Point of Law - Supreme Court has directed that the recovery from the employees belonging to the Class-III and IV service is “impermissible in law” and also if the same is effected after a period of five years. Unquestionably, the petitioners are belonging to Class-IV employees and the recovery is after more than five years. Hence, the recovery in their case would be “impermissible in law”.

JUDGMENT :

1. By way of this petition, the petitioners have challenged the legality, validity, propriety and correctness of the communication dated 08.01.2019 and 29.04.2019. The impugned communications have been issued under the Government Resolution dated 18.02.2011 issued by the Finance Department of State of Gujarat, by which;

[a] the respondent no.2 has been directed to fix pay of the petitioners in the pay scale of Rs.5200-20200 with grade pay of Rs.2000 instead of Rs.2400;

[b] to cancel the grade pay of Rs.2400 on the ground that it was erroneously fixed by the respondent no.3; and

[c] the proposal forwarded by respondent no.2 for approval of grade pay of Rs.2400 has been refused by respondent no.3.

2. The brief facts of the case are as under:-

2.1. The petitioners were appointed on the isolated posts of Drivers against the sanctioned set up of the High Court of Gujarat on different dates ranging from January, 1991 to February, 2001. The initial pay of the post of drivers was Rs.950-1500. The pay scale was revised from Rs.950-1500 to Rs.3050-4590 with effect from 01.01.1996 as per the fifth pay commission. Accordingly, the pay of the eligible petitioners was revised in the above pay scale.

2.2. As per the resolution dated 02.07.2007 issued by the respondent no.1, the “Scheme of Higher Grade Scale at 12 and 24 years for Government Employees” was introduced. Accordingly, the corresponding pay scale was revised from Rs.3050-4590 to Rs.4000-6000. Vide Government Resolution dated 27.02.2009, the Finance Department of Government of the Gujarat made Gujarat Civil Services (Revision of Pay) Rules, 2009, which are deemed to have come into force with effect from 01.01.2006. By virtue of the aforesaid notification, corresponding pay scale of the petitioners is revised to Rs.5200-20200 with the grade pay of Rs.2,400/-

2.3. The respondent no.1, then came up with a resolution dated 18.02.2011 with regard to higher pay scale for the isolated posts or the posts with limited chance of promotion. By virtue of this resolution, it amended the resolutions dated 16.08.1994, 14.08.1998 and 02.07.2007 issued by the respondent no.1. The respondent no.2 had sought for approval of the respondent no.3 for grant of the first higher grade scale in the pay scale of Rs.5200-20200 with grade pay of Rs.2,400/- as per the 6th Pay Commission.

2.4. In response to the above communication, the respondent no.3 raised an objection and asked the respondent no.2 to fix the grade pay of the petitioners to Rs.2,000/-, in place of existing grade of Rs.2,400/- and also asked to cancel the higher grade of Rs.2,400/- already approved by it, under the pretext that the same has been erroneously approved by the said office. By the communication dated 04.04.2019, the respondent no.2 reiterated the proposal, inter alia on the ground that the pay verification unit has approved grant of benefit of the first higher grade scale in the revised pay scale of Rs.5200-20200 with grade pay of Rs.2,400 as per 6th Pay Commission with effect from 01.07.2013.

3. Learned advocate Mr.Nirad Buch appearing for the petitioners has submitted that the impugned objection raised by the Respondent No. 3 is arbitrary and violative of fundamental right to equality. It is stated that when the Respondent No.3 has approved grade pay of Rs. 2400 in case of Petitioner Nos. 11 to 14, there is no reason for denying the said benefit to the other petitioners.

4. Learned advocate Mr.Nirad Buch appearing for the petitioners has submitted that the benefits approved in cases of petitioner nos. 11 to 14 with effect from 01.07.2019 cannot be ordered to be taken away in such an arbitrary manner. It is further submitted that it is a cardinal principle of law that the higher grade paid to the employee cannot be recovered even if it was paid by mistake. He has submitted that the Government Resolution dated 16.08.1994 is more than clear on this aspect.

5. Learned advocate Mr.Nirad Buch appearing for the petitioners has submitt