The Gujarat Water Supply and Sewarage Board vs Shamji Devji Ayar

Mukesh R. Shah, J.—As common question of law and facts arise in these group of appeals and as such they arise out of the impugned common judgment and order passed by the learned Single Judge all these appeals are heard together and are decided and disposed of by this common judgment and order.

Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Single Judge dated 21/06/2013 in Special Civil Application No. 667/2013 and other allied Special Civil Applications by which the learned Single Judge allowed the aforesaid Special Civil Applications restraining the appellant herein--Gujarat Water Supply and Sewerage Board from reducing the pay-scale of the original respective petitioners from Rs. 4000-6000 to Rs. 3050-4590, the common appellant - Gujarat Water Supply and Sewerage Board has preferred the present Letters Patent Appeal.

The facts leading to the present Letters Patent Appeals in a nutshell are as under;

3.1 It was the case on behalf of the petitioner of Special Civil Application No. 23739/2005 that he is working as Engine Driver in Public Health Works Division of Gujarat Water Supply and Sewerage Board (hereinafter referred to as the ''Board'') and initially he was appointed in the pay scale of Rs. 160-265, which was thereafter revised to Rs. 350-560 and then revised to Rs. 1200-2040 and which was further revised to Rs. 4000-6000/- with effect from 01/01/1996 as per the Gujarat Civil Services (Revision of Pay) Rules, 1998. The pay scale of Rs. 350-560 was revised as per the Revision of Pay Rules, 1987 and further revised under the Revision of Pay Rules, 1998 to Rs. 4000-6000. As the pay scale of Rs. 4000-6000 was said to be reduced to Rs. 3050-4590 on the ground that initially there was a mistake committed and he was wrongly put in the pay scale of Rs. 350-560 instead of Rs. 160-265, the petitioner preferred the aforesaid Special Civil Application challenging the action of the Board in reducing the pay scale and ordering recovery of excess amount paid to him.

3.2 It was the case on behalf of the petitioner of Special Civil Application No. 667/2003 that he was originally appointed as Work Charge Chowkidar vide order dated 05/11/1977 in the pay scale of Rs. 196-232 and then appointed as Work Charge Helper on 20/08/1979 in the pay scale of Rs. 210-270 and later on he was promoted on 26/08/1988 as Engine Driver in the pay scale of Rs. 350-560. It was his further case that though he was entitled to revised pay scale of Rs. 1200-2040 and further revised pay scale of Rs. 4000-6000 his pay was fixed in the pay scale of Rs. 950-1500 and then fixed in the pay scale of Rs. 3050-4590 and, therefore, the petitioner prayed to direct the Board to fix his pay in the pay scale of Rs. 1200-2040 and further in the revised pay scale of Rs. 4000-6000 with effect from 01/01/1996.

3.3 It was the case on behalf of the petitioner of Special Civil Application No. 7153/1998 that his pay was revised to Rs. 1200-2040 under Revision of Pay Rules, 1987 and the same was sought to be reduced by placing the petitioner in pay scale of Rs. 950-1500 and, therefore, he preferred Special Civil Application No. 1802/1994 wherein interim relief protecting the pay of the said petitioner was granted on the petitioner''s filing an undertaking that he shall refund the difference of pay on his failing in the petition. Thereafter, as per the Revision of Pay Rules, 1998 the pay scale of Rs. 1200-2040 was revised to Rs. 4000-6000 with effect from 01/01/1986 and he was paid part amount of the difference of pay scale. However, subsequently, the order dated 24/08/1998 came to be passed cancelling the revised pay scale of Rs. 1200-2040 with effect from 01/01/1996 on the ground that till the verification of the revision of pay was carried the revised pay would remain cancelled and it was ordered to refund the excess amount paid to the petitioner by ten instalments. The said order dated 24/08/1998 was the subject matter of the aforesaid Special Civil Application No. 7153/1998.

3.4 It was the case on behalf of the petitioner of Special Civil Application No. 434/2001 that initially he joined the service as Helper in the pay scale of Rs. 110-140 and then the pay was revised to Rs. 210-270. Thereafter, he was promoted as Work Charge Wireman in the pay scale of Rs. 260-400 and thereafter by order dated 07/01/1985 he was promoted as Work Charge Engine Driver and was placed in the pay scale of Rs. 300-560 which later on came to be revised to Rs. 1200-2040 under Revision of Pay Rules 1987, which came to be further revised to Rs. 4000-6000 from 01/01/1986. The petitioner was also paid the arrears of revision of pay in the pay scale of Rs. 4000-6000, which was reduced to Rs. 3050-4590 by order dated 02/01/2001 with recovery of the difference of the amount paid to the petitioner. The aforesaid order dated 02/01/2001 was the subject matter of Special Civil Application No. 434/2001 by which the pay scale of the petitioner was reduced from Rs. 4000-6000 to Rs. 3050-4590 and the recovery of the difference of the amount paid to the petitioner was ordered.

3.5 It was the case on behalf of the petitioners of Special Civil Application Nos. 1287/2005 and 1290/2005 that they were appointed in the pay scale of Rs. 350-560, which was revised to Rs. 1200-2040. However, the said pay scale was sought to be reduced to the pay scale of Rs. 950-1500 and, therefore, they preferred Special Civil Application Nos. 1658/1994 and 1659/1994 wherein the said petitioners were protected on their filing an undertaking before the Court that on their failing in the petition they shall refund the difference of the amount paid to them. Thereafter their pay scale was further reduced to Rs. 4000-6000 with effect from 01/01/2006 under the Revision of Pay Rules, 1998 but they have not been paid any amount under the said revised pay scale and, therefore, the aforesaid petitioners prayed for an appropriate writ, order or direction directing the Board to pay the entire amount of difference of pay scale of Rs. 4000-6000 with effect from 01/01/1996 and to give the benefit of higher pay scale on the basis of 9-18-27 years of service. Thus, the sum and substance on behalf of the petitioners was that they were entitled to the pay scale of Rs. 4000-6000 with effect from 01/01/1996, according to the petitioners, as Work Charge Engine Driver and they were rightly placed in the pay scale of Rs. 350-560/- which later on came to be revised to Rs. 1200-2040 under the Revision of Pay Rules, 1998, which further came to be revised to Rs. 4000-6000 with effect from 01/01/1996 a s per the Revision of Pay Rules, 1998.

3.6 It was the case on behalf of the original respective petitioners that their pay scale were sought to be reduced after a period of more than thirty years on the ground that the original pay scale was wrongly given. It is submitted that therefore the Board ought not to have reduced the pay scale after a period of more than thirty years of service on the ground that the same was granted to them wrongly. It was also the case on behalf of the respective original petitioners that except three all other Engine Drivers retired and therefore there was no question of even refund of the amount alleged to have been paid in excess. It was submitted that even if there was a mistake the original respective petitioners were not responsible for the same and therefore neither there was justification in reducing the pay scale from Rs. 4000-6000 to Rs. 3050-4500 nor any recovery could have been made.

3.7 All the aforesaid petitions were opposed by the appellant-original respondent Board. It was the case on behalf of the Board that as such the opponents herein-respective original petitioners who were Work Charge Engine Driver were not entitled to the pay scale of Rs. 350-560 and by mistake they were put in the pay scale of Rs. 350-560 and thereafter in the pay scale of Rs. 1200-2040 and at Rs. 4000-6000. It was the case on behalf of the Board that as the respective original petitioners who were appointed and working as Work Charge Engine Driver were not entitled to the pay scale of Rs. 350-560 and they were not entitled to the corresponding revised pay scale of Rs. 1200-2040 as per the Revision of Pay Rules, 1987 and thereafter in the pay scale of Rs. 4000-6000 as per the Revision of Pay Rules, 1988 with effect from 01/01/1986 as claimed by the original respective petitioners as such the Work Charge Engine Drivers were entitled to the pay scale of Rs. 125-200 with effect from 01/07/1973 and by mistake they were put in the pay scale of Rs. 160-265 and thereafter correspondingly in the pay scale of Rs. 350-560 and Rs. 1200-2040 and in the pay scale of Rs. 4000-6000 respectively.

3.8 It was also the case on behalf of the Board that in fact some other similarly situated Work Charge Engine Driver approached the Industrial Tribunal by raising the industrial dispute and on appreciation of evidence the Industrial Tribunal held that the correct pay scale applicable to the Engine Driver was Rs. 125-200. It was also the case on behalf of the Board that the Industrial Tribunal specifically on appreciation and observed and held that the Engine Driver of Kutch Division, Shri Shamji Devji Ayar was erroneously paid the higher pay scale of Rs. 350-560. It is submitted that the judgment and award passed by the learned Industrial Tribunal came to be confirmed by the Division Bench of this Court vide the common judgment and order dated 27/12/1993 and, therefore, it was requested to dismiss the aforesaid Special Civil Applications.

3.9 By the impugned common judgment and order the learned Single Judge has allowed all the aforesaid Special Civil Applications and has quashed and set aside the action of the Board in reducing the pay scale from Rs. 4000-6000 to Rs. 3050-4590 on cancellation of the pay scale earlier revised. The learned Single Judge has also directed that if the respective original petitioners of Special Civil Application No. 667/2003, 1287/2005 and 1290/2005 are not paid the benefit of the revised pay scale of Rs. 4000-6000 the same shall be paid to them. Consequently the learned Single Judge has also quashed and set aside the order of recovery. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Single Judge, the Board has preferred the present Letters Patent Appeals.

Shri Kamal Trivedi, learned Senior Counsel has appeared with Shri Mehul Rathod, learned advocate appearing on behalf of the appellant - Board and Shri Adeshra, learned advocate has appeared on behalf of the original respective petitioners.

4.1 Shri Kamal Trivedi, learned Senior Counsel appearing on behalf of the Board has vehemently submitted that the learned Single Judge has materially erred in holding that the original respective petitioners were entitled to the pay scale of Rs. 4000-6000. It is submitted that in fact the order passed by the learned Single Judge holding that the original respective petitioners were entitled to the pay scale of Rs. 4000-6000 as per the Revision of Pay Rules, 1988 with effect from 01/01/1996 is contrary to the pay rules. It is submitted that all the respective original petitioners were working as Work Charge Engine Driver in the erstwhile Public Health Works Division, Bhuj, Kutch of Public Health Engineering Circle (Panchayat and Health Department) of the State Government. It is submitted that by mistake the petitioner of Special Civil Application No. 23739/2005, Shri Shamji Damji Ayar, was wrongly put in the pay scale of Rs. 160-265 instead of Rs. 125-200. It is submitted that the respective original petitioners were therefore by mistake put in the pay scale of Rs. 350-560 instead of Rs. 160-265. It is submitted that as soon as the Board came to know about the same the same was sought to be revised and at that stage the respective original petitioners challenged their reduction. It is submitted that therefore when the Board sought to correct the mistake by restoring to the correct applicable pay scale, the learned Single Judge ought not to have interfered with the same. It is submitted that as such by granting the reliefs the learned Single Judge has created the non existing pay scale for the original respective petitioners, which was never in the vogue in the Department where they were working.

4.2 It is further submitted by Shri Trivedi, learned Counsel appearing on behalf of the Board that it is incorrect to say that the mistake was sought to be corrected after a period of 32 years. It is submitted that as such the mistake was sought to be corrected in the year 1994 itself, but at that time some of the respective original petitioners challenged the same before this Court and interim relief was granted in their favour on filing an undertaking that if they fail in the petitions they will refund the amount. It is submitted that thereafter the aforesaid Special Civil Applications came to be disposed of by relegating the respective original petitioners to approach the Board by filing the reply to the show cause notice.

4.3 Shri Trivedi, learned Counsel appearing on behalf of the Board has requested to consider the following chronology of important events, which according to him the learned Single Judge has failed to consider and/or appreciate properly.

4.4 It is further submitted by Shri Trivedi, learned Senior Counsel appearing on behalf of the Board that respondent No. 1-Shri Shamji Devji Ayar of Letters Patent Appeal No. 1355/2013 and other respondents in the cognate appeals were appointed under the Public Health Engineering Circle of Panchayats and Health Department of the State Government as Driver (Engine). It is submitted that the said respondents were never appointed under the Office of the Chief Engineers, Superintending Engineers and Directorate of Engineering Research Institute, Baroda of Public Works Department of the State Government. It is submitted that as per the Gujarat Civil Services Pay Rules, 1969 the pay scale of the Engine Driver of Public Health Engineer Circle was never Rs. 160-265 but the same was Rs. 125-200, where as the pay scale of Rs. 160-265 was prevalent in Public Works Department. It is submitted that therefore the pay scale of Engine Driver appointed in the office of the Chief Engineer & Superintendent Engineers of Public Works Department can never be made applicable to the respondents-original respective petitioners.

4.5 It is submitted that in the case of Shri Shamji Damji Ayar, the petitioner of Special Civil Application No. 23739/2005 (Letters Patent Appeal No. 1355/2003) an inadvertent mistake was committed on his initial appointment as Work Charge Engine Driver with effect from 12/06/1974 in applying the correct pay scale, which was sought to be rectified vide communication dated 15/10/1974. It is submitted that as such the respondent employee of Letters Patent Appeal No. 1356/2013 (Kasam Manjothi) and of Letters Patent Appeal No. 1397/2003 (P.V. Solanki) were appointed as Work Charge Engine Driver in correct pay scale. It is submitted that in other cases also the respondent employees were appointed either as Work Charge ''Helper'' or ''Chowkidar'' and subsequently taken as Engine Driver in correct pay scale. It is submitted that in the aforesaid case the arrears of pay scale was granted in 1980 and thereafter. It is submitted by Shri Trivedi, learned Senior Counsel appearing on behalf of the Board that there cannot be different pay scale for the same post under Public Health Engineer Circle of (Panchayats & Health Department) and in its different divisions/sub divisions. It is submitted that different divisions/sub divisions in Kutch region under the Public Health Engineering Circle cannot be expected to have different pay scale for the post of Engine Driver as compared to the pay scale applicable to the same post in the Division/Sub Division of Palanpur etc. It is submitted that though Revision of Pay Rules, 1969 refers to the post of Engine Drivers only with reference to Ahmedabad Region wherein Kutch Region was covered that does not mean that there is no source in the pay scale of Engine Driver for the divisions/sub divisions of Kutch, Rajkot, Palanpur etc as observed by the learned Single Judge.

4.6 It is further submitted that on the contrary a similarly situated Engine Driver working under the Palanpur Division approached the Industrial Tribunal by raising the industrial dispute claiming the pay scale of Rs. 160-265 citing the case of Shamji Devji Ayar, however, the industrial tribunal on appreciation of evidence has held that the correct original pay scale applicable to the Engine Driver was Rs. 125-200 and that the Engine Drivers at Kutch Division including Shri Shamji Devji Ayar were erroneously put in the pay scale of Rs. 350-560. It is submitted that the judgment and award passed by the learned Industrial Tribunal holding the above came to be confirmed by the learned Division Bench vide order dated 27/12/1993. It is submitted that the learned Single Judge has materially erred in not properly appreciating the aforesaid aspect and still granted the benefit of higher pay scale to Shri Shamji Devji Ayar and other Engine Drivers in the pay scale of Rs. 350-560 and thereafter in the pay scale of Rs. 4000-6000 as per the Revision of Pay Rules 1988.

4.7 It is further submitted by Shri Trivedi, learned Senior Counsel appearing on behalf of the Board that if the original respective petitioners, who have already retired now are continued to be in the pay scale of Rs. 4000-6000 as ordered by the learned Single Judge there shall be heavy financial burden upon the Board as all the retirement benefit/pension are required to be paid to the respective original petitioners in the pay scale of Rs. 4000-6000. Shri Trivedi, learned Senior Counsel appearing on behalf of the Board has however fairly conceded and has stated at the bar that as it can be said that there was mistake on the part of the Board in putting the respective original petitioners as Engine Drivers in the pay scale of Rs. 350-560 wrongly and, therefore, the Board has no objection if recovery of excess payment made to the original respective petitioners is set aside and has stated at the bar that the Board shall not recover any amount paid in excess to the original respective petitioners. However has requested to allow the present Letters Patent Appeal by quashing and setting the impugned common judgment and order passed by the learned Single Judge directing the Board to continue the original respective petitioners as Engine Drivers in the pay scale of Rs. 4000-6000 which otherwise they are not entitled to under the relevant pay Rules/Revision of Pay Rules.

Making the above submissions and relying upon the decisions, which were relied upon before the learned Single Judge, it is requested to allow the present Letters Patent Appeals to the aforesaid extent.

All these appeals are opposed by Shri J.A. Adeshra, learned advocate appearing on behalf of the original petitioners.

5.1 It is submitted that as such in the facts and circumstances of the case, no error has been committed by the learned Single Judge in allowing the main Special Civil Applications and in quashing and setting aside the decision of reducing the pay scale from Rs. 4000-6000 to Rs. 3050-4590 and consequently directing to pay benefit of revised pay scale of Rs. 4000-6000 to the respective petitioners which was available for the post of Engine Driver under the relevant Revision of Pay Rules.

5.2 It is further submitted by Shri Adeshra, learned advocate appearing on behalf of the original petitioners that earlier it was never the case on behalf of the appellants that grant of pay scale of Rs. 350-560 was wrong. It is submitted that therefore it was not open in the year 2005 to make a grievance that the initial pay scale was wrongly given with the pay scale of Rs. 350-560. It is further submitted that there is a specific finding recorded by the learned Single Judge that as such the pay scale of Engine Driver was Rs. 350-560 and thereafter as per the corresponding revision of pay it would be Rs. 4000-6000. It is submitted that as such pay scale of Rs. 350-560 which was paid to the original petitioners - Engine Drivers was revised to Rs. 1200-2040 and was further revised to Rs. 4000-6000. It is submitted that therefore the learned Single Judge has rightly held that the decision of the appellants of reducing the pay scale from Rs. 4000-6000 to Rs. 3050-4590 is absolutely illegal and therefore, the learned Single Judge has rightly directed the appellants to grant the benefits of revised pay scale of Rs. 4000-6000 to the respective petitioners.

5.3 It is further submitted by Shri Adeshra, learned advocate appearing on behalf of the original petitioners that the revised pay scale of Rs. 4000-6000 was sought to be reduced and in fact reduced to Rs. 3050-4590 solely on the ground that there was a mistake committed by the authority in granting the initial pay scale of Rs. 350-560. It is submitted that as such earlier it was never the case on behalf of the Board that there was a mistake in granting the pay scale of Rs. 350-560 to the Engine Driver - respective petitioners instead of Rs. 210-270. It is submitted that thereafter the respective petitioners continued to be granted the pay scale of Rs. 350-560 and even the same was granted after the proper verification and even it was recorded in the service book. It is submitted that therefore it was not open for the Board to take a plea/defence of mistake, in the year 2005 that initial pay scale of Rs. 350-560 was wrongly given.

5.4 It is further submitted by Shri Adeshra, learned advocate appearing on behalf of the original petitioners that there is an inordinate delay in reducing the pay scale which is not permissible.

5.5 It is further submitted that once the learned Single Judge has held that the pay scale for the post of Engine Driver was Rs. 350-560 as per the revised pay scale and as per the corresponding entry, the revised pay scale as per the ROP Rules would be Rs. 4000-6000 which is rightly granted by the learned Single Judge.

5.6 It is further submitted by Shri Adeshra, learned advocate on behalf of the original petitioners that except one person, all the respective petitioners have subsequently retired.

5.7 It is further submitted by Shri Adeshra, learned advocate appearing on behalf of the original petitioners that assuming for the sake of submissions that there was a mistake committed by the Board in granting the pay scale of Rs. 350-560, which was sought to be corrected after inordinate delay i.e. in the year 2005, the amount which is paid in excess cannot be permitted to be recovered as, as such it was the mistake on the part of the Board and such a mistake is not attributable to the original petitioners. It is submitted that therefore the learned Single Judge has also rightly quashed and set aside the recovery of excess payment made.

Making above submissions, it is requested to dismiss the present Letters Patent Appeals.

In reply Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of the appellants herein - original respondents has vehemently submitted that as such, as submitted earlier, there is no inordinate delay/delay in correcting the mistake. It is submitted that as such since 1994 and/or even prior to 1994, it was the specific case on behalf of the Board that there is a mistake in granting the pay scale of Rs. 1200-2040 instead of Rs. 950-1500 as initial grant of pay scale of Rs. 350-560 was wrong. It is submitted that therefore when the correct pay scale of Engine Driver was Rs. 260-350 as per the subsequent revision of pay, the corresponding pay scale would be Rs. 3050-4590. He has stated at the Bar that as it was a mistake on the part of the Board, the Board is not insisting for recovery of the excess payment made. However, if the order passed by the learned Single Judge granting pay scale of Rs. 4000-6000 would stand, even if the original petitioners have retired, it would have a large and huge financial liability upon the Board, as their pensions are required to be fixed accordingly [though they are not entitled to] and it would have a permanent financial liability.

Making above submissions, it is requested to allow the present Letters Patent Appeals.

Heard learned advocates appearing on behalf of respective parties at length. Considered the impugned judgment and order passed by the learned Single Judge in detail and the material on record.

7.1 At the outset it is required to be noted that what was challenged before the learned Single Judge was the decision of the appellant Board to reduce the pay scale of the respective petitioners initially appointed as Engine Drivers from Rs. 4000-6000 to Rs. 3050-4590 which was sought to be reduced on the ground that there was a mistake by the Board in granting the pay scale of Rs. 350-560 [initial] and thereafter the said mistake continued at the time of revision of pay scale as per the respective subsequent ROP Rules. It is the case on behalf of the appellant Board that as per the permissible pay Rules at the relevant time, the pay scale of Engine Driver was Rs. 125-200 and some of the persons were wrongly granted the pay scale of Rs. 160-265. It is submitted that therefore the said mistake continued when the pay scales were subsequently revised to Rs. 350-560 and thereafter to Rs. 1200-2040 and thereafter to Rs. 4000-6000. It is the case on behalf of the appellants that as such the correct pay scale of the Engine Driver was Rs. 125-200 which was also granted to some of the Engine Drivers at the relevant time, however thereafter they were wrongly placed in the pay scale of Rs. 350-560. It is the case on behalf of the appellants that initially the mistake was committed in the case of only one employee Shamji Devji Ayar and on the basis of the same the mistake continued. Therefore, it is the case on behalf of the appellants that thereafter after hearing the concerned employees - original petitioners, the order has been passed to reduce their pay scale from Rs. 4000-6000 to Rs. 3050-4590 and they have corrected the mistake. On the other hand, it is the case on behalf of the original petitioners that there was no mistake at all in granting the pay scale of Rs. 350-560 and that the corrected pay scale was Rs. 350-560 which was revised to pay Rs. 4000-6000. It was also the case on behalf of the petitioners that there is an inordinate delay in correcting the mistake i.e. in the year 2005, which is not permissible and also on the ground that now the respective petitioners have retired.

Therefore, the question which is required to be considered is what was the correct pay scale of Engine Driver at the relevant time and whether there was any mistake on the part of the Board in granting the pay scale of Rs. 350-560 and whether there is any inordinate delay in correcting the mistake and if it is held that there was a mistake on the part of the Board in granting the pay scale of Rs. 350-560 revised to Rs. 4000-6000 and they are permitted to rectify/correct their mistake and they may be permitted to recover the amount which is paid in excess and/or when the respective petitioners have retired, what relief should be granted?

Having heard learned advocates appearing for respective parties and considering the relevant Pay Rules more particularly Gujarat Civil Services Pay Rules, 1969 and the pay scale granted to some of the petitioners who were appointed as Engine Drivers, it appears that the pay scale of the Engine Driver at the relevant time was Rs. 125-200. However, there was a mistake committed by the Board in granting the pay scale of Rs. 260-400 in the case of one Shamji Devji Ayar and thereafter in the case of respective original petitioners and all of them were wrongly put in the pay scale of Rs. 160-265. It is required to be noted that thereafter the said mistake were continued while revising the pay scales as per the ROP Rules, 1975 revising the pay scale to Rs. 350-560 and thereafter to Rs. 1200-2040 as per the ROP Rules, 1987. At this stage it is required to be noted that in the year 1994 itself the Board tried to correct their mistake reducing the pay scale from Rs. 1200-2040 to Rs. 950-1500 which came to be challenged before this Court. That the chronological events have already been stated hereinabove. Therefore, it cannot be said that there is any inordinate delay in correcting the mistake. Right from 1994 the Board tried to correct the mistake and right from 1994 and even prior thereto it was the case on behalf of the Board that the corrected pay scale of the Engine Driver would be Rs. 265-350 and not Rs. 350-500. At this stage it is required to be noted that in the year 1987-88 a dispute was raised by the Engine Drivers working under Palanpur Division of the Board demanding similar pay scale given to the Engine Drivers i.e. Rs. 350-500, working under the Kutch Division which was ultimately referred to the Industrial Tribunal as Reference (IT) No. 407/1988 and in that case also the concerned employees relied upon the pay scale given to Shamji Devji Ayar and after adjudication the learned Industrial Tribunal passed an award in the year 1992 holding that the pay scale in the Kutch Division has been given by mistake and, after adjudication, the pay scale came to be fixed at Rs. 125-200 and the learned Tribunal rejected the said reference. That the said judgment and award came to be confirmed by the Division Bench of this Court by judgment and order dated 27/12/1993. It is required to be noted that thereafter the Board rectified their mistake and placed the original petitioner Shamji Devji Ayar in the pay scale of Rs. 950-1500 from the pay scale of Rs. 1200-2040 which came to be challenged by way of Special Civil Application No. 1658/1994 along with other similar petitions challenging the reduction effected by the authorities and the learned Single Judge by order dated 02/11/1999 disposed of the aforesaid Special Civil Applications with a direction to the Board to hear the petitioners therein and then pass appropriate orders. Pending the same the Board continued the mistake and revised the pay scale to Rs. 4000-6000 from Rs. 1200-2040 instead of Rs. 3050-4590 from Rs. 950-1500. That thereafter pursuant to the earlier directions issued by this Court after giving opportunity to the respective petitioners the impugned order has been passed rectifying the mistake and reducing the pay scale of respective petitioners to Rs. 3050-4590 from Rs. 4000-6000. Considering the ROP Rules and even the judgment and award passed by the learned Industrial Tribunal in Reference (IT) No. 407/1988, which came to be confirmed by the Division Bench of this Court, corrected pay scale of the Engine Driver at the relevant time was Rs. 125-200 and by mistake the pay scale of Rs. 160- 265 was given to one Shamji Devji Ayar. We are of the opinion that considering the relevant ROP Rules, 1969 and the ROP Rules, 1975 and the material on record and even the judgment and order passed by the learned Industrial Tribunal in Reference (IT) No. 407/1988 confirmed by the Division Bench of this Court, the corrected pay scale of the Engine Driver was Rs. 125-200 and therefore, the same was required to be revised to Rs. 265-350 [as per the ROP Rules, 1975] and thereafter to Rs. 950-1500 [as per the ROP Rules, 1987] and thereafter to Rs. 3050-4590 [as per the ROP Rules, 1998]. It appears as the pay scale of Rs. 160-265 was wrongly given and it was given by mistake and that too in the case of only one employee at the relevant time i.e. Shamji Devji Ayar, the mistake continued and at the time of revision of pay Rules in the year 1975 the said mistake continued and the pay scale was revised to Rs. 350-560 and thereafter further revised to Rs. 1200-2040 and thereafter to Rs. 4000-6000. Therefore, we are of the opinion that the learned Single Judge has materially erred in holding that the correct pay scale of the Engine Driver was Rs. 350-560 and thereafter as per the ROP Rules, 1998 at Rs. 4000-6000. While holding so the learned Single Judge has not properly appreciated the relevant ROP Rules and even the judgment and award declared by the learned Industrial Tribunal in Reference (IT) No. 407/1988 confirmed by the Division Bench of this Court. At this stage it is required to be noted that in the Reference of 1988 the Industrial Tribunal after proper adjudication specifically held that the correct pay scale of the Engine Driver is Rs. 125-200 and even the same came to be confirmed by the Division Bench of this Court. Therefore, as such the decision of the Division Bench of this Court confirming the judgment and award passed by the learned Industrial Tribunal passed in Reference (IT) No. 407/1988 was binding to the learned Single Judge. Under the circumstances, when the Board committed the mistake in granting the initial pay scale of Rs. 350-560 and the said mistake came to be continued, which is sought to be corrected and thereafter as per the ROP Rules, they are to be put in the correct pay scale of Rs. 3050-4590 and that too after giving the opportunity to the petitioners as per the directions issued by this Court in earlier petitions, it cannot be said that the Board committed any error in correcting the mistake. From the chronological events as stated hereinabove it cannot be said that there was any inordinate delay on the part of the Board in correcting the mistake. As observed hereinabove even in the year 1987-88, there was a dispute with respect to the correct pay scale and even in the year 1994 also the pay scale was sought to be reduced to Rs. 950-1500 from Rs. 1200-2040 which was challenged before this Court in the year 1994 itself. Under the circumstances, the learned Single Judge has materially erred in quashing and setting aside the reasoned order passed by the authority in reducing the pay scale to Rs. 3050-4590 from Rs. 4000-6000 and has materially erred in holding that the correct pay scale of the Engine Driver would be Rs. 4000-6000. The finding recorded by the learned Single Judge is as such contrary to the ROP Rules and even the finding recorded by the learned Tribunal confirmed by this Court. It cannot be disputed that if there is any mistake committed the same can be rectified, however there cannot be any recovery of excess amount paid unless it is found that the mistake is attributable to the concerned employee.

8.1 Now, so far as the submission made by Shri Adeshra, learned advocate appearing on behalf of the original petitioners that even otherwise there cannot be any recovery of excess amount paid and the learned Single Judge has rightly set aside the order of recovery of excess payment is concerned, Shri Adeshra, learned advocate appearing on behalf of the original petitioners is justified in making the grievance. At this stage it is required to be noted that even Shri Trivedi, learned Senior Advocate appearing on behalf of the appellants has specifically stated at the Bar that the Board is not insisting for the recovery of the excess amount paid. In view of the above, impugned common judgment passed by the learned Single Judge quashing and setting aside the order of recovery of excess amount paid is required to be confirmed.

8.2 Now, so far as the contention on behalf of the original petitioners that except two or three employees, all of them have retired and therefore, the present Letters Patent Appeals may be dismissed is concerned, it is required to be noted that by the impugned judgment and order, the learned Single Judge has directed the appellants to grant the benefit of pay scale of Rs. 4000-6000 which as observed hereinabove cannot be sustained. As observed hereinabove, the correct initial pay scale of the respective petitioners would be Rs. 265-350 and corresponding Rs. 3050-4590 as per ROP Rules, 1998. Therefore, if the impugned judgment and order passed by the learned Single Judge is not set aside and the original petitioners are continued to be granted the benefit of pay scale of Rs. 4000-6000, in that case there is likelihood of huge financial permanent liability upon the Board which is a public body. The pension of the respective petitioners shall be fixed considering their pay scale of Rs. 4000-6000 [which they are held to be not entitled to]. Under the circumstances, the contention on behalf of the original petitioners that as they have retired, the present Letters Patent Appeals may be dismissed, cannot be accepted. If despite the fact and it is held that the correct pay scale of the Engine Driver as per the revised ROP Rules, 1998 would be Rs. 3050-4590 if the impugned judgment and order passed by the learned Single Judge directing the appellants to grant the benefit of pay scale to the original petitioners in the pay scale of Rs. 4000-6000 is not interfered with, in that case it would be continuing the mistake and/or perpetuating the illegality which is not permissible.

In view of the above and for the reasons stated above, all these Letters Patent Appeals succeed in part. The impugned common judgment and order dated 10/06/2013 passed by the learned Single Judge quashing and setting aside the decision of the appellants reducing the pay scale from Rs. 4000-6000 to Rs. 3050-4590 and cancellation of the pay scale earlier revised and directing the appellants to grant the benefit of revised pay scale of Rs. 1200-2040 and Rs. 4000-6000 to the respective original petitioners is hereby quashed and set aside and the order passed by the Board reducing the pay scale from Rs. 4000-6000 to Rs. 3050-4590 of the respective petitioners is hereby restored. However, the impugned common judgment and order passed by the learned Single Judge quashing and setting aside the recovery of the excess amount paid to the original petitioners is hereby confirmed [as even otherwise Shri Trivedi, learned Senior Advocate has stated at the Bar that the appellants herein are not insisting for the recovery of the excess amount paid by mistake]. All these Letters Patent Appeals are partly allowed to the aforesaid extent, however there shall be no order as to costs.

In view of disposal of main appeals, respective Civil Applications stand disposed of.