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Judgment
The present petition under Article 226 of the Constitution of India is filed for the purpose of seeking the following reliefs:
"6(A) This Honourable Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the form of mandamus or any other appropriate writ, order or direction to quash and set aside the impugned order/ decision dated 01.07.2015/ 10.08.2015 cancelling the decision of granting the pay scale of Professor GradeI to the petitioner and ordering recovery of the amounts paid to the petitioners in the interregnum and further directing the respondents to continue to pay the salary and allowances as are bring paid to the petitioners as if the impugned order are never served. (B) During the admission, pendency and final disposal of this petition be pleased to stay the operation, implementation and execution of the impugned order/ decision/ communication dated 01.07.2015/ 10.08.2015 and be pleased to restrain all the respondents, their officers, service agents and employee from discontinuing the payment of salary and allowances on the basis of the communication dated 01.07.2015/ 10.08.2015 and/or effecting any recovery on the basis of the said communication; (C ) Be pleased to award the cost of this petition; (D) Any other and/or further relief/s that may deem fit looking to the facts and circumstances of the case may be granted to the petitioner."
The short facts of the case are that the petitioners are the identically situated inasmuch as they were holding the qualification of B.R.S., and had joined the service with the respondent rural universities prior to 1988. The petitioners are appointed having B.R.S., qualification which is eligible qualification for being appointed upon completion of the post graduation. They have been put in the regular pay scale by issuing separate orders, the details of which are given in para 2.1 of the petition compilation in a tabular form which is reproduced hereinafter :
Sr. No
Name
Qualification
Date of Joining
Date of completing post graduation
Date of orders sanctioning pay scale
1.
Dinesh V. Vasiyani
B.R.S.
05.06.1981
11.04.1989
03.05.1990
2
Hemraj R. Patel
B.R.S., M.A.
01.07.ᦇ
10.03.1993
24.07.1993
3.
Madansinh S. Rathod
B.R.S, M.A
07.07.1987
07.04.1992
22.06.1992
4
Samantbhai G. Purohit
B.R.S. M.A.
06.12.1988
May 1989
01.03.1990
5.
Shankarbhai D. Birari
B.R.S., M.A
16.12.1987
09.10.1985
16.01.1991
2.1. It is further the case of the petitioners that despite the fact that the payscale have been granted prior to almost a period of 25 years and they have been continued to pay the same as well which is after an unreasonable period of time, without granting any opportunity to the petitioner, without assigning any reasons, straightway recovery is sought to be affected under the guise of the so called mistake in granting and extending the pay scale. The said order is passed for the first time on 10.08.2015 which is reflecting on page 13. This order of curtailment of the pay scale and the consequential recovery is made the subject matter of the present petition under Article 226 of the Constitution of India.
When the matter is taken up for final hearing, learned advocate Mr. Ishan Joshi for Mr. G.M. Joshi, learned advocate appearing for the petitioners has submitted that the order passed by the authority is not at all in consonance with the well recognized principles of natural justice as well as no opportunity of hearing is given nor any opportunity to explain is also given. It is well recognized principles of natural justice which is applicable to whole range of jurisdiction and must be backed by the cogent reasons. The reasons are now the part and parcel of the compliance of the principles of natural justice. The order in question is not reflecting any such compliance. Hence, on this count alone, the same be quashed and set aside. It has further been contended that any exercise of power must be within a reasonable period of time and certainly the length of 25 years of service cannot be said to be a reasonable period. As a result of this, on this count alone, the impugned order deserves to be quashed and set aside. It has further been contended that it is not the case of the authority that this pay scale was extended to the petitioner on account of any misrepresentation or false facts and it is just a mere wrong interpretation of the Resolution has led the authority to pass the impugned order that too after a period of 25 years and therefore, in absence of any misrepresentation on the part of the petitioners, no such recovery now be permissible in view of the settled principles of law. For strengthening his submission, learned advocate Mr. Joshi has relied upon the decision of the Apex Court in the case of State of Punjab & Ors., v. Rafiq Masih (White Washer) etc., reported in AIR 2015 SC 696 and has requested the Court to grant the relief as prayed for in the petition.
To meet with the stand taken by the learned advocate for the petitioners, learned AGP Ms. Ritu Guru has made an attempt to oppose the petition on the ground that it is a mere mistake, which has been committed, is tried to be rectified for which no prayer deserves to be granted. Apart from that undisputedly, the petitioners are not entitled to the pay scale which is available to them and as such by referring to the stand which has been taken in the affidavitinreply, precisely para nos. 9, 10, 11 and 12 an attempt is made to oppose the petition. No other submissions have been made.
Having heard the learned advocates for the respective parties and having gone through the material on record exfacie it is reflecting that this power which has been sought to be exercised is after almost a period of 25 years. Looking to the tabular chart which has been given, it has been undisputedly found that upon attaining the post graduation, appropriate pay scale have been extended and such orders have been given sanctioned. The details whereof can be seen from the chart and therefore, this action which is sought to be initiated is after a period of 25 years which under no circumstance is possible to be accepted.
5.1. Yet another circumstance which is reflecting clearly that the order in question dated 10.08.2015 is practically not reflecting any reasons nor it is passed after hearing and extending the opportunity to the petitioners. It is the settled position of law that every action if entailing other consequential and monetary loss, the affected person must be given opportunity of hearing. Having been not done so, undisputedly, the order in question is in flagrant violation of the principles of natural justice. In addition to it, it is also reflecting that there no valid reasons available in the order which is placed at page 30 of the petition compilation. By now right from the year 2010 onwards, the Apex Court has propounded that the reasons are nothing by heart beats of the decision making process and as such a laconic order may not be recognized in the eye of law. When that be so, the impugned order is not possible to be accepted as a valid order. Considering this situation, the Court is inclined to accept the contention raised by the learned advocate for the petitioners. Additionally, the Court has advantage of the observations made by the Apex Court in the case of Rafiq Masih (supra) in which the issue of recovery was dealt with by the Court and after formulating the contingencies, the Apex Court has suggested that in such kind of eventuality, no order of recovery be passed. Considering this proposition of law laid down by the Apex Court, the Court is not inclined to accept the stand of the respondent authority. The relevant observations contained in para 12 is reproduced hereinafter of which the Court has taken note of, in addition thereof.
"12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to ClassIII and ClassIV 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 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 arrived at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover. "
In view of the aforesaid set of circumstances, and in view of the situation which is prevailing on record, a case is made out by the petitioners. Resultantly, the impugned order dated 10.08.2015 is quashed and set aside. Rule is made absolute to the aforesaid extent with no order as to costs. Direct Service is permitted.