SCA/17649/2003 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 17649 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================= === 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 ? ========================================= === STATE OF GUJARAT - Petitioner(s) Versus MOHANBHAI TAPUBHAI JAMBUCHA - Respondent(s) ========================================= === Appearance : MS ASMITA PATEL ASST. OVERNMENT PLEADER for Petitioner(s) : 1, MR BK OZA for Respondent(s) : 1, ========================================= === CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 12/05/2008 ORAL JUDGMENT SCA/17649/2003 2/6 JUDGMENT 1. Heard learned AGP Ms. Asmita Patel for petitioner. 2. When the matter is called out Mr. B.K.Oza, learned advocate for the respondent is not present. 3. This petition under Article 226 and 227 of the Constitution of India is preferred by the State against the judgment dated 6th September, 2002 passed in Appeal No.304/2000 by which the petitioner is directed to confer pensionary and other retiral dues on the basis of last pay drawn inspite of the fact that the learned Tribunal concluded that the respondent herein was not qualified to hold the promotional post and educational qualification cannot be waived. 4. Learned AGP relied on the operative portion of the judgment dated 6th September, 2002 which is reproduced herein below: “6. After hearing both the parties and after giving full consideration to the submissions made by both the parties, we feel that in educational qualifications for promotion the condition regarding educational qualification cannot be waived. However, in this case the Superintending Engineer i.e. Respondent No.2 has exceeded his jurisdiction and has waived the condition of the statutory rules and when the appellant was not entitled for promotion as Fitter Grade I, gave promotion and fixed his pay as notional from 1981 to 1995 and actual pay from 1995 till he retired. He acted in violation of rules. However, considering the facts that the appellant has since retired and he did work on the post of promotion, it would be in consanance with the justice as well as SCA/17649/2003 3/6 JUDGMENT B.C.S.R. 57-A that recovery should be waived and his pension and pensionery benefits be fixed according to last pay drawn. We have seen the judgments cited by the learned advocate for the appellant and relying upon those judgments of principles of promissory estoppel, it would not be proper and legal to recover the amount from the retired person, as he having worked on the post till he retired. The matter would have taken different course if he would have continued in service but as he has retired, we consider it proper not to recovery amount. His pension should be fixed on the basis of last pay drawn. We, therefore, pass the following order: ORDER The appeal is allowed and the respondents are directed to waive recovery and order to the concerned authority to pay pension and pensionary benefits to the appellant on the basis of last pay drawn.” 4.1. Learned AGP for the petitioner submits that once it was found that respondent herein did not possess the required requisite qualification under the statutory rules and found that Superintendent Engineer had exceeded his jusrisdiction and waived the condition of statutory rules and when the employee was not entitled for promotion as Fitter Grade I and granted promotion and fixed his pay scale notionally from 1981 to 1995 and actual pay from 1995 till he retired, no directions could have been issued to pay pensionary and retiral dues on the basis of last pay drawn which was fixed incorrectly by granting promotion to the petitioner contrary to the statutory rules. 5. The above proposition canvassed by learned AGP is not disputed and in the affidavit-in-reply only contention is taken that after number of years reduction in pay scale and initiation SCA/17649/2003 4/6 JUDGMENT of recovery is not permissible and two other persons who were also not qualified came to be promoted and no action was taken by the respondent authority. 6. Having heard learned AGP for the petitioner, this Court is inclined to accept the submission of learned AGP to the extent that the Tribunal had exceeded its jurisdiction by directing the petitioner herein to pay pensionary and other retiral dues on the basis of last pay drawn on promotional post, in spite of the fact that, in a conclusion reached by the Tribunal it was held that Superintendent Engineer had exceeded the jurisdiction and waived the condition of statutory rules while permitting the employee i.e. the present respondent herein on the post of Fitter Grade I and granted notional pay and fixed pay incorrectly and contrary to violation of Rules. 6.1. So far as, qualification of the respondent herein is concerned, admittedly, he was not possessing certificate of passing examination from I.T.I and, therefore, grant of some benefits to other employees similarly situated like the respondent cannot be pressed into service and Article 14 of the Constitution of India cannot be made applicable while in conferment of benefits contrary to the rules. Even reliance placed on Rule 57 (A) of B.C.S.R. Is also misconceived inasmuch as, the above rule do not empower the authority to grant benefits to an employee who is promoted on the basis of incorrect seniority or failure to apply any relevant rules unless there is specific or general order issued by the Government in this behalf. 6.2. Therefore, the Tribunal erred in issuing the direction to SCA/17649/2003 5/6 JUDGMENT the concerned authority to grant certain retiral benefits to the respondent which deserves interference in exercise of power under Article 226 and 227 of the Constitution of India. 7. In view of the above, there is no justification for the Tribunal to direct the respondents to grant pension and other retiral dues to the appellant on the basis of last pay drawn on promotional post. However, so far as recovery of the difference of the salary and other dues are concerned till the date of retirement of the appellant, it is not disputed that the promotion, as well as, fixation of pay scale was granted by the Superintendent Engineer by not applying rules correctly or by waiving the condition of the Rule for promotion for which the employee cannot be held responsible nor it is the case of the petitioner herein that employee in any way misrepresented the fact and pay was fixed accordingly. 8. In view of the above, reliance placed on the decision of P.H.Reddy vs. NTRD, 2002(2) SLR 694 of the Apex Court, initiation of recovery cannot be permitted and otherwise also by order dated 25.11.2004, considering the facts and circumstances of the case, petitioner was not permitted to initiate the recovery proceedings on the ground that the impugned order of the Tribunal is stayed. Therefore, considering the above aspects, the order of Tribunal impugned in this petition is quashed and set aside to the extent of directing the petitioner to grant the pension and other retiral dues to the respondent on the basis of last pay drawn on the promotional post. The petitioner shall not effect any recovery of arrears of salary or any other benefits already accrued to the respondent on the basis of promotion to the post of Fitter SCA/17649/2003 6/6 JUDGMENT Grade I. 9. It is made clear that the petitioner shall fix the last pay of the respondent as if no order of promotion is passed and accordingly pay the pension and other retiral dues. 10. This petition is allowed to the above extent. Rule is made absolute to the above extent with no order as to costs. [ANANT S. DAVE, J.] //smita//