R N PRAJAPATI Vs. STATE OF GUJARAT

JUDGEMENT

(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.