SANGEETA PRADIPBHAI DESAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate Writ, direction and/or order quashing and setting aside impugned Office Order dated 21. 09. 2004 issued by respondent No. 2 whereby the petitioner has been reverted to the pay scale of Rs. 1400 2600/- from the pay scale of Rs. 1640-60-2600-EB- 75 2900 with effect from 29. 07. 1990. It is also further prayed for an appropriate direction holding that respondents are not entitled to recover any amount from the petitioner pursuant to the aforesaid Office Order dated 21. 09. 2004.

(2.) TODAY when the matter is taken up for final hearing, Mr. Joshi, learned Advocate for the petitioner under the instructions from the petitioner does not press prayer in terms of para 9 (A) i. e. quashing and setting aside Office Order dated 21. 09. 2004 issued by respondent No. 2 so far as it relates to reverting the petitioner in the scale of pay scale of Rs. 1400 2600/ -. However, he has requested to consider prayer in terms of 9 (B) i. e. recovery aspect by submitting that assuming that the petitioner was not entitled in the pay scale of Rs. 1640-60-2600-EB-75 2900/-, still the petitioner was paid the aforesaid salary by mistake and nothing is alleged that the petitioner was paid salary in the aforesaid pay scale due to misrepresentation on the part of the petitioner.

(3.) IT is submitted by the learned Advocate for the petitioner that it was the mistake on the part of the department in wrong fixation and the petitioner was not at all responsible for such a mistake, and therefore, as held by the Hon'ble Supreme Court in the case of SHYAM BABU VERMA AND OTHERS VS. UNION OF INDIA AND OTHERS reported in (1994) 2 SCC 521; SAHIB RAM VS. STATE OF HARYANA AND OTHERS reported in 1995 Supp (1) SCC 18; unreported judgment of Division Bench of this Court in the case of I. C. PATEL VS. GUJARAT HOUSING BOARD dated 4. 4. 2001 in LPA No. 578 of 2002 in SCA No. 2196 of 1999 and the decision of the Hon'ble Supreme Court in the case of PURSHOTTAM LAL DAS AND OTHERS VS. THE STATE OF BIHAR AND OTHERS reported in 2006 AIR SCW 5325 and another decision in the case of COL. B. J. AKKARA (RETD.) VS. GOVERNMENT OF INDIA AND OTHERS reported in (2007) 1 SCC (Lands) 529, the impugned order passed by the department to recover the aforesaid amount deserves to be quashed and set aside.