submitted that the petitioners have not cleared the departmental examinations and they were not entitled to the higher pay scale. 10. This Court has considered the submissions made by both the sides. Interpretation of Government Resolution Page 3 of 6 C/SCA/3692/2007 JUDGMENT dated 28.3.2006 is the main dispute between the parties. Admittedly, all the petitioners have completed the age of 45 years in the year 1992. Therefore, in view of the clarifications made in the Government Resolution dated 28.3.2006, the petitioners were entitled to get the benefits of waiver from appearing in the departmental examination. As they have got exemption from passing such examination on completion of 45 years in the year 1992, there was no reason for the respondents to have withheld such benefit to the petitioners and asking for recovery of the excess amount paid to them. 11. Hon'ble Apex Court in case of State of Punjab and others V/s. Rafiq Masih reported in AIR 2015 SC 696 has laid down following guidelines in this regard for which recovery cannot be effected from the employee. (i) Recovery from the 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 Page 4 of 6 C/SCA/3692/2007 JUDGMENT 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 the recovery if made from employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of employer's right to recover. 12. Careful perusal of the aforementioned guidelines leaves no doubt that all these petitioners are Class-III employees. Order of recovery has been passed somewhere in the year 2005-2006 i.e. after the date of retirement pertaining to the alleged excess amount paid between the year 1989-1992. All the aforementioned excess amounts have been paid prior to retirement of the petitioners. 13. Otherwise also, it is settled by now that once the excess amount has been paid to an employee and there is no fraud and/or misrepresentation then that amount cannot be recovered subsequently. This is particularly so, when the petitioners have even retired. Therefore, all these impugned orders are required to be quashed and set aside. 14. In view of the afore-going discussion, these petitions are allowed. Impugned order of recovery is quashed and set aside. Petitioners are held entitled to the higher pay scale which was earlier granted to the petitioners and has been stopped after the date of superannuation. Petitioners will also be paid arrears of Page 5 of 6 C/SCA/3692/2007 JUDGMENT unpaid higher grade pay scale within a period of 4 weeks from the date of receipt of copy of this order. Petitioners will be further entitled to interest at the rate of 9% per annum from the date such amount has been withheld and is actually paid. Rule is made absolute. (MOHINDER PAL, J) (ashish) Page 6 of 6