IMPORTANT POINT
Recovery of excess payments from Class-III employees is impermissible without evidence of fraud or misrepresentation, emphasizing adherence to natural justice principles.

JUDGMENT :

Vaibhavi D. Nanavati, J.

1. Heard Mr. Samir B. Gohil, learned advocate appearing for the petitioner and Ms. Pooja Ashar, learned advocate appearing for the respondent nos. 1 and 2.

2.1. Briefly stated that, the petitioner was appointed as Librarian on 20.02.1990 and was serving at Dudhiya High School, Limkheda since 1990.

2.2. The petitioner was granted 1st higher pay scale of Rs.5000-8000, w.e.f. 20.02.1999 and became entitled for the 2nd higher pay scale, upon completion of 15 years of service, from the date of 1st higher pay scale, in accordance with the government resolution dated 02.07.2007. Accordingly, the school sent proposal to the respondent no.2 for 2nd higher pay scale. The respondent no.2 returned the said proposal with objection to the school vide letter dated 07.11.2016. By letter dated 05.10.2016, the respondent no.3 asked the respondent no.2 to initiate the recovery from the petitioner of excess payment, on the ground that the 1st higher pay scale of Rs.5000-8000 was wrongly granted to the petitioner. The said communication is duly produced at Annexure-C.

2.3. The aforesaid recovery from the petitioner of excess payment, which was granted on 20.02.1999, was effected by communication dated 05.10.2016. The respondent – school orally informed the petitioner that recovery would be affected from June, 2017.

2.4. In light of the aforesaid, petitioner herein has approached this Court, invoking Article- 226 of the Constitution of India, being aggrieved and dissatisfied by the said communication, seeking recovery from the petitioner, which is duly produced at Annexure-C, and has prayed for the following reliefs:

“(A) Quashing and setting the letter dated 05.10.2016 passed by the respondent no.3 ordering recovery from the petitioner and further directing the respondents not to affect any recovery of excess payment and further directing them not to disturb pay scale of the petitioner.

(B) During the pendency and final disposal of this petition, the respondents may be directed not to affect recovery from the petitioner.

(C) To grant such and further relief as may be deemed fit and proper.”

3.1. Mr. Samir B. Gohil, learned advocate appearing for the petitioner submits that, the petitioner herein is a Class-III employee and places reliance on the ratio laid down by the Hon’ble Apex Court in the case of State of Punjab & Ors. vs. Rafiq Masih, reported in 2015 (4) SCC 334, wherein, the Hon’ble Apex Court has held that recovery of excess amount / payment made to the Class-III employee is not permissible.

3.2. Mr. Samir B. Gohil, learned advocate, also placed reliance on Rule-28(2) of the Gujarat Civil Services (Pay) Rules, 2002, wherein, the said Rules states that no recovery can be made, if there is no fraud or misrepresentation on the part of the employee.

3.3. Placing reliance on the aforesaid submissions, it is submitted that, the petitioner was granted 1st higher pay scale of Rs.5000-8000 as per the government resolution dated 02.07.2007. The petitioner has neither made any fraud or misrepresentation, and in view thereof, the petitioner herein is governed by the Rule-28(2) of the Gujarat Civil Services (Pay) Rules, 2002. It is submitted that, the impugned communication is also in gross violation of the principles of natural justice, wherein, while issuing the impugned communication, no opportunity of hearing is granted to the petitioner herein, though, the petitioner is adversely affected by the impugned order of recovery dated 05.10.2016.

3.4. Placing reliance on the aforesaid, it is submitted that, the impugned order dated 05.10.2016 of recovery is required to be quashed and set aside.

4.1. Per contra, Ms. Pooja Ashar, learned Assistant Government Pleader appearing for the respondent – State, relied on the affidavit in reply filed by the respondent – authorities, which is duly produced at Page-28 and placing reliance on the contentions raised in the said reply, more particularly, para-6 of the said reply, it is submitted t