IMPORTANT POINT
Recovery from Class-III employees or those nearing retirement is impermissible under the principles established by the Supreme Court, as reaffirmed in the judgment.

JUDGMENT :

Nirzar S. Desai, J.

1. Heard learned advocate Ms. Dhruvi Desai for learned advocate Ms. Harshal N. Pandya appearing for the petitioner and learned Assistant Government Pleader Mr. Sanjay Udhwani appearing for the respondent – State Government.

2. With the consent of learned advocates appearing for the respective parties, the matter was taken up for final hearing. Hence, issue RULE. Learned Assistant Government Pleader Mr. Sanjay Udhwani waives service of rule on behalf of respondent - State Government.

3. By way of this petition, the petitioner has prayed for quashing and setting aside the order dated 15.3.2022 and 25.3.2022 whereby a recovery of Rs.1,36,544/- was ordered against the present petitioner as he could not clear the departmental examination within prescribed three attempts and he was put back to the original pay scale of Rs.5200-20200, Grade pay 1900.

4. The petitioner has also prayed for refund of the amount of Rs.1,36,544/- with interest and to consider the case of the petitioner for higher pay scale from the date of examination i.e.20.12.2018 and not from 30.5.2019 i.e. date of result of the examination.

5. The facts of the petition as stated by learned advocate Ms. Dhruvi Desai are stated as under:-

6. The present petitioner joined the services under the respondent as a Clerk after due selection process in the year 2000 in the pay scale of 3050-4590. He has also cleared the departmental examination for being confirmed as Junior Clerk and CCC examination. The requirement for being promoted as Senior Clerk was to clear a departmental examination, in which petitioner appeared between 1.5.2006 and 4.5.2006 which was conducted by the Gujarat State Subordinate Service Selection Board but could not clear the aforesaid examination. In that examination in the papers wherein the petitioner could secure more than 60% made him eligible to claim exemption in those subjects. However, thereafter for quite long, the examination was not conducted by the authorities till 2016 and the petitioner had to remain in the same pay scale for almost 15 years and therefore, he preferred a Special Civil Application No.5262 of 2015 before this Court which was allowed by order dated 6.8.2015 whereby the Government was directed to consider the case of the petitioners for promotion to the post of Senior Clerk or higher pay scale subject to passing of departmental examination.

7. The respondent acted upon the order dated 6.8.2015 passed by this Court in Special Civil Application No.5262 of 2015 and granted benefit of higher pay scale to the petitioner on 26.10.2015 by placing the petitioner in the pay scale of Rs.5200-20200, 2400/- from his due date i.e. 27.12.2012.

8. Ultimately, the departmental examination was held after ten years between 18.7.2016 to 22.7.2016. However, the petitioner could not clear the examination in the year 2016, 2017 i.e. within the three attempts (including an attempt made in the year 2006) within which the petitioner was to clear the departmental examination to claim the higher pay scale.

9. As the petitioner could not clear the examination in three attempts, vide order dated 21.7.2018, the petitioner was placed in the original pay scale of Rs.5200-20200, Rs.1900/- grade pay with effect from 15.1.2013. However, thereafter the petitioner cleared the examination in the 4th attempt on 30.5.2019.

10. The petitioner was about to retire on 31.3.2022 and therefore, while preparing his pension papers, some correspondence between petitioner and respondent took place. Ultimately, vide order dated 25.3.2022, a recovery of Rs.1,36,544/- was imposed upon the petitioner which according to learned advocate Ms. Dhruvi Desai, the petitioner has already paid and therefore, by way of this petition, the petitioner has prayed for refund of the aforesaid amount along with other prayers which are already incorporated in the foregoing paragraphs.

11. Ultimately, the petitioner superannuated on 31.3.2022 and thereafter, has preferred this pet