DV PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BOTH the petitioners were appointed as Vaidyas in the Government Dispensary in the State of Bhavnagar in the year 1951 and upon formation of the State of Saurashtra, the petitioners were absorbed as employees of the State of Saurashtra. Upon merger of the Saurashtra State in the bilingual State of Bombay, the petitioners were allocated as Vaidyas to the bilingual State of Bombay. Thereafter, upon formation of the State of Gujarat, the petitioners were allocated as Vaidyas to the State of Gujarat. On the introduction of Panchayat Raj, the petitioners were allocated to the service of the Rajkot District Panchayat. Petitioner No. 1 Shri D. V. Patel retired on 31. 12. 1987 and petitioner No. 2 Shri R. S. Vaishnav retired on 31. 10. 1988.

(2.) DURING the course of their service, by order dated 28. 04. 1969 of the Rajkot District Panchayat in the Ayurved Branch, the petitioners were placed in the pay-scale of Rs. 160-370 w. e. f. 01. 11. 1965. The said pay-scale was thereafter revised to Rs. 250-480 under the Revision of Pay Rules, 1967, popularly known as Sarela Pay Scale as the pay-scale was revised pursuant to the recommendations of the Pay Commission headed by Justice Sarela. That pay-scale came to be revised to Rs. 500-900 under the Revision of Pay Rules, 1975 w. e. f. 01. 10. 1976, popularly known as Desai Pay Scale. However, by order dated 25th November/20th December, 1982 (Annexure-L) of the District Development Officer, Rajkot, it was decided that the pay-scale of Rs. 160-370 was erroneously given to the petitioners, the petitioners were unqualified Vaidyas and the pay-scale of Rs. 160-370 was meant for qualified Vaidyas. That order was passed in respect of seven employees including the present petitioners. The said order also provided that two employees out of them viz. Shri K. T. Lehru and Shri K. N. Pandya had retired on 07. 11. 1972 and 19. 09. 1974 respectively and that their pension had already been fixed in the higher pay-scale. Therefore, any recovery from the salary paid to the said officers will be made after obtaining approval of the Government. But the pay-scale of the other five employees be fixed in the lower scale of Rs. 100-170 w. e. f. 01. 11. 1965 and upon revision in the Sarela Commission, pay-scale of Rs. 135-270 and upon further revision in the Desai Commission, pay-scale of Rs. 350-600

(3.) FROM one of the remaining five employees Shri H. N. Upadhyaya filed Special Civil Application No. 6728 of 1986 challenging the aforesaid order dated 25th November/20th December, 1982. The learned single Judge noted that the said petitioner was treated as a qualified Vaidya from 1st January, 1965 till 25th November 1982 and his pay was accordingly fixed. He enjoyed those benefits for all these years without any objection and he retired on 29th February 1976. The Court held that a person who was treated to be a qualified Vaidya for more than 13 years and was allowed to be retired as a qualified Vaidya, then merely on the ground of some error or mistake recovery cannot be made of the alleged excess payment. It was further held that even if it was a case of error ( the petitioner's contention was that there was no error), such an error had to be corrected within a reasonable time. The Court did not decide the question whether the petitioner was required to be treated as a qualified Vaidya or an unqualified Vaidya and held as under: