Telangana High Court
V.Narender Reddy vs The State Of Telangana on 10 July, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P(TR).NO. 6298 of 2017
ORDER:
In this writ petition, the petitioner is challenging the action of the respondent No.2 in issuing Orders in C.No.554/A3/GHs/Incr/2016 and C.No.P1-847/GHs/TS/ 2016, dated 23.06.2016 and D.O.No.555/2016, dated 10.08.2016 respectively for recovery of excess of Pay and Allowance paid to the petitioner from his salary for the periods from 10.11.2008 (AN) to 24.05.2016 (AN) and 01.12.2009 to 30.06.2016 as illegal, arbitrary, unjust, and unconstitutional and in violation of principles of natural justice and to pass such other order or orders in the interest of justice.
2. Brief facts leading to the filing of the present writ petition are that the petitioner was initially appointed as an Assistant Cook on 13.12.1989 in the office of Deputy Inspector General of Police, Greyhounds, Hyderabad, and he was promoted to the post of Record Assistant on 21.12.1994 and was temporarily promoted as a Typist vide orders dated 2 TMD,J W.P(Tr).No.6298 of 2017 07.11.2008 subject to his fulfillment of certain conditions and one of the conditions was to acquire Typewriting Telugu Higher and English Typewriting Higher Qualification within the period of probation. However, the petitioner could not secure the Telugu Typewriting Higher qualification within the above mentioned period and therefore, he submitted representations dated 08.07.2011, 02.12.2014, 15.06.2015, 04.03.2016 and 16.04.2016 for conversion of his post of Typist to the post of Junior Assistant as he was fully qualified for the same and the posts of Junior Assistant were available. The respondent No.2 vide orders dated 12.05.2016, reverted the petitioner from the post of Typist to the post of Record Assistant and vide orders dated 25.05.2016 the petitioner was appointed by transfer to the post of Junior Assistant. Thereafter, the petitioner has worked as Junior Assistant. The respondents thereafter, computed the excess of pay and allowance paid to the petitioner in the post of Typist from the date of his promotion as Typist till the date of reversion and have sought to recover the same from the petitioner and at this juncture the petitioner has approached the Tribunal by filing the O.A., and the Tribunal had granted interim stay of 3 TMD,J W.P(Tr).No.6298 of 2017 recovery. After abolition of the Tribunal, the case has been transferred to High Court and numbered as W.P(Tr).No.6298 of 2017.
3. Learned counsel for the petitioner submits that the petitioner is a third class employee and therefore, no recovery of salary paid can be made even if it was an excess payment. She placed reliance upon the judgment of the Hon'ble Supreme Court in the case of State Of Punjab & Others Vs. Rafiq Masih 1 and submitted that the petitioner was always eligible for the post of Junior Assistant and since the petitioner has made representations, the respondents ought to have converted him to the post of Junior Assistant. She further submitted that the petitioner possessed the necessary qualifications of English Typewriting lower as well as higher and has performed and discharged his duties as a Typist without any complaint and therefore, the payment made for the said services should not be recovered.
4. Learned Government Pleader for Home, on the other hand, supported the impugned orders and submitted 1 AIR 2015 SC 696 4 TMD,J W.P(Tr).No.6298 of 2017 that the appointment to the post of Typist was subject to the fulfillment of conditions i.e., acquiring necessary qualifications and since the petitioner failed to acquire the necessary qualification, he had to be reverted to the post of Record Assistant. He submitted that the petitioner was very much in service and since he did not fulfill the condition of appointment the recovery was sought to be made and therefore, judgment of the Hon'ble Supreme Court in the case of Rafiq Masih (cited supra) is not applicable to the present facts of the case.
5. Having regard to the rival contentions and the material on record, this Court finds that the petitioner worked as a Typist on temporary promotion subject to fulfillment of certain conditions. Admittedly, the petitioner worked as a Typist but never acquired the necessary qualification and therefore, he had to be reverted to the post of Record Assistant. The undisputed fact is also that the petitioner possessed necessary qualification for the post of Junior Assistant and had made a representation 08.07.2011 for conversion to the post of Junior Assistant as he has not 5 TMD,J W.P(Tr).No.6298 of 2017 been able to acquire the necessary qualification. Therefore, this Court is of the opinion that the reliance of the learned counsel for the petitioner on the judgment of the Hon'ble Supreme Court in the case of Rafiq Masih (cited supra) is misplaced. The said judgment is in respect of recovery sought to be made after retirement of an employee and the anomaly of excess payment was not attributable to the employee. It was also in respect of the incident which has happened four years prior to date of retirement. The facts being distinguishable, the said judgment is not applicable to this case. Since the petitioner did not fulfill the conditions, he had to be reverted to the post of Record Assistant. However, since he had discharged his duties as a Typist and also possessed the necessary qualification for the post of Junior Assistant, this Court deems it fit and proper to direct the respondents to consider the appointment by transfer of petitioner as Junior Assistant from the date on which the post of Junior Assistant is available, after the petitioner has made a representation dated 08.07.2011. Since the pay scale of Typist as well as Junior Assistant is the same, the amount of excess pay and allowance in the cadre of Typist from the date of his 6 TMD,J W.P(Tr).No.6298 of 2017 promotion till the date of such conversion as Junior Assistant only shall be recovered. The respondents shall take a decision of recovery only after passing the orders of conversion to the post of Junior Assistant with effect from the date of availability of the post of Junior Assistant as observed above.
6. Accordingly, the writ petition is partly allowed. There shall be no order as to costs.
7. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Date: 10.07.2024 bak