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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. KOGJE, J.
Shivani Arvindkumar Sonawane – Appellant
Versus
State Of Gujarat & 3 Others – Respondents
R/Special Civil Application No. 1095, 1122 of 2017, 21719 to 21735, 21770 to 21788, 21806 to 21822, 21930, 21937 of 2016
Decided on : 30-09-2022
GIDC (STAFF) REGULATIONS, 1963 - APPOINTMENT - PAY SCALE - RECOVERY OF EXCESS PAYMENT - PRINCIPLE OF NATURAL JUSTICE - SERVICE CONDITIONS - FIXED PAY - GOVERNMENT POLICY - MISTAKE - ADMINISTRATIVE INSTRUCTION - STATUTORY RULE - CIRCULAR - RESOLUTION - SECTION 54 OF GIDC ACT, 1962 - SECTION 17 OF GIDC ACT, 1962 - GOVERNMENT RESOLUTION DATED 16.02.2006 - GOVERNMENT RESOLUTION DATED 29.04.2010 - GOVERNMENT RESOLUTION DATED 06.10.2011 - GOVERNMENT RESOLUTION DATED 23.10.2014 - GOVERNMENT RESOLUTION DATED 20.10.2015 - ARTICLE 14 OF THE CONSTITUTION OF INDIA - PUNJAB WATER SUPPLY & SEWERAGE BOARD VS. RANJODH SINGH AND OTHERS - STATE OF SIKKIM VS. DORJEE TSHERING BHUTIA AND OTHERS - C.L. VERMA VS. STATE OF MADHYA PRADESH AND ANOTHER - BALCO CAPTIVE POWER PLANT MAZDOOR SANGH & ANR. VS. NATIONAL THERMAL POWER CORPORATION & ORS. - STATE OF PUNJAB & ORS. VS. RAFIQ MASIH - RAJESH PRAVINCNAHDRA RAJYAGURU VS. GUJARAT WATER SUPPLY & SEWERAGE BOARD & ORS.
Fact of the Case:
Petitioners were appointed in GIDC in various posts as per advertisement published in newspaper. Petitioners were appointed on regular pay scale and not on fixed pay scale. After two years of completion of probation period, petitioners were deemed to have been confirmed in service. Petitioners received impugned order dated 22.12.2016 issued by Executive Director of GIDC, withdrawing all appointments made in regular pay scale of Class-III and directing all such appointments to be fixed as per Government Resolutions dated 16.02.2006, 29.04.2010, 06.10.2011, 23.10.2014 and 20.10.2015. Petitioners challenged the impugned order.
Finding of the Court:
1. GIDC (Staff) Regulation, 1963 is a statutory rule/regulation passed by the State Legislature under Section 54 of GID Act, 1962. Circular or resolution passed by Government would not apply to the staff of the Corporation as they are covered under special law, i.e. GIDC (Staff) Regulation, 1963. 2. Petitioners were appointed on pay scales as per the GIDC (Staff) Regulation, 1963, and not on fixed pay scale. Petitioners completed the probation period as per the terms of appointment, and after such completion of probation period, which was not extended by the authority, the petitioners were deemed to have been confirmed in service on completion of probation period. 3. Impugned order changing the service conditions of the petitioners causing prejudice could not have been passed without giving an opportunity of hearing, which is held by catena of judgments. 4. Petitioners acquired their vested right on completion of probation period. They were appointed strictly in accordance with GIDC (Staff) Regulation, 1963. Without issuing notice to change the service condition, the impugned order converting the petitioners from regular employee to fixed pay employee could not have been passed and is not sustainable in law. 5. No recovery from Class-III or Class-IV employee was permitted by decision in case of State of Punjab & Ors. Vs. Rafiq Masih.
Issues: 1. Whether the impugned order dated 22.12.2016 issued by Executive Director of GIDC, withdrawing all appointments made in regular pay scale of Class-III and directing all such appointments to be fixed as per Government Resolutions was valid? 2. Whether the petitioners were entitled to the pay scales as per the GIDC (Staff) Regulation, 1963? 3. Whether the petitioners were entitled to an opportunity of hearing before changing their service conditions? 4. Whether the petitioners acquired vested rights on completion of probation period? 5. Whether the recovery from Class-III or Class-IV employee was permissible?
Ratio Decidendi: 1. Circular or resolution passed by Government would not apply to the staff of the Corporation as they are covered under special law, i.e. GIDC (Staff) Regulation, 1963. 2. Petitioners were appointed on pay scales as per the GIDC (Staff) Regulation, 1963, and not on fixed pay scale. Petitioners completed the probation period as per the terms of appointment, and after such completion of probation period, which was not extended by the authority, the petitioners were deemed to have been confirmed in service on completion of probation period. 3. Impugned order changing the service conditions of the petitioners causing prejudice could not have been passed without giving an opportunity of hearing, which is held by catena of judgments. 4. Petitioners acquired their vested right on completion of probation period. They were appointed strictly in accordance with GIDC (Staff) Regulation, 1963. Without issuing notice to change the service condition, the impugned order converting the petitioners from regular employee to fixed pay employee could not have been passed and is not sustainable in law. 5. No recovery from Class-III or Class-IV employee was permitted by decision in case of State of Punjab & Ors. Vs. Rafiq Masih.
Final Decision: Petitions were partly allowed. Impugned order dated 22.12.2016 was set aside. However, respondents were allowed to take action in accordance with law and following principle of natural justice.
JUDGMENT :
1. RULE. Learned AGP Ms.Shruti Pathak waives service of Rule on behalf of respondent No.1 and learned Advocate Mr.Chinmay Gandhi waives service of Rule on behalf of respondent No.2.
2. All these petitions are having identical facts and arise in common background and therefore, with consent of learned Advocates for the parties, are taken up for joint hearing and disposal. The facts are recorded from Special Civil Application No.21719 of 2016.
3. This petition along with group of petitions is preferred with the prayer to quash and set aside the impugned order dated 22.12.2016 passed by respondent No.2, whereby all appointments made in the regular pay scales of Class-III cadre vide advertisement dated 11.05.2013 were withdrawn from the date of their appointments and all such appointments were directed to be fixed as per the Finance Department’s GRs dated 16.02.2006, 29.04.2010, 06.10.2011, 23.10.2014 and 20.10.2015. It was informed that the petitioners would be liable to deposit amount paid in excess of their salaries to the Chief Accounts Officer, Gandhinagar in excess to their salary to the Chief Accountant Office, Gandhinagar.
4. The brief facts are as that on 11.5.2013, GIDC published advertisement for various kinds of recruitment for Class- I, Class-II and Class-III in various branches in local newspaper, pursuant to which, the petitioner, since was fulfilling eligibility criteria, had submitted online application form. After scrutiny of the forms, the petitioner was issued with letter for written examination and accordingly, the petitioner appeared in the written examination.
4.1 After passing written examination and viva-voce, the petitioner was found suitable, was issued with the appointment order on 16.11.2003 to the post for which the petitioner applied for. In the appointment order, the pay scale and pay grade was very much mentioned which was applicable to regular employee. In fact, the appointment was made in accordance with the provisions of the GIDC (Staff) Regulation, 1963. In the said appointment order, it was also mentioned that the petitioner would be on probation for a period of two years. The petitioner resumed the duty and completed the probation period of two years successfully and the GIDC did not extend the period of probation. Hence, as and when the petitioner completed two years from the date of resumption of duty, the petitioner was deemed to have been in the service, like regular employee.
4.2 The petitioner received the impugned order dated 22.12.2016 issued by the Executive Director of GIDC, as per which the petitioner’s appointment in the regular pay scale of Class-III is withdrawn and all the appointments were to be fixed as per the Government Resolutions dated 16.2.2006, 29.4.2010, 6.10.2011, 23.10.2014 and 20.10.2015, as such, the impugned order is passed on the basis of the communication dated 26.10.2016 made by respondent No.1 to respondent No.2. As per the impugned order, the Chief Account Officer has given estimated amount for recovery of alleged excess payment towards salary paid to the petitioner.
4.3 The impugned order is passed without affording any opportunity to the petitioner and without amending the GIDC (Staff) Regulations and more particularly, as per the communication dated 26.10.2016, order of respondent No.2 to withdraw the appointment of the petitioner and also direct to deposit the salary paid to the petitioner as per the pay scale specified in the appointment order, the impugned order is per se illegal and unlawful, arbitrary and tenable.
5. Learned Advocate for the petitioners submitted that the respondents have relied upon circulars dated 23.3.1998 (Page-162), 24.3.1998 (Page-165), Resolution dated 16.2.2006 (Page- 167), 18.8.2009 (Page-196). All these circulars and resolutions cannot supersede the GIDC (Staff) Regulation, which is statutory Rule/Regulation passed by the State Legislature. The power to frame the regulation is derived from Section 54 of GID Act, 1962. As
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