Important Point-It would be impermissible for employer to effect recovery from employees belonging to Class-III posts and retired employees.

1. Leave to amend the prayer-clause at Paragraph-14(A) is granted. The necessary amendment be carried out forthwith.

2.The challenge in this petition is to the order dated 27.02.2008, issued by the Superintendent of Police, Surendranagar, respondent No.3 herein, whereby the benefit of higher pay-scale granted to the petitioner has been withdrawn and recovery has been ordered to be made from the petitioner. It is further prayed that the respondents may be directed to return the amount recovered, if any, to the petitioner with interest at the rate of 18% per annum.

3. Briefly stated, the facts of the case are as follows:

The petitioner was appointed as an Unarmed Police Constable in the Gujarat State Police by an order dated 21.01.1969. He was promoted to the post of Head Constable, Grade-II, on 17.07.1978. The petitioner was granted promotion as Assistant Sub Inspector (Unarmed Head Constable, Grade-I) with effect from 01.01.1981. As the petitioner had remained on the post of Assistant Sub Inspector (Unarmed Head Constable, Grade-I) for nine years, he was given the benefit of higher pay-scale with effect from 01.01.1990, by an order dated 22.05.2001, as per the Government Resolution dated 16.08.1994, which provides for the grant of higher pay-scale to employees who have remained stagnant in the same cadre due to the absence for restricted chances, of promotion. The higher pay-scale granted to the petitioner was the pay-scale of the post of Police Sub Inspector (PSI). Accordingly, by an order dated 06.06.2001, the pay of the petitioner was fixed in the scale of Rs.55001759000 with effect from 01.01.1990, as per the Government Resolution dated 16.08.1994. The petitioner, thereafter, cleared the departmental examination held for promotion from the post of Assistant Sub Inspector to the post of PSI in the yea 1998 and was promoted as PSI by an order dated 24.11.1998, with effect from 05.12.1998. There was no difference in the pay-scale of the petitioner after his promotion, as he was already drawing the pay-scale of the post to which he was promoted. The petitioner served satisfactorily as PSI, for about nine years in Kutchh and Surendranagar Districts and thereafter applied for voluntary retirement. By an order dated 31.08.2007, the petitioner was permitted to retire voluntarily. After retirement, respondent No.3 sent the pension papers of the petitioner to the office of respondent No.4, Director, Pension and Provident Fund, for the fixation of the pension of the petitioner. Respondent No.4 informed respondent No.3 that, as per the communication dated 27.01.2006 of the Home Department, employees who have not passed the departmental examination were not entitled to higher pay-scales. For this reason, the case of the petitioner was returned to the office of respondent No.3. Thereafter, the impugned order dated 27.02.2008, directing the cancellation of the benefits of higher pay-scale granted to the petitioner was passed by respondent No.4 and recovery was directed to be effected.

4. As the recovery of Rs.2,31,631/was contemplated from the retiral dues of the petitioner, vide letter dated 15/19.04.2010, the petitioner approached this Court by way of the present petition. At the time of issuance of notice in the petition, this Court, vide order dated 23.02.2011, granted ad-interim relief restraining the respondents from recovering the amount of Rs.2,31,631/. The interim order has been confirmed at the time of the issuance of Rule in the petition. It is in operation as of date.

5. Mr.P.H.Pathak, learned advocate for the petitioner, has made elaborate submissions, the gist of which is recorded hereinbelow:

(I) That the impugned order dated 27.02.2008, cancelling the grant of higher pay-scale to the petitioner and ordering recovery to be made, is the unilateral decision of respondent No.3. The petitioner was not put to notice or granted an opportunity of hearing before the passing of the said order.

(II) The petitioner has retired