Recovery after 12 years not permissible. Ad-hoc service can be treated as continuous for all purposes. AGP implementation directed.

JUDGMENT :

1. By an order dated 02.03.2022, the grievances raised by the petitioner were set out. The order dated 02.03.2022 reads as under :

“1 Three fold grievances have been raised by the petitioner in the present petition.

2. Firstly, the petitioner has challenged the order dated 01.04.2021 by which, the benefits of the 6th Pay Commission with effect from 01.01.2006 to 10.05.2009 are sought to be recovered on the ground that the petitioner was not eligible to the same.

3. Mr.Ketan Dave, learned advocate for the petitioner, would submit that the petitioner’s initial appointment on ad-hoc basis was in a pay scale, there was no break in service inasmuch as, on being appointed on an ad-hoc Lecturer she continued to served on ad-hoc basis from 12.04.1993 to 10.05.2009 without a break. She joined the Degree College on 11.05.2009. In the order of recovery, reliance is placed on the communications dated 19.03.2015 (page 80) and 18.07.2020 (page 81).

4. This Court by an order dated 23.04.2021 has granted adinterim relief against the recovery. Mr.Dave, learned advocate for the petitioner would submit that in addition to the petitioner being entitled to the pay-scale on merits, the order of recovery was made 12 years after the fixation was approved by the Examiner of Local Funds as is evident from (pg.32) dated 27.5.2011. The pay scale was verified as is evident from Annexure-’E’ (pg32).

5. The second grievance of the petitioner is that she is entitled to the AGP of Rs.7,000/- with effect from 11.5.2014 and an order has been issued on 3.6.2019, but the same is not being implemented. The third grievance is of treating the period of past service as an ad-hoc Lecturer from 12.4.1993 to 10.5.2009 as continuous for all purposes, since the petitioner has been regularized without any brake in service from 11.5.2009. He would rely on an interim order dated 27.10.2021 passed in Special Civil Application No. 6312 of 2021 and allied matters.

6. Prima facie, as far as recovery is concerned, irrespective of whether the petitioner was entitled to the scale on merits, it is sought to be recovered after 12 years. The mistake cannot be corrected after more than three years as by the decision of the Hon’ble Supreme Court in the case of Bharat Sanchar Nigam Limited vs. BPL Mobile Cellular Ltd reported in 2008 (13) SCC 597. Moreover, even as held by the Hon’ble Supreme Court in the case of State of Punjab vs. Rafiq Masih(white whasher)., reported in 2015 (4) SCC 334., the recovery cannot be made.

As far as the implementation of the order dated 03.06.2019 granting the AGP of Rs.7,000/- and the benefits of continuity of service for the past period from 12.4.1993 to 10.5.2009 is concerned, the State shall take appropriate stand and file a reply on, or before, 16.03.2021.

Stand over to 17.03.2021.”

2. The facts in brief are as under:

2.1 The petitioner possesses educational qualification of M.E (Chemical Engineering). She is serving as an Assistant Professor in Chemical Engineering at L.D. College of Engineering, Ahmedabad, on permanent basis.

2.2 The petitioner was initially appointed on a vacant post of lecturer in the government engineering college on an adhoc basis by an order dated 31.03.1993. She was so appointed in the payscale of Rs.2,200-4,000/- She joined her services on 12.04.1993. On being regularly selected by the Gujarat Public Service Commission (for short “the GPSC”), for the post of lecturer in Chemical Engineering in the revised payscale of Rs.8,000-13,500/-, she was given posting at L.D.College of Engineering, Ahmedabad, vide order dated 08.05.2009. She joined her services at L.D. Engineering College on 11.5.2009. She was made permanent on completion of two years’ probation with effect from 26.05.2011 vide order dated 22.02.2012.

2.3 During the course of her services on an adhoc basis, she was re-designated as Assistant Professor and the earlier payscale of Rs.2,200-4,000/- was revised to Rs.8,000-13,500/- and further revised to the pay band of Rs.15