DISTRICT EDUCATION OFFICER Vs. R D KANERIA

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The petitioners - District Education Officer and Audit Officer, challenge the order made by the Gujarat Secondary Education Tribunal, Ahmedabad dtd. 24th November, 1998, passed in Application NO.8 of 1995 filed by Mr. R.B. Kaneria - respondent NO.1.

(3.) The facts which led to this litigation are that the respondent NO.1 was appointed as Assistant Teacher on 17/6/68 and was promoted as Head Master with the respondent No.2 on 18/6/73. At that time the Pay Scale recommended by Sarela Commission was in force and the salary of respondent NO. 1 was accordingly fixed under that Pay Scale. For the Head Masters, the Commission has recommended for payment of additional amount of Rs.75/to Rs.100/- p.m., depending upon number of students of the institution and this was in addition to basic pay. The petitioner was receiving that amount from the date of his promotion. In 1976, the recommendations of Desai Commission were accepted by the State of Gujarat w.e.f. 1/1/73 which came to be applicable to the respondent No.1 and accordingly the Pay Scale of the respondent NO.1 was fixed as per Desai Pay Scale as revised pay scale corresponding to the Sarela Pay Scale w.e.f. 1/1/76. For the period between 17/6/68 to 17/6/73 his salary was revised in the pay scale applicable to Assistant Teacher and with effect from 18/6/73 in the pay scale applicable to Head Master under the Desai Scale. However, this exercise of transition from Sarela Pay Scale to Desai Pay Scale took place by taking into account basic pay only, payable under the respective scales. On this transition, the benefits of Rs. 75.00 in addition to basic pay were not given effect to, as the Desai Pay commission did not recommend for payment of additional allowance. However, it appears that on the representations made by the teachers, on 17/9/89 the Government accepted the demand and resolved the case of Heads Masters and Teachers for the purpose of fixing the revised pay scale in Desai Pay Scale from Sarela Pay Scale the additional allowance of Rs.75.00 or Rs.100.00 as the case may be, payable to Headmasters was decided to be included in the basic pay payable under the Sarela Pay Scale and corresponding advantage to be given in the fixation under the Desai Pay Scale. As a result, the respondent No.1 continued to draw benefit of Rs.75 until his retirment dtd. 31/12/92. While fixing retiral benefits, an objection was raised by the audit department that as the petitioners' pay was already fixed in Desai Pay Scale w.e.f. 1/1/73, the petitioner was given benefit of Desai Pay Scale on promotion and the amount of allowance payable under Sarela Scale, could not be included in addition thereto and directed recovery of Rs.43,396.00 against gratuity and other amount payable to the respondent on account of alleged excess payment of Rs.75.00 p.m. since 1973. This order of recovery was challenged by the respondent NO.1 before the Gujarat Secondary Educational Tribunal who by its order dtd. 24/11/98 has upheld the contention of the respondent NO.1 and over-for the objections made by the audit officer and ordered not to make any recovery on that count. The retiral benefits were directed to be released. the said order of the Tribunal is challenged in this petition.