JUDGMENT :

A.S. SUPEHIA, J.

1. The present writ petition is filed seeking quashing and setting aside the recovery orders dated 08.09.2010, 21.08.2010, 31.03.2011 and 07.07.2012 and also prayed to grant regular pensionary benefits.

2. The facts of the case are that the petitioner was appointed on 25.05.1972 as an English Typist in R & B Division at Himmatnagar. He was promoted to the post of Senior Clerk vide order dated 25.05.2007.

2.1. It is the case of the petitioner that after he retired on 30.11.2009, the respondents did not pay regular pension and instead granted provisional pension benefits to the petitioner on 24.05.2010 after lapse of 6 months period though no inquiry case or Court proceedings were pending.

2.2. The pension case of the petitioner was prepared belatedly by the respondent No. 3 and it was sanctioned and the regular pension order was made on 04.05.2011. Thereafter, again additional recovery order for Rs.19,440/- was made towards so-called excess payment for the commutation of leave on 31.03.2011 which is ordered to be adjusted against leave salary payable to the petitioner on retirement by taking forced consent.

3. At the outset, learned advocate Mr. Pandit for the petitioner has submitted that the present petition is confined to the aspect of recovery only.

3.1. Learned advocate Mr. Pandit appearing for the petitioner has submitted that the petitioner was appointed in the pay-scale of Rs. 130-240/- to the post of English Typist from 1972 onwards. Subsequently, the pay-scale was revised and his scale was fixed as Rs. 260-400/- and the last pay-scale was revised as Rs. 950-1500/- by giving the effect of Revision of Pay Rules, 1987. It is submitted that the petitioner was promoted to the post to Senior Clerk on 25.05.1987 and, therefore, again his pay-scale was altered from Rs. 950-1500/- to Rs. 1200-2040/- and his pay was fixed at Rs. 1290/- with effect from 01.07.1987. Subsequently, on completion of 9 years service as typist, as per the government Resolution dated 05.07.1991, he was granted the benefit of 1st Higher Pay-Scale with effect from 01.06.1987 and his pay was fixed at Rs. 1290/- but effect was given from 01.06.1987 which was sanctioned by the Local Fund Audit. He has submitted that time and again after completion of 9 years service in the cadre of Senior Clerk, petitioner is granted the benefit of 2nd Higher Pay-Scale of Head Clerk as Rs. 1400-2600/- and his pay was fixed at Rs. 1650/- with effect from 01.07.1996 which was also sanctioned by the Local Fund Audit. Thereafter, the pay-scales were revised as per the G.R. dated 07.01.1998 considering 5th Pay Commission and scale to scale his pay was revised at Rs. 5000-8000/- with effect from 01.07.1996.

3.2. Learned advocate Mr. Pandit has further placed reliance on the Rule 28 (2) of the Gujarat Civil Services (Pay) Rules, 2002 and has submitted thus:

"(2) When any rule or order regulating pay is made with retrospective effect, the pay of a Government employee affected by such order or rule, shall be fixed notionally as it the rule or order were applicable in his case but the Government employee concerned shall not be called upon to refund the resultant amount of over payment on account of pay and allowances."

Thus, he has submitted that a bare reading of the Rule 28 reveals that the respondent cannot recover any amount from the petitioner on account of so-called over payment and the case of the petitioner is squarely covered under this rule but the Rule is misinterpreted by the respondents in the order dated 07.07.2012 by stating that the said recovery is made for the excess payment of higher pay-scale and the Rule is applicable in case of appointment or promotion only. It is contended that the higher pay-scale scheme came into existence in lieu of promotion and the pay-scale of promotional post is paid to the Government employee and hence, the Rule for promotion is directly applicable in the higher pay-scale scheme also. Learned advocate Mr. Pandit has su