SARDAR PATEL VINAY MANDIR Vs. GOVT OF GUJARAT

JUDGEMENT

(1.) 1. Short facts of the case appear to be that the petitioner is running Higher Secondary School and there was vacancy of one-half teachers as per the strength of the students with the availability of the teachers. Therefore, on 29. 9. 1976, the proposal was forwarded by the petitioner to the District Education Officer to allot one-half or one teachers. Since the requirement was thereof one teachers, the District Education Officer after examining the proposal, passed an order on 15. 11. 1976 for allotment of one teachers Mr. V. R. Joshi and thereafter Kumari I. C. Patel. It appears that those teachers actually worked on the post in the petitioner school and as the grant was admissible, they have been paid the salary for the period during which they have worked. After a period of about 10 years, on account of some audit objection, the matter came to be considered by the District Education Officer for effecting recovery of the half salary of the teachers, who were posted in the petitioner school, since as per the audit objection, admissible salary was for one-half of the teachers i. e. part-time teachers. The District Education Officer passed order for recovery of the amount, against which the petitioner preferred appeal before the Commissioner of Higher Education. The Commissioner of Higher Education after hearing the petitioner vide order dated 17. 4. 1989, found that there is no procedure for giving opportunity of hearing by the District Education Officer to the petitioner and on merits, he found that the petitioner school was not entitled to the benefits of full time teachers and was only for part-time teachers to meet with the requirement and one-half teachers was to be posted and as the same was not properly undertaken by the District Education Officer, the posting of the one full time teachers and the salary of the said teachers was not permissible. Therefore, he maintained the decision of recovery of the difference of the salary namely one-half salary of the teachers concerned from the admissible grant of the petitioner. The petitioner carried the matter before the State Government by making representation/appeal dated 12. 5. 1989. The State Government vide decision dated 28. 3. 1994 intimated to the petitioner that the representation is not accepted and no reasons whatsoever are mentioned in the order. It is under these circumstances, the petitioner has approached this Court by present petition.

(2.) HEARD Mr. Jasani, learned counsel for the petitioner and Mr. Vinay S. Pandya, learned Assistant Government Pleader for the State Authority.

(3.) IN the matter of recovery of the salary already paid on account of mistake or otherwise, the law is by now settled. If the employee concerned by suppressing any fact or by misguiding the authority, has taken any undue benefits of the higher pay-scale or otherwise and thereafter, it is dictated at later stage, the recovery may be effected. However, if the higher authority under the bonafide exercise of the power, sanctioned the higher pay-scale and thereafter, at the later stage, different view is taken, may be on account of audit objection or otherwise, the recovery cannot be effected for the salary already paid and it may have at the most prospective effect. The reference may be made to the decisions of this Court in the case of Khara Shamji Hirabhai Vs. Gujarat State Handicrafts And Handloom Development Corporation Ltd. reported 2001 (0) GLHEL 206381 and in the case of M. M. Patel Vs. State of Gujarat reported in 2003 (1) G. L. H. 697.