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SCA/1058/2004 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1058 of 2004
With
CIVIL
APPLICATION No. 13169 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Sd/-
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ? 1 to
5 : NO
=========================================================
R
N PRAJAPATI & 4 - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
ALPESH RAJPURIYA for
Petitioner(s) : 1 - 5.
MS MOXA THAKKER ASSTT GOVERNMENT PLEADER
for Respondent(s) : 1 - 2.
MR AFTABHUSEN ANSARI for Respondent(s)
: 3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Date
: 01/02/2010
ORAL
JUDGMENT
1. Petitioners
are aggrieved by cancellation of the order dated 02.5.1995 by which
they were given first higher grade upon continuation of service on
the same post for nine years. According to the impugned order, the
aforesaid order dated 02.5.1995 was cancelled in view of respondent
No.3 being granted higher pay scale of the promotional post of
Assistant Superintendent. It was submitted for the petitioners that,
even as the petitioners were serving as Agricultural Overseers and
had served for more than nine years, they were given higher pay scale
by order dated 02.5.1995 and the wages were accordingly drawn
without any fault or misrepresentation on the part of petitioners.
Thereafter, it was realized that the petitioners were eligible for
promotion to higher post and they were promoted to the higher post
of Assistant Superintendent in 2005 . It was, however, submitted by
learned A.G.P. that the petitioners could not have been granted
higher pay scale in 1995 as there were promotional avenues from the
post of Overseer to Assistant Superintendent and from Assistant
Superintendent to Technical officer.
2. Having
regard to the provisions of Rule 28 of the Gujarat Civil Service
(Pension) Rules and recent judgment of the Supreme Court in Syed
Abdul Qadir v. State of Bihar [(2009)
3 SCC 475], learned counsel for the petitioners
submitted that recovery of the payments made prior to the impugned
order dated 29.11.2002 could not be effected and the petitioners
would have no objection to recovery of the amounts paid in excess
after the said order, even as the petitioners have been promoted in
due course in the year 2005.
3. Therefore,
upon the above limited consensus and the statement made on behalf of
the petitioner, the petition is partly allowed with the direction
that no recovery shall be made pursuant to cancellation of the order
dated 02.5.1995 by the impugned order dated 29.11.2002. However, the
payments made in excess after the aforesaid order dated 29.11.2002,
under interim order of this Court or otherwise, shall be recovered
from the petitioners or adjusted against any payment being made or to
be made to the petitioners. Rule is made absolute accordingly with no
order as to costs. Civil Application does not survive in view of
disposal of the petition and accordingly it stands disposed.
Sd/-
(
D.H.Waghela, J.)
(KMG
Thilake)
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