SHANKAR GIMBA GAMIT vs STATE OF GUJARAT & ORS

Sr. No.,Particulars,Name of petitioner,Date of appointment as daily wager

1,SCA No. 6058/2011,Shankar Gimba Gamit,20.11.1974

2,SCA No. 6059/2011,Rayabhai Devliyabhai Gamit,01.10.1974

3,SCA No. 6060/2011,Ramubhai Koyabhai Naik,16.10.1973

4,SCA No. 6061/2011,Somlabhai Gajanandbhai Luhar,01.06.1972

5,SCA No. 6063/2011,Chiman Babli Gamit,10.10.1974

6,SCA No. 6064/2011,Kantilal Naranbhai Gamit,01.10.1974

7,SCA No. 6065/2011,Sara Raaniya Gamit,21.11.1974

8,SCA No. 6067/2011,Ratanjibhai Vechiyabhai Gamit,20.11.1974

from 7.4.1988 and therefore, with effect from 1.1.1996, they are automatically entitled to revised pay scale of Rs.3050-4590 and for the purpose,",,,

on 13.6.2002 vide Office Order No.33 of 2002 was passed confirming that the petitioners are entitled to salary in the scale of Rs.3050- 4590,,,

with effect from 1.1.1996. It is specifically contended that such order dated 13.06.2002 which is on the very next day of previous order dated,,,

12.06.2002 is neither renewed nor recalled till date and therefore, it is too late for the respondents to contend that the petitioners were wrongly",,,

given pay scale of Rs.3050-4590 in the year 2002 with effect from 01.01.1996.,,,

Though the basic details of the petitioners are summarized hereinabove, it would be appropriate to recollect few more dates and details to",,,

appreciate the dispute between the parties. On 10.11.2009, there was Government Resolution by the Roads and Buildings Department, by which",,,

the work-charge employees were granted revised pay scale as per the 6th Central Pay Commission. On 15.03.2010, respondent - Narmada",,,

Water Resources, Water Supply and Kalpsar Department of the State, issued resolution to give effect and benefit of 6th Central Pay Commission",,,

to the work-charge employees. There were several communications before and after such order to revise the pay scale in accordance with the 6th,,,

Pay Commission in parity with the different departments but the respondents have failed to do so.,,,

It is undisputed fact that pursuant to Order dated 12.09.2001 Government has granted salary in the pay scale of Rs.950-1500 to the work-,,,

charge employees who are having certificate of 2nd Class Wiremen by considering them as qualified Electric Helper/Electric Labourer. Such,,,

decision is extended to daily wager or work-charge helper who are working as operator, wiremen, fitter and driver. It is undisputed fact that the",,,

petitioners have been appointed as work-charge helper initially in Irrigation Department which is now known as Narmada Water Resources,",,,

Water Supply and Kalpsar Department and therefore, they are entitled to the benefit of decision dated 12.09.2001 which is by the same",,,

department. Copy of Order by which the petitioners were granted pay scale of Rs.950-1500 instead of scale of Rs.750-940 are also produced on,,,

record. So also the order by which pay scale of the petitioners were revised from Rs.950-1500 to Rs.3050-4590 is also produced on record.,,,

Therefore, all such salaries were revised by the respondents on their own and when there is no role of the petitioners in such revision of pay scale",,,

or getting any benefit, now it cannot be said that such revised pay scale was granted, due to some mistake on the part of the respondents.",,,

The petitioners have also produced certain copies of their representation and copies of Government Resolution dated 12.2.2009, so also",,,

representation made on 10.11.2009 and 15.03.2010 in support of their claim which confirms that they are entitled to the salary in the scale of,,,

Rs.5200-20200. It is also undisputed fact that the respondents are taking work of higher post from all the petitioners because of their experience,,,

and ability to do such work. Therefore, on 28.09.2010, even the Executive Engineer of the respondents have confirmed that since the petitioners",,,

are working on heavy duty crane and repairing the same; they must be given pay scale of Rs.3050-4590. However, unfortunately by impugned",,,

Order dated 03.03.2011, the respondents have relied upon one old Government Resolution dated 17.05.1989, though such Government",,,

Resolution is also confirming that the persons having the Certificate of 2nd Class Wiremen from licenses of board of Government or person having,,,

equivalent qualification shall be considered as qualified Electric Helpers/ Electric labour and pay shall be in the grade of Rs.950-1400, the",,,

Government has contended that the persons who are not holding such qualification should be considered as unqualified Electric Helper/ Electric,,,

Labour and shall be given pay scale of Rs.750-940. Therefore, it is further contended that since the petitioners are not holding such qualification,",,,

they are not entitled to pay scale of Rs.5200-20,200, since they are entitled to revised pay scale of Rs.2550-3200 and then pay scale of Rs.4440-",,,

7440.,,,

In their affidavit in reply, the respondent No.3 has also submitted that in the Government Resolution dated 17.05.1989, there is clarity as to who",,,

should be considered as a qualified Electric Helper and unqualified Electric Helper confirming that the persons who are holding Certificate of 2nd,,,

Class wiremen or equivalent qualification are to be considered as qualified helpers and those without such qualification are to be treated as,,,

unqualified helpers and since the petitioners are not qualified, they are not entitled to pay scale as claimed by them. Even letter dated 12.09.2001 is",,,

confirming the same position.,,,

Whereas, by filing all affidavit in rejoinder and also an additional affidavit, the petitioners have contended that fixation of pay as per 6th Pay",,,

Commission has nothing to do with the Government Resolution on 17.05.1989 and that fixation of pay scale in 6th Pay Commission based on,,,

principle of extending equal treatment against the particular pay scale granted under the 5th Pay Commission since corresponding revision is to be,,,

done. Thereby, when the petitioners were getting salary in the pay scale of Rs.3050-4590 as per the 5th Pay Commission, they are entitled to the",,,

corresponding salary in the pay scale of Rs.5200- 20200 as per the 6th Pay Commission since all these years (12 years), they are getting salaries",,,

in the scale of Rs.3050-4590. It is further contended that the petitioners were treated as qualified helper when their pay was fixed as per the 5th,,,

Pay Commission. It is further contended that the petitioners have been working for more than 25 years and have acquired enough experience and,,,

that too long experience is always substitute to educational qualification as held by the Hon''ble Supreme Court of India in case of Bhagwati Prasad,,,

and Ors. vs. Delhi State Mineral Development Corporation reported in 1990(1) SCC 361. It is further contended that the Government Resolution,,,

dated 17.05.1989 was issued by the Roads and Buildings Department and therefore, it cannot be applied to daily wagers of Irrigation Department",,,

and even it is assumed that it would apply to all departments, the same cannot be enforced after 21 years by treating the petitioners as unqualified",,,

helper who have been paid salary initially in the scale of Rs.950-1500 and then revised the pay scale of Rs.3050-4590. It is further submitted that,,,

the petitioners have not made any fake and forged document to get the particular increment and unless there is need to revise the pay scale as per,,,

6th Pay Commission. It was never conveyed to the petitioners that the pay scale of Rs.3050-4560 was wrongly given to them and it has never,,,

been rebut till date.,,,

The petitioners have also relied upon the Government Resolution dated 17.10.1988, copy of which is produced with an additional affidavit as",,,

Annexure- X, wherein as back as in the year 1988, the respondents have made it clear that the daily wagers who have completed the services of",,,

more than 10 years shall be considered as qualified employees and they should be given benefit accordingly. Another Government Resolution of,,,

the same date, on the contrary makes it very clear that the unqualified workers who have completed 10 years but not completed 15 years should",,,

be considered as qualified workers and shall be given benefit accordingly. Both Government Resolutions are at page Nos.104 and 108,,,

respectively at Annexure - X with an additional affidavit. By letter dated 17.11.1988, the Government has called upon information and directed the",,,

different departments to proceed further in accordance with the Government Resolution dated 17.10.1988 and extend the benefit accordingly.,,,

The petitioners have also relied upon few orders in favour of similarly situated workcharge helpers who are given pay scale of Rs.5200-20200,",,,

one such order in the name of Chhaganbhai Dhirubhai Gamit is at Annexure - Z at page No.111 which makes it clear that such semi skilled,,,

permanent daily wager (workcharge helper) who was initially getting salary in the pay scale of Rs.750-940 has been extended with the benefit of,,,

revision in pay scale when he has completed 10 years and he was extended the benefit of pay scale of Rs.950-1400 with effect from 01.10.1988,,,

and to the subsequent benefit thereafter till he retired.,,,

By filing reply to an additional affidavit, the respondents have reiterated their stand in all original affidavit. However, they could not deny the",,,

benefit extended to Chhaganbhai Dhirubhai Gamit and on the contrary, confirm the same on oath. Surprisingly, though the respondents are keen to",,,

apply for the benefit of the Government Resolution dated 17.05.1989 to the staff of Irrigation Department and though the Government Resolution,,,

is of PWD Departments, they came forward with a statement that Government Resolution dated 17.10.1988 is not applicable to the petitioners",,,

since it is not of Irrigation Department and is applicable to Rojamdar only and not to the workcharge employee.,,,

In response to such reply, the petitioners have filed rejoinder affidavit on 17.02.2017 contending that on 17.10.1988, Roads and Buildings",,,

Department has took a decision that there shall be parity between the pay scale of work charge employees and daily wager. Such decision is,,,

produced at page No.110 in Annexure - Y and therefore, after completion of 10 years, petitioners have been extended for the benefit by Office",,,

Order No.25/2002 dated 12.06.2002 and therefore, there is conflict between the Resolution dated 17.05.1989 and 17.10.1988. It is further",,,

contended that the discriminatory treatment is not permissible by the respondents.,,,

Before discussing the rival submissions and merits, certain factual development may need to be recollected here inasmuch as on 22.12.2016",,,

after hearing both the parties, this Court has observed and directed as under:",,,

Facts are now quite clear that Government Resolution dated 12.10.1988 so also Government Resolution dated 17.5.1989 can coexist. Such fact",,,

is confirmed by order dated 29.7.2015 by the Executive Engineer of Division I, Ukai in case of one Chhaganbhai Dhirubhai Gamit who was also",,,

work charge labourer and who was given benefit of his long services of more than ten years while granting benefit of Government Resolution dated,,,

17.1.1988 and thereby he was granted higher pay scale of Rs.950-1400/- w.e.f. 1.10.1998.,,,

Therefore, all petitions are required to be allowed, without discussing more facts and details which are otherwise well discussed in pleading",,,

supported by documentary evidence. For the purpose, the contention in affidavit in reply are on the contrary misguiding the Court and, therefore, it",,,

requires to be strictly dealt with. However, since learned AGP Ms. Shah is not having the copy of additional affidavit on behalf of the petitioner in",,,

her file, only for verifying such documents, additional set of which is provided to her today, let the matter be listed again for further dictation on the",,,

next date of hearing.""",,,

Similarly, on 29.12.2016, the Court has passed following order:",,,

Since, Learned Senior Counsel Mr. Shalin Mehta for the petitioners has already completed his arguments, today, the matter is kept only for",,,

certain clarification from the Government Pleader. The Learned Assistant Government Pleader is in receipt of communication dated 13.12.2016,,,

from the Deputy Secretary, Narmada, W.R.W.S. & Kalpasar Department, again confirming that the petitioner is not entitled to benefit as claimed",,,

by him. It is unfortunate that the Government is not taking care of interest of employees in the present case. Though the State of Gujarat is served,,,

through the Secretary of Narmada, W.R.W.S. & Kalpasar Department, it is now, necessary to direct the State of Gujarat for respondent no. 1",,,

appearing through its Secretary of P.W.D. Department, to disclose on record of this Court that whether such benefit is extended to similarly",,,

situated work charge employees in P.W.D. Department or not, because some other matters of the same nature are pending before this Court",,,

wherein though similar benefit has been extended to employees of different division, when same benefit was denied to similarly situated employees",,,

only of one division at Ahmedabad City, they have approached this High Court. Therefore, there should not be different consideration on the same",,,

issue in different matters. In view of the above facts and circumstances, the respondents are directed to disclose on oath about the pendency of any",,,

such matter having same issue. Registry is also directed to verify Special Civil Application No. 3320 of 2010. The respondent shall file an affidavit,,,

on or before 16.01.2017. Since the matter is heard at length shall be kept part-heard with this Court. List the matter on 16.01.2017.""",,,

Whereas on 24.01.2017, learned Advocate for the petitioner has made reference to the case of Jivanlal vs. Pravin Krishna reported in 2017(1)",,,

SCALE 426, and hence this Hon''ble Court has observed as under:",,,

Leave granted.",,,

The appellants have prayed for regularization of their services with effect from the date they completed 10 years of service. Main reliance is,,,

placed on the orders passed by the respondents in the case of similarly situated persons.,,,

The learned counsel for the respondents has vehemently contended that all the regularization orders passed in the case of those pointed out by,,,

the appellants are illegal since the State, in principle, had decided to discontinue the appointment to the post of Sweepers by order dated",,,

10.12.1997. However, the fact remains that after the said order also, many similarly situated persons have been granted regularization with effect",,,

from the date of completion of 10 years of service.,,,

In that view of the matter, we do not find any justification in discriminating the appellants herein. The policy had been violated in many cases.",,,

There cannot be any pick and choose policy; it would certainly lead to corruption. Hence, the appeals are allowed with a direction to the",,,

respondents to grant similar treatment to the appellants herein as well and grant regularization to them with effect from the date of completion of 10,,,

years of service.,,,

The needful shall be done within two months. Consequential benefits, if any, shall be disbursed within another one month.",,,

It is made clear that in case the disbursement is not done within the period mentioned above, the appellants shall be entitled to interest at the rate",,,

of 12% and the official(s) responsible for the delay will be personally liable for the same. No costs.""",,,

In addition to above facts and circumstances, the learned Advocate for the petitioners have relied upon following judgments.",,,

16.1 Gangji Dadubhai Chande vs. State of Gujarat in Special Civil pplication No.667 of 2003 dated 10.06.2013 wherein coordinate bench of this,,,

Hon''ble High Court has held that decision of reducing the pay-scale and cancellation of pay scale earlier revised is not permissible and directed,,,

that if any recovery is made from any of the petitioners on the basis of impugned decision than the respondent shall refund such amount to the,,,

petitioners with further direction that benefit of revised pay scale is to be given to the petitioners. It is undisputed fact that except figure of pay,,,

scale, the sum and substance of grievance by the petitioner in such reported cases as well as in the present case are almost similar except the fact",,,

that in decided case, the petitioner were work-charge Chokidar but herein they are electrical helper. Otherwise, factually both set of petitions have",,,

common details i.e. they have worked for more than 10 years and therefore, they are entitled to particular benefits.",,,

16.2 When such judgment has been challenged when such in Letter Patent Appeal No.1355 of 2013 and allied Letter Patent Appeals, Division",,,

Bench has however, while allowing the appeal partly confirmed revision of pay scale by the department but so far as the recovery of the excess",,,

payment paid to the original petitioners are concerned, that part of the decision by the learned Single Judge has been confirmed by partly allowing",,,

the appeal. Therefore, the respondents are placing reliance upon such judgments and press to dismiss the petitions. However, it cannot be ignored",,,

that while deciding such judgments, Division Bench has failed to consider the decision in the case of Bharat Sanchar Nigam Limited and Another",,,

vs. BPL Cellular Ltd. And Ors. reported in 2008(8) SCALE 106, wherein it has been specifically held that there cannot be an order of recovery",,,

after reasonable time which would be maximum three years and therefore in the given case when the order of recovery is made beyond three,,,

years, it is not permissible.",,,

On the count of the order being bad as recovery was ordered 16 years after the pay was fixed on account of a mistake made by the authorities",,,

was also, in our opinion, rightly considered by the learned single Judge. Relying on the judgments of the Apex Court in the case Bharat Sanchar",,,

Nigam Limited (supra), this made it clear that a mistake apparent on the fact of the record cannot be corrected if the same has continued to",,,

operate for a long period. Admittedly, fixation of pay was done on the original petitioner''s husband''s designation with effect from 01.03.1989. 16",,,

years thereafter, by an order dated 27.10.2005, the mistake is sought to be corrected. In accordance with the judgment in the case of Bharat",,,

Sanchar Nigam Limited (supra) it would be aptly clear that such a mistake would cease to be one and therefore, cannot be corrected.""",,,

It cannot be ignored that above observation is also by Division Bench in LPA No.1029 of 2017 i.e. in case of State of Gujarat of Gujarat & Ors.,,,

vs. Manglaben Yuvrajpatil wd/o Yuvraj Sukhdev Patl. It is also to be recollected here with reference to the precedent to be followed in such,,,

situation as directed by Hon''ble Supreme Court in case of Sundeep Kumar Bafna vs. State of Maharastra & Anr., reported in (2014) 16 SCC",,,

623, confirming that when previous decision of higher authority is not referred and considered in any judgment then that judgment is to be",,,

considered as per incuriam and may not be considered as binding precedent.,,,

16.3 In judgment dated 23.08.2016 in Special Civil Application No.2536 of 2008 between Mangalaben Yuvraj Patil wd/o. Yuvraj Sukhdev Patil,,,

vs. State of Gujarat & Ors., by coordinate bench is equally relevant, wherein the Court has relied upon previous decisions while confirming the",,,

benefit as claimed by present petitioner also. It is evident from such judgments that the employees concerned in such judgments, is since now no-",,,

more, was daily wager helper with the Damanganga Mechanical, Sub-Division, in the year 1979 and when representation to fixed his salary in the",,,

pay scale of Rs.950-1400 was rejected, the petitioner has preferred to get the salary fixed in the pay sale of Rs.4500-7000 with a prohibitory",,,

relief against recovery of amount. It is also evident from the judgment that barring few differences in factual details, the sum and substance and plea",,,

of the petitioner before the Hon''ble Court was similar to the petitioner and therefore, learned Single Judge has allowed the petition quashing the",,,

order of rejection of representation by the employee and directed the respondent not to effect any recovery and to consider the salary as per the,,,

revised scale which is confirmed by such judgment.,,,

16.4 When such judgment was challenged in Letter Patent Appeal No.1029 of 2017 which was decided with allied appeals, the Division Bench",,,

vide its judgment and order dated 13.11.2017 preferred by the State Government, while dismissing the appeal confirmed that revised pay scale as",,,

claimed by the employees are proper and there cannot be any recovery from salary once pay scale is revised. It is evident from such consolidated,,,

judgments of several Letter Patent Appeals that at least one Shri Vikram Sukhlal Dorik was serving with the Irrigation Department of the State,,,

Government. It is undisputed fact that the petitioners were also initially serving in the Irrigation Department and therefore, there is parity between",,,

the factual details. It is also evident from such judgment that employees before the Court in such litigation had received the revised salaries in the,,,

pay scale of Rs.4500- 7000. Therefore, though in Letter Patent Appeal No.1355 of 2013 and other allied matters some different view was taken",,,

by the Division Bench comprising atleast same Senior Judge of the High Court, in such latest judgment revised pay scale of Rs.4500-7000 has",,,

been confirmed and therefore, now there is no reason to deviate from such decision.",,,

16.5 In judgment dated 10.10.2016 & 13.10.2016 in Special Civil Application No.1313 of 2009 and allied matters between Kanubhai,,,

Maganbhai Tadvi C/o PWD Empoyees Union vs. State of Gujarat & Ors., again the learned Single Judge of coordinate bench of this Court that",,,

by detailed reasoned judgment concerning similar situation of litigant held that the fixation of pay scale by the department was proper at the relevant,,,

time, and therefore, now it cannot be revised at belated stage so as to recovery the certain amount which is already paid to the petitioners. When",,,

this judgment was challenged in Letters Patent Appeal No.196 of 2017 and allied Letters Patent Appeals, the Division Bench by its judgment",,,

dated 11.04.2017 while dismissing the Letters Patent Appeal confirmed the judgment of learned Single Judge, and thereby upheld the observation",,,

and determination by the learned Single Judge that the petitioners are entitled to pay scale as provided in Government Resolution dated,,,

17.10.1988, when they were appointed in the year 1979 and have completed 15 years as a daily wager and thereby, when they were placed in",,,

the pay scale of Rs.950-1500 and thereafter it was revised in the pay scale of Rs.3050-4590, when the authorities have cancelled such pre-",,,

revised pay drawn by the petitioner for back date. Therefore, such order was quashed and set aside by learned Single Judge and such decision",,,

was confirmed by the Division Bench. Facts in the present case are not only similar but in fact such petitioners are in the same cadre service are,,,

concerned but unfortunately, the State Government is extending the benefit of Judicial pronouncement and the same Government Resolution only to",,,

the some selected employees and trying to find fault with some of the employees while extending reasonable and equal benefit to them, for the",,,

reasons best known to the administrative authority of the Government. This should certainly be considered as a pick and choose policy which is,,,

repeatedly deprecated by Judicial pronouncement. In absence of prompt action against erring officer, such practice would continue which would",,,

ultimately result into multiplicity of proceedings.,,,

16.6 The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts, so",,,

as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the,,,

period 1983 and 1986 and ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to",,,

the posts held by them. Practical experience would always aid the person to effectively discharge the duties and will be sure guide to assess the,,,

suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at",,,

the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a,,,

considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the",,,

prescribed educational qualifications. In our view, three years'' experience, ignoring artificial break in service for short period/periods created by",,,

the respondents, in the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of",,,

termination and re-appointment that period may be excluded in the computation of the three years period. Since the petitioners before us satisfy the,,,

requirement of 10 and 15 years'' service. They are entitled to the benefit of Government Resolution which are referred hereinabove and which are,,,

in their favour confirming that when employees work more than 10 years and 15 years, is entitled to certain benefits including higher pay scale and",,,

therefore, such benefits cannot be withdrawn without giving an opportunity to them. Pursuant to the decision in the case of Bhagwan Shukla vs.",,,

Union of India & Ors., reported in (1994) 6 SCC 154, wherein it was held that prior opportunity ought to have been afforded before reduction of",,,

pay scale on the ground of having been wrongly fixed and thereby order of reduction passed without affording opportunity, was held, violative of",,,

principles of natural justice and quashed.,,,

16.7 Similarly reference to the case of State of Gujarat & Anr. vs. Mahendrakumar Bhagvandas & Anr., reported in 2011 (2) GLR 1290,",,,

wherein Division Bench has confirmed the above view that one''s daily rated employees are regularize in service and made permanent by,,,

Government Pleader dated 17.10.1988 and they cannot be denied any service benefit available to regular permanent employees and that such,,,

denied violative Articles 14 and 16 of the Constitution of India. It is also confirmed that State Government cannot be taken away benefit already,,,

granted earlier and that Government Resolution dated 18.07.1994 but does not supersede Government Resolution dated 17. 10.1988.,,,

16.8 The same view is of the larger bench of Hon''ble Supreme Court of India between S.L.Kapoor vs. Jagmohan and Ors. reported in (1980) 4,,,

SCC 379, that notice must be given in the context of proposed action and mere furnishing of information is not proper thereby. Non-compliance of",,,

natural justice is by itself sufficient proof of prejudice since if any act, involves civil consequences, it must comply with the rules of natural justice",,,

and therefore, when there is violative of civil rights of petitioner, the impugned order needs to be quashed.",,,

16.9 Reference to the judgment between the State of Gujarat & Ors. vs. PWD Employees Union & Ors. etc, reported in 2013(8) SCALE 579,",,,

more particularly observation in praragraph 21 of such judgment is relevant wherein Hon''ble Supreme Court has categorically held that Resolution,,,

of the State Government dated 17.10.1988 is not limited to any particular department but it applies to all departments of the State Government,,,

and it is also applicable to all daily wage workers including semi-skilled workers performing any nature of job, working in different departments of",,,

the State. Therefore, also the petitioners are entitled to all benefit.",,,

16.10 The petitioners have also relied upon such recent decision in the case of Jivanlal vs. Pravin Krishna reported in 2017(1) SCALE 426,",,,

wherein Hon''ble Supreme Court has recently held and confirmed that there is no justification in discriminating the similarly situated employees and,,,

that there cannot be any pick and choose policy; it would certainly lead to corruption and therefore, directed the State Authority to grant similar",,,

treatment to the appellants before it with direction to do the needful within two months and to disburse benefit within another one month with,,,

further directions that if disbursement is not done within such period, the State shall be entitled to interest at the rate of 12% and the official",,,

responsible for the delay will be personally liable for the same.,,,

16.11 The petitioners are also relying upon the decision in the case of Dharmendrasinh Govindji Makwana vs. State of Gujarat, dated 29.07.2010",,,

in Special Civil Application No.7388 of 2009 submitting that recovery cannot be made at this stage, however the same issue has been dealt with in",,,

above referred judgments of Division Bench and now it is well settled pursuant to the pronouncement of decision by Hon''ble Supreme Court in,,,

case of State of Punjab & Ors. Vs. Rafiq Masih reported in 2014 (14) SCALE 300, and several other decisions, that there cannot be recovery of",,,

salary already paid to Class-IV employees when they were not involved in getting such salary.,,,

16.12 As against that, the respondents are relying upon the decision by learned Single Judge in the case of Chandubhai Ishwarbhai Koli vs.",,,

Superintending Engineer reported in 2002(2)GLH 418 and decision in the case of Jiviben Bhatt vs. Union of India dated 20.09.2016 in Special,,,

Civil Application No.5500 of 2004. However, when other judgments are in favour of the petitioners which are never overruled, I do not see any",,,

reason to rely upon such trace decision.,,,

In view of above facts and circumstances that the petition is allowed as prayed for, whereby now it is made clear that the petitioners are",,,

entitled to salary in the pay scale of Rs.5200- 20200 with effect from 01.01.2006 and thereby, the respondents are hereby directed to fix pay of",,,

petitioners in such scale within six weeks from the date receipt of Writ of this Order and shall calculate the arrears and shall pay same within eight,,,

(8) weeks and thereafter without fail, if the respondents failed to pay arrears in 14 weeks from the date of receipt in Writ of this Order. The",,,

petitioners shall be entitled to interest at the rate of 6% per annum from due date till its actual realization. Thereby, order dated 03.03.2011 by the",,,

respondent is hereby quashed and set aside and confirming the revision of pay scale of the petitioners in Office Order No.25 of 2002 dated,,,

12.06.2002 and Office Order No.33 of 2002 dated 13.06.2002.,,,