LPA/326/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 326 of 2008 In SPECIAL CIVIL APPLICATION No. 3413 of 2008 With CIVIL APPLICATION No. 4273 of 2008 In LETTERS PATENT APPEAL No. 326 of 2008 In SPECIAL CIVIL APPLICATION No. 3413 of 2008 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 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 ? ========================================================= VINODRAY GOVINDJI TRIVADI - Appellant(s) Versus THE STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance : MR HASIT H JOSHI for Appellant(s) : 1, None for Respondent(s) : 1 - 5. ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 08/04/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) LPA/326/2008 2/5 JUDGMENT Heard the learned advocate. This Appeal, preferred under Clause 15 of the Letters Patent, arises from the order dated 22nd February, 2008 made by the learned Single Judge in above Special Civil Application No.3413 of 2008 in so far as the appellant has been denied interim stay against the recovery pending the writ petition. It appears that the appellant was employed under the respondent – Municipal School Board, Jamnagar as Junior Clerk. In the month of March, 2006 he was promoted as Head Clerk cum Accountant. On reaching the age of superannuation, he has retired from service on 31st May, 2006 as Head Clerk cum Accountant. While serving as Junior Clerk, by order dated 6th July, 2000 made by the Administrative Officer, Municipal School Board, Jamnagar, the appellant had been given the benefit of higher pay scale admissible under the Government Resolution dated 16th August, 1994. By the said order, with effect from 1st July, 1996, the appellant had been placed in the pay scale of Rs.5000 – 8000 sanctioned for the next promotional post of Head Clerk cum Accountant. Accordingly, the appellant's pay was LPA/326/2008 3/5 JUDGMENT revised and was paid salary in the higher scale of Head Clerk cum Accountant. The said order was audited by the Local Fund Examiner and objected to as contrary to the Government Resolution dated 16th August, 1994. Pursuant to the said objection, his pension case has been delayed. The question of grant of higher pay scale was reconsidered by order dated 10th August, 2007 made by the Municipal School Board, Jamnagar. The appellant has been informed that he had wrongly been paid salary in the pay scale of Rs.5000 – 8000 of Head Clerk cum Accountant with effect from 1st July, 1996 and that in view of the Government Resolution dated 16th August, 1994, he was entitled to the next higher pay scale of Rs.4000 – 6000 (admissible for the post of Senior Clerk). The question of recovery of salary was referred to the Director of Primary Education. The Director of Primary Education has by his order dated 20th December, 2007 upheld that the appellant was not entitled to the higher pay scale of Rs.5000 – 8000. His request not to recover the excess salary paid to him has also been rejected. Feeling aggrieved, the appellant has preferred LPA/326/2008 4/5 JUDGMENT the above Special Civil Application No.3413 of 2008 pending admission hearing before the learned Single Judge. So far as the correctness of the orders dated 23rd August, 2007 and 20th December, 2007 is concerned, we are prima facie of the view that the said orders are correct in so far as the entitlement of the appellant for higher pay scale is concerned i.e. whether or not there is a sanctioned post of Senior Clerk, the appellant was entitled to the next higher pay scale and not the pay scale of the next promotional post. As to the recovery of the excess salary paid to the appellant, it should be noted that the amount of excess salary paid to the appellant has not yet been ascertained. The writ petition is pending admission hearing before the learned Single Judge. No case for interference is made out. The Appeal is dismissed in limine. Civil Application stands disposed of. (Ms. R.M.Doshit, J.) LPA/326/2008 5/5 JUDGMENT kdc (K.M.Thaker, J.)