Dhirubhai Naranbhai Patel J.

1. Notice upon respondent.

2. Counsel Mr. Prem Pujari Roy waives Notice upon the respondent.

I.A. No. 7537 of 2016

3. Present interlocutory application has been preferred under section 5 of the Limitation Act, 1963, for condonation of delay of 104 days in preferring this Letters Patent Appeal.

4. Having heard counsel appearing for the both sides and looking to the reasons stated in the interlocutory application, it appears that there are reasonable grounds for condonation of delay.

5. In view of these facts, we hereby, condone the delay in preferring this Letters Patent Appeal. Accordingly. I.A. No. 7537 of 2016 is allowed and disposed of.

L.P.A. No. 541 of 2016

6. This Letters Patent Appeal has been preferred by the original respondent. The present respondent is the original petitioner who has preferred W.P.(S) No. 4205 of 2013 challenging the order passed by the State on 17th December, 2012, whereby the appointment of respondent on the post of Steno-Typist was declared as illegal and the respondent was treated as Typist. There are consequential order also dated 24th December, 2012 for the recovery of the excess amount paid as salary for the post of Steno Typist.

7. Having heard counsel appearing for both sides and looking to the facts and circumstances of the case, it appears that the respondent was appointed on 9th July, 1974 on the post of Typist. He joined duty on 12th July, 1974.

8. Thereafter, he was appointed on the post of Stenographer on 13th December, 1978. This was a fresh appointment as submitted by counsel appearing for the respondent (original petitioner).

9. It appears that from 1978 onwards for several decades never any objection was raised by the so called Vigilant appellants.

10. Respondent was working diligently, honestly. sincerely and to the satisfaction of the appellants. Never any objection was raised by the appellants for wrongful appointment of the respondent on the post of Stenographer.

11. Now, when the respondent (original petitioner) was on the verge of retirement in the year 2014, in the month of December, 2012, abruptly, without holding any enquiry and without giving any effective opportunity of being heard to the respondents appellants (declared that the respondent (original petitioner) was wrongly appointed as a Stenographer in the year 1978.

This is not permissible in the eye of law. When any employee has worked as a Stenographer for several decades and never any objection was raised by the appellants for approximately three decades, without holding any enquiry his appointment cannot be suo-motu declared by the appellant as illegal.

This aspect of the matter was properly appreciated by the learned Single Judge while deciding W.P.(S) No. 4205 of 2013 vide judgment and order dated 29th June, 2016.

12. So far as recovery of the excess amount is concerned, the said order dated 24th December, 2012, which is a consequential order of the order dated 17th December, 2012 is also de-hors the several directions given by the Hon'ble Supreme Court, more particularly in following decisions.

13. It has been held by Hon'ble the Supreme Court in the case of Sahib Ram v. State of Haryana reported in 1995 supp (1) SCC 18 as under:

"5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant."

(Emphasis supplied)

14. It has been held by Hon'ble the Supreme Court in case of Shyam Babu Verma v. Union of India reported in (1994) 2