State Of Gujarat vs S K Fuletra

Anant S. Dave, J

Challenge in this appeal under clause-15 of the Letters Patent is to oral order dated 26.7.2018 passed in Special Civil Application No. 6820 of 2018

by learned Single Judge, in exercise of power under Article 226 of the Constitution of India. In the said writ-petition, the State of Gujarat, through

District Education Officer challenged the order dated 2nd May, 2016 passed by the Gujarat Civil Services Tribunal, Gandhinagar in Appeal No. 75 of

2010 preferred by the respondent-employee, by which order, the appeal preferred by the respondent came to be allowed by quashing and setting aside

the order of the District Education Officer, Junagadh, dated 10th March, 2010 and also consequential order dated 6th April, 2010 passed by Principal

of the school ordering recovery of Rs. 85,927/-.

What is recorded by learned Single Judge in paragraphs-3 and 3.1 of the impugned order is reproduced hereunder for the sake of convenience.

“3. Noticing the facts in a nutshell, the respondent herein was serving under respondent No.3 High School as Librarian, Class III, from 05th

August, 1991. It was in pay-scale of Rs.1200-2040. The respondent â€" employee was extended to benefits of first higher pay-scale with effect from

05th August, 2000 under the policy Resolution dated 14th August, 1998 of the State Government which was revised as per the 4th Pay Commission to

Rs.4000-6000. Thereafter the pay-scale of Rs.5000-8000 was sanctioned for the respondent â€" employee and the auditors had cleared the said

conferment of the pay-scale.

3.1 Having granted the scale as above with effect from 01st January, 1986 and revised on 04th August, 2000 as above, all of a sudden, on 07th

September, 2009, the respondent No.1 â€" District Education Officer provided that petitioner could be granted pay-scale of Rs.4500-7000 instead of

Rs.5000-8000, therefore he directed recovery of differential amount of Rs.85,927/-. Thus the pay of the petitioner was reduced from retrospective

effect and recovery is ordered as above. This led the petitioner to prefer appeal before the Tribunal.â€​

Learned Single Judge accordingly noticed that when pay-scale was granted to the petitioner upon due consideration, viz. Rs. 5000-8000, it ought not

to have been reduced to Rs.4500-7000 and that too by initiating recovery of differential amount of Rs. 85,927/- with retrospective effect. The learned

Single Judge relied on the decision of the Apex Court in the case of State of Punjab vs. Rafiq Masih (White Washer) [(2015) 4 SCC 334], in support

of the findings in the order impugned.

Shri Chintan Dave, learned Assistant Government Pleader, appearing for the appellants would contend that the law laid down in the case of Rafiq

Masih (supra) shall have no application in the facts and circumstances of the present case, particularly when the employee had undertaken as

Librarian of the College to abide by all conditions enumerated in the Government Resolution dated 16th August, 1994 of Finance Department, State of

Gujarat, and therefore, when such undertaking was given, reduction in the pay-scale and consequential order of recovery ought not to have been

quashed and set aside by the learned Single Judge. Learned Assistant Government Pleader placed reliance upon a decision of the Apex Court in the

case of High Court of Punjab and Haryana and others vs. Jagdev Singh, [(2016) 14 Supreme Court Cases 267] in support of the argument that

recovery from an employee is permissible when such employee has furnished an undertaking while opting for revised pay-scale and therefore, such an

employee will refund the excess amount paid since the employee was bound by such undertaking. It is therefore submitted that in the facts of the case

on hand, this appeal deserves to be allowed by quashing and setting aside the order passed by the learned Single Judge.

Having regard to the facts and circumstances of the case and the submissions made by learned Assistant Government Pleader in the context of the

finding of the learned Single Judge about recovery ordered to be initiated from the respondent, a Class-III employee, principles laid down in the case

of Rafiq Masih (supra) were applied by learned Single Judge in the order impugned, which read as under:

“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 hereinabove, we may, as a ready

reference, summarise the following new situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service);

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery;

(iii) Recovery from the 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 case 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 arrives 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.â€​ (Para 18)â€​

What is important to be seen is that recovery that is ordered in the case of Class-III and Class-IV employees (or Group-C and Group services),

stands on different footing and about the recovery from the retired employees, or the employees who are due to retire within one year, as the case

may be. In the present case, admittedly, the respondent-employee is Class-III employee and he succeeded before the Gujarat Civil Services Tribunal,

which has assigned just reasons to quash and set aside the order of recovery of dues of Rs.85,927/- by considering the Government Resolution dated

16.8.1994 in the context of Rule 28(1) and (2) of the Gujarat Civil Service Rules, where provisions are made about the powers conferred upon the

authority under the circumstances in which pay and recovery of excess payment can be considered upon erroneous or incorrect seniority, failure to

apply any relevant rules or orders correctly. Even the Government Resolution dated 16th August, 1994 is about grant of revised higher pay scale to

employees in the absence of promotional avenues or limited scope of promotion, so that employees are not demoralized or stagnated in particular

cadre/post. When the respondent employee was considered for pay scale of Rs.5000-8000 instead of Rs.4500-7000, the fact remains that earlier he

was given promotion about which the authorities were aware of. Under the circumstances, it cannot be said that respondent, a Class-III employee,

misrepresented his case by giving such undertaking for which recovery could be ordered. It is stated by learned counsel for the respondent that

subsequently, the respondent-original petitioner became entitled to receive pay scale of Rs.5000-8000 and was given salary accordingly. We are

inclined to accept such submission and do not pass any order in that regard.

Thus, letters patent appeal is dismissed by confirming the order of the learned single Judge. Consequently, civil Application does not survive and the

same stands disposed of accordingly.