HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 23775 OF 2009
ORDER:
This Writ Petition is filed seeking a direction to respondents to alter and record in the family pension papers petitioner's date of birth as 26.11.1984 duly accepting his SSC Certificate, continue release and payment of family pension till he reaches the age of 25 years i.e. up to 25.11.2009 and consequently, refrain from initiating recovery proceedings, pursuant to the impugned proceedings dated 11.05.21009 and dated 00.08.2009 issued by the Assistant Pension Payment Officer, PPO, Motigally, Hyderabad for recovery of the alleged excess payment of Rs.27,897/- made to petitioner towards Family Pension.
2. It is stated that petitioner's father met with untimely death while serving as an Attender in the Office of the Registrar, High Court of Andhra Pradesh, Hyderabad, consequently, petitioner, who was minor at that time, was granted family pension as his mother pre-deceased his father. It is stated that according to the Rules governing grant of family pension to minors, such family pension is restricted till minor 2 family pensioner reaches the age of 25 years. Since petitioner was a minor and orphan then, pension papers were filled-in on his behalf by one of his illiterate elders, who approached the school where he was studying then and obtained bona fide certificate in order to submit the same as proof of his age along with pension papers. Thus, wrong date of birth 08.11.1982 was mentioned in that certificate and that incorrect date of birth was entered in the pension papers. Based on the wrong date of birth, the Director of State Audit authorized release of family pension restricting it till 07.11.1997 assuming the date on which he would complete 25 years of age. While so, on attaining majority, petitioner was called upon by the authorities to submit documentary proof of his age, hence, he produced original birth certificate issued by the Municipal Corporation of Hyderabad and also his SSC certificate issued by the Board of Secondary Education evidencing date of birth as 26.11.1994. However, through letter dated 11.05.2009, the Assistant Pension Payment Officer, PPO, Motigally, Hyderabad for the first time, intimated that family pension should have been given only up to 07.11.1997 but mistakenly it was released and paid till 31.08.2008, thus an amount of Rs.27,897/- was paid in excess and the same is liable to be refunded / remitted to the 3 government account forthwith, failing which legal action would be initiated. In response thereto, petitioner stated to have made the representation dated 06.07.2009 to the Directorate of Local Fund Audit, Andhra Pradesh explaining correct positon about wrong entry of date of birth in the pension papers and requesting for recording in family pension papers his date of birth as 26.11.1984 and continue release and payment of family pension till he reaches the age of 25 years i.e. 25.11.2009. The Director of State Audit addressed letter dated 03.08.2009 to the Registrar (Administration), High Court of Andhra Pradesh requesting to examine the issue and take necessary action. Thereafter, once again, in August 2009, a letter similar to the one issued on 11.05.2009 was addressed by the Assistant Pension Payment Officer to the Registrar (Administration) requesting to pass instructions to the family pensioner to remit excess paid amount of Rs.27,897/- to the government account forthwith. The same is questioned in this Writ Petition.
3. This Court while issuing rule nisi on 04.11.2009, directed stay of recovery pursuant to the impugned proceedings.
4. The 2nd respondent filed the counter-affidavit stating that petitioner was eligible for pension till his attaining the age of 25 years i.e. 07.11.2007, however, by oversight 4 pension was continuously paid up to 31.08.2008. Since petitioner was paid Rs.27,987/- in excess to his entitlement ie. up to 31.08.2008, the respondents have issued proceedings to recover the said amount vide letter dated 08/2009. In those circumstances, the respondents pray to vacate the interim order dated 04.11.2009.
5. Learned counsel for petitioner submits that it has already been settled by the Hon'ble Apex Court that salary paid in excess to an employee for no fault of his cannot be recovered, hence, the amount stated supra is not liable to be recovered from petitioner. It is submitted that despite the repeated efforts made by petitioner to convince the authorities as to his exact date of birth through verbal and written representations and despite producing authentic proof of his age, the authorities are not in a position to accept his request and grant the relief as sought for. He places reliance on the judgment in State of Punjab v. Rafiq Masih 1. In the said judgment, the Hon'ble Apex Court, where payments have mistakenly been made by the employer in excess of their entitlement, summarized few situations wherein recoveries by the employers would be impermissible. One such situation is recovery from the 1 (2015) 4 SCC 334 5 employees belonging to Class III and Class IV service (or Group C and Group D service).
6. In view of the above ruling, since the petitioner's father died while he was serving as an Attender which is Class- IV service, this Court is of the opinion that recovery is impermissible in case of petitioner.
7. Hence, without going into the merits of the matter, this Writ Petition is allowed in part, refraining the respondents from initiating recovery proceedings pursuant to the impugned proceedings dated 11.05.2009 and 00.08.2009 of the Assistant Pension Payment Officer, PPO, Motigally, Hyderabad for recovery of the alleged excess payment of Rs.27,897/- made to petitioner towards family pension. No costs.
8. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 17th October 2023 ksld