THE HONOURABLE SRI JUSTICE K.SARATH
WRIT PETITION No.5663 of 2023
ORDER:
This writ petition is filed seeking to issue a writ of Mandamus, declaring the proceedings No.800/UAD/Gaz /2023, dated 21.02.2023 of respondent No.2, as illegal, arbitrary, violative of Articles 14 and 21 of the Constitution of India and also the principles of natural justice, and by nullifying the same, to direct the respondents not to recover the excess payment.
2. Heard Learned Counsel for the petitioner and Sri Ch.Jagannatha Rao, Learned Standing Counsel for Osmania University appearing for respondent Nos.1 and 2 and Learned Government Pleader for Services-I appearing for the respondent No.3.
3. It has been contended by the petitioner that he was initially appointed as Assistant Professor in the ::2::
Department of Public Administraion, University College of Arts and Social Sciences, Osmania University, Hyderabad on 08.06.2007. After rendering considerable length of service, the petitioner was promoted as Associate Professor under Career Advancement Progression. It has further been contended by the petitioner that he has retired from service on attaining the age of superannuation on 31.12.2022, and after retirement, the respondents had issued the impugned proceedings, wherein an amount was sought to be recovered from the petitioner on the ground of wrong fixation of his pay, consequent upon an audit objection was raised by the auditors.
4. Learned Standing Counsel for the Respondent University has contended that the petitioner was erroneously extended the benefit of certain amount to which the petitioner is not entitled and the same has to be recovered from the petitioner.
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5. Learned Counsel for the petitioner would contend that the respondents are not entitled to recover the amount in question from the petitioner who has already retired from service. In support of his contention, the Learned Counsel has relied upon a judgment rendered by the Hon'ble Supreme Court in State of Punjab Vs. Rafiq Masih1 wherein the Hon'ble Supreme Court, at para-18 of the said judgment, has given certain situations where the amounts paid to the employees erroneously cannot be recovered.
Para-18 of the said judgment reads as under:
"18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarize the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).1
(2015) 4 SCC 334 ::4::
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) 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.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
6. The petitioner has retired from service in December, 2022 and after his retirement, the respondents have passed the impugned orders recovering the amounts, which is impermissible, as per the judgment of Hon'ble Supreme Court, referred to supra (1).
7. A perusal of the above said judgment would disclose that recovery from the retired employees, or the employees ::5::
who are due to retire within one year, would be impermissible in law.
8. In view of the above, the writ petition is disposed of and the impugned proceedings, dated 21.02.2023 is set aside. No order as to costs.
9. Pending miscellaneous applications, if any, shall stand closed in consequence.
_____________________ JUSTICE K.SARATH Dated:28.02.2023.
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