WRIT PETITION 7863 of 2022 on 1 February 1987

ORDER:

Heard Ms. Avanija Inuganti, learned counsel for the petitioner andlearned Government Pleader for ServicesII.

2. It is stated that the petitioner was initially appointed[as][ N.M.R.]workeron01.02.1982.Thereafter,he was convertedas Work ChargedEstablishment as Mazdoor with effect from 01.02.1987 vide the proceedingsof therespondent dated 30.04.1987.Thereafter,he[was]retiredfromservice on attaining superannuation on 30.06.2021 as an[ Assistant] Engineerafterregularpromotionsinbetween.Whilepreparingthepension

proposals,the respondents pointed out thatat the timeof conversion fromMazdoor to Work Inspector Grade-IV in the scale of Rs. 1595-3020 with effectfrom 21.10.1993, the petitioner was allowed pay protection at Rs.1665/-.ThesaidprotectionwascontinuedevenafterhehadoptedtobecomeGovernmentservant.The4*'' respondent pointing out the same,videimpugned proceedings, orderedfor recoveryof the excesspaytothepetitioner with effect from 21.10.1993 to 30.06.2021.Hence, the instant writpetition.

3. It is contended by the learned counsel for the petitioner that thepay of the petitioner was fixed on 21.10.1993 while converting from Mazdoorto Work Inspector Grade-IV.The same is now sought to be modified after27 years.Itis further contended thatitis not within the jurisdiction of therespondents io revise the orders passed after lapse of 27 years, without anynotice to the petitioner.Itis further argued thatitis not the case of therespondents that the alleged excess payment was madeonaccountofmisrepresentation made by the petitioner.In the said process of pay fixation,the petitioner was not at his behest.Accordingly, sought for set aside of theimpugned proceedings.

4. Respondents filed counter affidavit stating that thepetitioner’spromotion took place prior to that datei.e., on 21.10.1993,granting payprotection to the petitioner under FR 22 (a) (i) read with FR 22B is not in termsof the Government Memo No.22029/Ser.V2/93-2, dated 28.08.1993.Itiscontended that if the petitioner was promoted after 03.02.1997, then heis eligible for such benefits.By that time of this pay fixation as Work inspectorGrade-iV, the petitioner was working in Work Charged[Establishment][ Cadre]for which the Executive Engineer at divisionlevel was competent to issuesuch orders.It is further contended that the discrepancy[was][ carried][ forward]throughout his service at division level as the individual[continued]in WorkCharged Establishment Cadre up to 20.04.2016.It is[further][ stated][ that][ the]recovery on account of erroneous pay fixation had been[mounted][ by][ the][ time]of his retirement.It is further contended that although the discrepancy couldnot beattributedto thepetitioner, the4^^ respondentactingwithinhisjurisdiction sought to rectify the discrepancy by ordering[for][ recovery][ of][ excess]payment.It is further stated that the petitioner is[willing][ to][ remit][ the][ excess]payment, no due certificate would be issued along with[pension][ proposals,]without proposing any recovery from the gratuity.

5. The learned counsel for the petitioner relying on the[decision][ of]the Hon’ble Apex Court in the case of Syed Abdul Qadir[and][ Others][ Vs.]State of Biharand Others, submits that unless excess[payment][ was][ on]account of misrepresentation or fraud played by the[employee][ and][ the][ same]the Hon’ble Apex Court in the case of Syed Abdul Qadir[and][ Others][ Vs.]State of Biharand Others, submits that unless excess[payment][ was][ on]account of misrepresentation or fraud played by the[employee][ and][ the][ same]was onaccount of application of wrong principle by the employer[in][ calculating]the pay and allowances, the employees shall not be[put][ to][ hardship.]Thelearned counsel further refers to the decision of the[Hon’ble][ Apex][ Court][ in][ the]the pay and allowances, the employees shall not be[put][ to][ hardship.]Thelearned counsel further refers to the decision of the[Hon’ble][ Apex][ Court][ in][ the]caseof State of Punjab and Others Vs. Rafiq Masih (white[washer)][ and]Others, wherein the Hon’ble Apex Court has observed[as][ follows:]Others, wherein the Hon’ble Apex Court has observed[as][ follows:]

18. !t IS not possible to postulate all situations of hardshipwhich would govern employees on the issue of recovery, where paymentshavemistakenly been madebytheemploye,rinexcessoftheirentitlement.Bethat asit may, based onthe decisionsreferredtohereinabove, we ma,y as a ready reference, summarise the following fewsituations, wherein recoveries by the employers, would be impermissiblein law:which would govern employees on the issue of recovery, where paymentshavemistakenly been madebytheemploye,rinexcessoftheirentitlement.Bethat asit may, based onthe decisionsreferredtohereinabove, we ma,y as a ready reference, summarise the following fewsituations, wherein recoveries by the employers, would be impermissiblein law:

(i) Recovery from the employees belonging to Class III and ClassIV service (or Group C and Group D service),

(ii) Recovery from the retired employees, or the employees[who]are due to retire within one yea,r of the order of recovery.

(Hi) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before[ the]order of recovery is issued. ”

Placing reliance of the above, the petitioner sought set aside of the impugnedproceedings.

6. Considered the rival submissions.

7. From the counter affidavit of the respondents,it is discernible thatthe impugned proceedings for recovery have been effected on account of theerroneous actions on the part of the respondents.Itis admitted by therespondents that the discrepancy can not be attributed to the petitioner.It isfurther stated that the discrepancy had taken place in 1993 and continuedupto 20.04.2016.In the said context, the Hon’ble Apex Court in the case ofState of Punjab and others Vs. Raffiq Masih (white washer), has observedthat in case of recovery from an employee where an excess payment hasbeen continuously made for a period of more than five years, the recoverythe impugned proceedings for recovery have been effected on account of theerroneous actions on the part of the respondents.Itis admitted by therespondents that the discrepancy can not be attributed to the petitioner.It isfurther stated that the discrepancy had taken place in 1993 and continuedupto 20.04.2016.In the said context, the Hon’ble Apex Court in the case ofState of Punjab and others Vs. Raffiq Masih (white washer), has observedthat in case of recovery from an employee where an excess payment hasbeen continuously made for a period of more than five years, the recovery made by the employer is impermissible in law.Following the said principle,theorder impugned is set aside.

8. The3'^'^ respondent is directed to refund the amount,[recovered]from the Gratuity of the petitioner within a period of three (3) months from thedate of the receipt of the order.from the Gratuity of the petitioner within a period of three (3) months from thedate of the receipt of the order.

9. Withtheabove,thewritpetitionisdisposedof.There shall be no order as to costs.

As a sequel, interlocutory applications, pendingif[any,][ shall] stand closed.

Sd/- N NAGAMMA//TRUE COPY//ASSISTANTiREGISHRARSECOFFICER

To,

1. The Principal Secretary, Water Resource Department,Stateof AndhraPradesh,Secretariat, Velagapudi, Amaravathi,GunturDistrict, AndhraPradeshPradesh,Secretariat, Velagapudi, Amaravathi,GunturDistrict, AndhraPradesh

2. The Engineering Chief, Water Resources Department,GovernmentofAndhraPradesh,H.O.DBuildings Complex,M.G.Road,0pp.l.G.M.Stadium, Vijayawada, Krishna District, Andhra Pradesh.AndhraPradesh,H.O.DBuildings Complex,M.G.Road,0pp.l.G.M.Stadium, Vijayawada, Krishna District, Andhra Pradesh.

3. TheSuperintendingEngineer,TBPHLCCircle,Ananthapuramu,Ananthapuram District, Andhra Pradesh.Ananthapuram District, Andhra Pradesh.

4. TheExecutiveEngineer,M.R.C.Division, MV DamSite,Mylavaram,Kadapa District, Andhra Pradesh.Kadapa District, Andhra Pradesh.

5. One CC to Mrs. Avanija Inuganti, Advocate [OPUC]

6. Two CCs to GP for Services II, High Court of Andhra[Pradesh][ [OUT]]

7. Two CD Copies

Cnr

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HIGH COURT

DATED:28/03/2025

ORDERWP NO. 7863 OF 2022

DISPOSING OF THE W.P.WITHOUT COSTS

OI JUL 2025m«>»