SCA/9616/2002 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9616 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ? ========================================================= HARSADRAI H MEHTA - Petitioner Versus GUJARAT AGRICULTURE UNIVERSITY & 2 - Respondents ========================================================= Appearance : MS SEJAL K MANDAVIA for Petitioner: MR DG CHAUHAN for Respondents : 1, 3, RULE SERVED BY DS for Respondents : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 06/02/2008 ORAL JUDGMENT 1. Shri. J.R. Nanavati with Ms. Mandavia submits that this petition is now confined only to the order of recovery as a result of the order dated SCA/9616/2002 2/6 JUDGMENT 2/6/2002 which has in fact been stayed by this Court vide order dated 27/9/2002 [Coram: M.S. Shah, J]. Therefore, now this petition is confined only to the challenge to the recovery ordered in the order dated 2/6/2002. 2. The petitioner under Article 226 of the Constitution of India has challenged the order dated 2/6/2002 passed by the Director of Campus, Agricultural University – Respondent no.2, and also the order dated 28/9/1995 passed by Respondent no.2 as violative of Article 14 & 16 of the Constitution of India. 3. Facts in brief deserve to be set out as under: The petitioner was appointed as Junior Clerk on 3/8/1972 in the office of Director of Campus, Junagadh. At the relevant time Sarela Pay Commission was in existence. Agricultural University had decided to give selection grade to all the Junior Clerks and number of employees came to be granted benefit of selection grade in Junagadh campus, Dantiwada campus, Anand campus and Navsari campus. All the Junior Clerks of these four campuses were given selection grade as per the say of the petitioner in the memo of the petition. The order granting selection grade was passed on 10/7/1981 and selection grade was given w.e.f. 21/5/1976. On coming in force of Desai Pay Commission Recommendation the Gujarat SCA/9616/2002 3/6 JUDGMENT Agricultural University also implemented Desai Pay Commission to its employees. At the relevant time, i.e. May 19, 1976 Desai Pay Commission had not been implemented and made applicable to the employees of the University and though the order dated 28/9/1995 was passed withdrawing order dated 17/8/1981 granting benefit of selection grade. Selection grade given to the petitioner was ultimately came to be withdrawn under the impugned order dated 2/6/2002. Petitioner being aggrieved by the said order approached this Court under Article 226 of the Constitution of India. 4. It deserves to be noted that the counsel for the petitioner has given up challenge with regard to withdrawal of the pay scale as recorded herein above, and requested to confine this matter only to the order of recovery which is sought to be effected under the impugned order dated 2/6/2002 and which has been stayed by this Court vide order dated 27/9/2002. 5. Shri. Nanavati for the petitioner in support of his submission against the recovery relied upon the decision of this Court in LPA No. 578 of 2000 in Special Civil Application No. 2196 of 1998 decided on 4/4/2001 and Supreme Court decision in case of PURSHOTTAM LAL DAS & OTHERS Vs. THE STATE OF BIHAR & OTHERS, reported in 2006(10) SCALE, pg. 89. In view of this clear SCA/9616/2002 4/6 JUDGMENT ratio of the Apex Court as well as this Court the recovery deserves to be quashed. It is also submitted that granting of selection grade was not on account of any fraud or misrepresentation on the part of the petitioner nor was it a result of misdirected approach on the part of the University also. It was a conscious decision of the University to accord the benefit and even in reply also the University has not taken the stand of fraud and / or misrepresentation. The stand of the University is only that of a mistake. Therefore, the recovery deserves to be quashed and set aside. 6. Shri. Chauhan for the University vehemently opposed the prayer for quashing recovery and submitted that if pay fixation was result of any inadvertent mistake then the employee concerned can not be given advantage thereof in form of quashing of the recovery. The mistaken ground of pay fixation and salary could be recovered by the employer. All employer's mistake can not be worked as an advantage to the employee for withholding the unlawful wrong gain accrued to him on the part of the employee. However Shri. Chauhan could not point out any authority contrary to the ratio laid down by the Apex Court as well as this Court. 7. This Court has heard learned counsels for the parties and perused the record. This Court is SCA/9616/2002 5/6 JUDGMENT unable to accept the submission of Shri. Chauhan that the inadvertent mistake which has resulted into financial benefit to the petitioner can not be held against the employee for ordering recovery. The decision of the Apex Court as well as this Court go to show that once pay fixation is said to be not result of any fraud or misrepresentation on the part of the beneficiary, then, the order of recovery would not be justified as it will work untold hardship upon the concerned employee. The concept of hardship militate against submission of unlawful gain. In a strict meaning of unlawful gain such payment would not fall in as much as in absence of any fraud or misrepresentation on the part of the employee, any action even if it is advertant on the part of employer where under the employee has received the amount, can not be termed to be an unlawful gain justifying recovery of the same. 8. In the result the petition deserves to be allowed and accordingly it is allowed. The order dated 2/6/2002 so far as it orders recovery is hereby quashed and set aside. It is clarified that, as the challenge of withdrawal of the pay scale is given up, this Court is not opining anything on merits of the scheme and only the recovery is quashed. Accordingly this petition is partly allowed. Rule made absolute to the aforesaid extent only. No order as to cost. SCA/9616/2002 6/6 JUDGMENT [S.R. BRAHMBHATT, J] /vgn