JUDGMENT :

Mohit S. Shah, J.

The petitioner is a Judicial Officer holding the post of a Judge in the Presidency Small Causes Court at Ahmedabad. The petitioner has challenged the communication dated 3rd January, 2009 (Annexure-G) and the order dated 3rd June, 2004 (Annexure-E) for recovery of the amounts, which were paid to the petitioner in the past, on the ground that excess amounts were paid to the petitioner on account of erroneous fixation of the petitioner's pay.

2. Mr. Paresh Upadhayay, learned counsel for the petitioner, submits that the fixation of the petitioner's pay in the past was rightly done by the Principal Judge, City Civil Court, Ahmedabad and the view of respondent Nos.2 to 4 that the petitioner's pay was required to be fixed at a lower amount is contrary to law but since after about one year, the petitioner will be attaining the age of superannuation i.e. on 20th April, 2010, raising any controversy about correctness or otherwise of the re-fixation order will unnecessarily delay the preparation of his pension papers and for that reason alone, the petitioner has not challenged the decision of the respondent Nos.2 to 4 for re-fixation of the petitioner's pay. Mr. Upadhayay further submits that the petitioner has, therefore, confined his challenge to the order of recovery proposed to be made by the respondents.

3. The petitioner joined the State Government service as Stenographer Grade-I (Private Secretary) in the City Civil Court, Ahmedabad on 18th March, 1978. Upon completion of 9 year's service, the petitioner was granted the first higher grade scale on 1 st June, 1987 as per the Government scheme prevailing at the relevant time. Thereafter, the petitioner was selected and appointed as Civil Judge (Junior Division) by Notification dated 6th December, 1995 and his posting order was issued on 20th December, 1995 and the petitioner joined as Civil Judge (Junior Division) on 16th January, 1996. In the year 1998, the petitioner's pay came to be revised on the basis of the Gujarat Civil Services (Revision of Pay) Rules; 1998 which came into effect from 1st January, 1996 and the petitioner's pay was fixed at Rs. 11,300/- as on 16th January, 1996 in the scale of Rs. 8000-13500. This was done by order dated 8th May, 1998 passed by the learned District Judge, Kheda at Nadiad. For making this fixation, the learned District Judge considered that the duties and responsibilities of the cadre of Civil Judge (Junior Division) and J.M.F.C. are higher than the duties and responsibilities of the cadre of Private Secretary (English Stenographer). Hence, the petitioner's pay was fixed at Rs. 11,300/- in the revised pay scale of Rs. 8000-275-13500 w.e.f. 16th January, 1996 as per Rule 41(a)(i) of the Bombay Civil Services Rules; 1959 which provided for granting additional increment to an officer appointed on the post carrying higher duties and responsibilities.

4. On the basis of the aforesaid pay fixation, made by order dated 8th May, 1998, the petitioner's pay was also fixed for the subsequent years. The Examiner, Local Fund Accounts in the office of Director of Accounts & Treasuries - respondent No.3 herein and the District Assistant Examiner, Local Fund Accounts - respondent No.4 herein, however, took the view in the year 2004 that the post of Civil Judge (Junior Division) could not be considered as a post with duties and responsibilities higher than the duties and responsibilities of the post of Stenographer previously held by the petitioner and therefore, while fixing his pay as on 16th January, 1996, the petitioner could not have been given the benefit of additional increment. This view was reflected in the communication dated 30th April, 2004 of respondent No.4 to the Registrar, City Civil Court, Ahmedabad. Therefore, the Principal Judge, City Civil Court, Ahmedabad passed the impugned order dated 3rd June, 2004 re-fixing the petitioner's pay at Rs. 11,050/- w.e.f. 16th January, 1996 and consequent reduction in the pay for th