DILIPKUMAR HARILAL BHAVSAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Learned AGP, Mr. Shivang Shukla has appeared on advance copy and the petition was taken up for final hearing. The petitioner has invoked Articles 14 and 226 of the Constitution upon being aggrieved by the order for recovery of excess payment made to the petitioner since April 2000 on account of the advance increments, which were withdrawn by resolution dated 26.4.2000. There is no dispute about the facts that the petitioner was granted advance increments on account of his higher qualification and such orders granting advance increments were cancelled by Resolution dated 26.4.2000 (Annexure-B), after examining the scheme of advance increments and upon revised pay structure coming into operation. While making the resolution dated 26.4.2000, the State Government also directed not to recover any amounts, which were already paid till then on account of grant of advance increments.

(2.) There is no manner of doubt that the petitioner, a highly qualified medical doctor, appointed on Class-II post could have misunderstood the implications of resolution dated 26.4.2000. However, due to reasons which are not clear, the petitioner was paid wages disregarding the aforesaid Government Resolution and the matter came to a head when it was referred to the highest office of Commissioner, Medical Services and Medical Education. It is unfortunate that the department in which the petitioner was serving took eight years in implementing aforesaid resolution on account of some confusion or manipulation, but such sustained default on the part of the administration cannot confer any right upon the petitioner, who could not be ignorant about his rights and change in the pay structure. He was in fact informed in writing by order dated 25.07.2000 (Annexure-C to the petition) about requisite process of recovery. Under such circumstances, learned counsel, Mr.Majmudar resorted to the technical plea of petitioner having not been given an opportunity of being heard and the difficulties, which the petitioner may have to face if recovery were to be enforced. Therefore, he was called upon to explain the prejudice caused to the petitioner on account of alleged absence of opportunity of being heard. However, he only submitted that the petitioner was entitled to retain the benefit, which was allowed to him without any fault or misrepresentation on his part.

(3.) Learned counsel, Mr.Majmudar and learned AGP, Mr.Shukla both relied upon the observations of three Judge Bench of the Supreme Court in Syed Abdul Qadir and Others v. State of Bihar and Others [(2009) 3 SCC 475], wherein pertinent observations read as under: