D.H.Waghela, J. - (1.) D.H.Waghela, J. Invoking Article 226 of the Constitution, the petitioner has prayed to quash the orders dated 21.2.1991 and 25.1.1995 with a direction to refund the amount of Rs.27,297.15 ps. already recovered from him, with interest @ 18%, and to revise his pension. After the first order dated 21.2.1991 cancelling the deemed date of promotion granted to the petitioner on the basis of provisional seniority list and ordering recovery from his retiral benefits, the petitioner had approached this Court by way of filing Special Civil Application No. 10572 of 1994. That petition was unconditionally withdrawn by the petitioner stating that he would like to make a representation to the Vice Chancellor of Gujarat Agricultural University raising all the points which were raised in the petition. The permission to withdraw the petition was granted with a direction to pass a speaking order on the representation of the petitioner which was proposed to be made. Thereafter, he appears to have made a detailed representation which has been decided by the second order dated 25.1.1995. Thus, in short, this is the second round of litigation on the same cause of action and for the same relief.
(2.) The relevant facts emerging from the petition and the affidavit-in-reply filed by the Assistant Registrar of the respondent- University are that the petitioner was appointed as Agricultural Assistant from 29.9.1954 and promoted as Agricultural Supervisor from 14.5.1975. He was further promoted as Agricultural Officer from 3.6.1980 in Dantiwada Zone of the University where the petitioner was posted. Provisional seniority list of all Agricultural Officers was made and published on 19.10.1981 by the Director of Campus and, on that basis, the petitioner was given deemed date of promotion to the post of Agricultural Supervisor on account of which 30.6.1972 was taken as the date of promotion, though he was actually promoted only on 14.5.1975. Thereafter, the provisional seniority list of Agricultural Officers and equivalent posts was also published on 19.7.1982 in which the petitioner was given deemed date of 29.4.1975 as the date of promotion to the post of Agricultural Officer in place of the actual date of 3.6.1980. Pursuant to such artificial advancement of date of promotion, pay fixation for the period from 27.4.1975 to 2.6.1980 was treated as notional.
(3.) It is averred on behalf of the University that giving of deemed dates in the seniority list published by the Campus Director was found to be irregular and such deemed dates were not given in the seniority lists of other Zones of the University. Therefore, the University instructed the Administrative Officer of Dantiwada Zone to cancel the deemed dates in the lists published by that Campus and, by letter dated 16.12.1983. the Campus Director was directed not to make any payment of difference of salary to the officers who were given deemed dates and, if such payments were made, they were made liable to be recovered. By that time, the petitioner was transferred to Junagadh where the Principal, Agricultural College, was instructed not to pay any arrears of difference of salary. In spite of such instructions, the petitioner was paid the difference on account of the deemed date of promotion based on provisional seniority list. However, an undertaking was taken from the petitioner to the effect that, if the amount paid to him was found to be in excess as a result of final gradation list of Agricultural Supervisor or Agricultural Officer, it may be recovered from him in suitable installments or, in the event of his retirement, the over-payment may be recovered from the amount of his pension and/or D.C.R. Gratuity or as arrears of land revenue. The petitioner had duly executed that undertaking and received the amount of over-payment. 1. Thereafter, the correct and proper seniority lists of Agricultural Officers and Agricultural Supervisors came to be published and the pay fixation of the petitioner on the basis of provisional seniority list was disapproved. The re-fixation of pay of the petitioner, on that basis, was accepted by the petitioner and never challenged. Thus, in short, the amounts paid in excess came to be recovered from the retiral dues of the petitioner in terms of his own undertaking and as a necessary consequence of cancellation of seniority lists which, in any case, were provisional and of which cancellation was never challenged by the petitioner.;