A.Rama Krishna vs State Of Andhra Pradesh
2022 Latest Caselaw 9566 AP

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          THE HON'BLE DR.JUSTICE K. MANMADHA RAO

                 WRIT PETITION (A.T) No.353 of 2021

ORDER:

This Writ Petition is filed, seeking the following relief:

".....to issue a Writ, Order or direction to declare the orders passed by the 2nd respondent in No.Engg.Estt.187512004, dated 19.09.2016 and the consequential orders passed by the 3rd respondent in No. 9039 2015 SAIPRC 2010 15IEE M VJA, DATED 05.10.2016 revising the pay scales of the petitioner under RPS 2010 and 2015 in the category of Assistant Engineer and Assistant Executive Engineer and the orders passed by the 3rd respondent in No. 9039 2015 SA Pay fixation IEE AM VJA, dated 05.10.2016 affecting recovery of Rs. 14,20,047/- and deducting an amount of Rs. 3,56,710/- from the share of CPS and showing balance amount of Rs. 10,63,337/- is due to be paid within 100 days in the last pay certificate issued by the 3rd respondent in Roc.No. 9039 2015 SAIEE AM VJA, dated 05.10.2016 is illegal, arbitrary and in violation of Articles 14, 19 and 300-A of the Constitution of India and in utter violation of the principles of natural justice and contrary to law laid down by the Hon'ble Supreme Court reported in 1994(2) SCC 521, 1967 SC 1269 and 2015(4) SCC 334 and consequently declare that the respondents cannot effect any recovery from the petitioner duly repaying the recovered amount of Rs. 3,56,710/- to the petitioner and pass such other orders."

2. Heard Mr. P.V.Ramana, learned counsel for the petitioner

and learned Government Pleader, Services-I for the respondents.

3. The brief facts of the case are that initially the petitioner

appointed as Engineer Trainee in A.P Heavy Machinery Limited on

28.06.1989 and as per G.O.Ms.No.187, dated 22.07.2009 the

petitioner was permanently absorbed in the vacancy of Assistant

Engineer. The petitioner joined on 25.07.2009, since then he is

continuing. Subsequently the 2nd respondent issued orders on

05.03.2010 granting Pay Scales of the petitioner in the Revised Pay

Scales of 2005 in the pay scale of Rs. 7770-18575 with effect from

25.07.2009. Similarly an order was passed by the Executive

Engineer on 02.04.2011 fixing his pay in the said category in RPS

2005 in the pay scale of Rs. 15025 + PP 185. On 06.02.2016 the

pay of the petitioner in the category of Assistant Executive

Engineer with effect from 03.08.2011 in the time scale of Rs.

15,280-40510 under RPS 2010. While fixing the pay 3rd

respondent submitted to the 2nd respondent for ratification and

passing necessary orders. The 2nd respondent issued a Memo

dated 19.09.2016 stating that "the pay of the applicant shall be

allowed in RPS 2010 only with effect from his date of absorption i.e

w.e.f 25.07.2009 as Assistant Engineer in the pay scale 13660-

38570 Agricultural Marketing Department w.e.f 03.08.2011 as

Assistant Executive Engineer in pay scale of 15280-40510 as per

the instructions of Government issued vide Memo No.

AGST/179/2015-SO (Mktg-I) AGRSECT, dated 19.10.2015"

"The application of RPS 2005 to the individuals who is

absorbed after implementation of RPS 2010 which is implemented

w.e.f 01.07.2008 is not in accordance with the Government and this

office instructions issued in the reference 2nd and 3rd cited".

Pursuant to the order of the 2nd respondent, the 3rd

respondent issued orders dated 05.10.2016 revising the pay scales

of 2010 and 2015 in the category of Assistant Engineer and

Assistant Executive Engineer duly revising the earlier orders dated

05.02.2016 and 06.02.2016 and thereby, his entire pay was

reduced and on the same day consequential order was passed

affecting recovery of amount paid under earlier fixation to the

petitioner treating the said amount as Rs. 14,20,047/- as excess

payment and further directed to repay the balance amount of Rs.

10,63,337/- within 100 days, which is illegal and arbitrary. Hence

inaction of the respondents is questioned in the writ petition.

4. Per contra, the respondents 1 and 2 filed counter denying

all material averments made in the writ affidavit and mainly

contended that the petitioner was absorbed as a permanent

employee with effect from 25.07.2009 A.N. The petitioner

submitted an application dated 20.01.2016 requesting the 3rd

respondent to re-fix his pay in PRC-2010. The 3rd respondent re-

fixing the pay of the petitioner in PRC 2010 duly taking into

consideration of D.A and fitment to the pay which was drawn by

the petitioner in his parent department and drawn the difference

amount by way of two cheques and the same was informed to the

2nd respondent. Subsequently the 2nd respondent issued

proceedings dated 19.09.2016 directing the 3rd respondent to allow

the pay of the petitioner in RPS 2010 only with effect from his date

of absorption i.e 25.07.2009 as Assistant Engineer in the Pay

Scale 13660-38570 of Agricultural Marketing Department and

issued proceedings dated 05.10.2016 to that effect by the 3rd

respondent, which is the subject matter in this writ petition.

5. As per Paragraph No.8 of the Revised Scales, 2010 issued

in G.O.Ms.No.52, Finance (P.C-I) Department, dated 25.02.2010

wherein it is stated as follows:

"8. The Revised Pay Scales shall apply to

a) All employees of the State Government.

b) The employees of the local bodies and Aided institutions including Polytechnics, who are in receipt of pay in a regular pay scale in the revised pay scales of 2005 and'

At Paragraph No.11(b) of the said G.O it is stated as under:

"The Revised Pay Scale 2010 will not apply to the employees of industrial and commercial undertakings of Government and Contingent Establishment both full and part-time and employees who are engaged on contract and or on out sourcing basis".

6. It is further contended that as per the above Government

Order, in order to become eligible for fixation of pay in the Revised

Pay Scales-2010, the petitioner must be a Government Servant by

the date of absorption in the Marketing Department or must be in

receipt of pay in regular pay scale of Revised Pay Scales, 2005.

Since the petitioner herein is not a government employee, he is not

entitled for Revised Pay Scales, 2010. The petitioner became

Marketing Department employee on 25.07.2009. At the time of

joining into Marketing Department, PRC 2010 is in force and the

pay of the petitioner is fixed at Rs. 15,210 in the pay scale of Rs.

13660-38570 of PRC-2010 which is assigned to Assistant Engineer

in Marketing Department duly protecting his pay under F.R

22(a)(i)(ii) drawn in his parent department.

7. The respondents relied on decision of the learned Tribunal

in O.A.No.8765 of 2012 in similar circumstances, wherein the

learned tribunal dismissed the same holding that the petitioner is

not a government servant at the time of absorption into the

Marketing Department. Further the decision relied by the

petitioner in the case of "State of Punjab and Others Vs. Rafiq

Masih (White Washer) and Others"1 is not applicable in the

instant case as the Hon'ble Apex Court laid down the principles for

recovery from employees, when the excess payment has been

made for a period in excess of five years, before the order of

recovery is issued. In the instant case excess amount was drawn

in the month of February, 20016 and the recovery order is issued

(2015) 4 SCC 334

on 05.10.2016 which is within two months. Therefore the said

judgment is not applicable to this matter. Hence the writ petition

is liable to be dismissed.

8. During hearing learned counsel for the petitioner

reiterated the contents urged in the writ petition. Whereas learned

Government Pleader for the respondents vehemently opposed to

grant any relief in favour of the petitioner as the petitioner is not a

Government Employee at the time of absorption. Therefore

impugned order is issued to recover the excess amount.

9. After absorbing the services of the petitioner as Assistant

Engineer in Central Market Fund Service, the 2nd respondent

passed an order dated 05.03.2010 fixing the pay of the petitioner

in the pay scale of Rs. 7770-18575 as per RPS 2005. The pay

fixation was effected by the orders of the Executive Engineer dated

02.04.2011. It is very clear that it is the respondents to fix the pay

of the petitioner under RPS 2005. Further learned counsel for the

petitioner would contend that it is not the case of the official

respondents in the entire impugned orders that the earlier fixation

made due to fraud or mis-representation on the part of the

petitioner. Therefore, the question of treating the said fixation is

highly illegal and affecting recovery treating the amounts paid are

in excess after lapse of more than six years is highly illegal and

arbitrary. Further learned counsel for the petitioner reiterated the

decisions of the Hon'ble Apex Court, wherein it was held that if

any higher pay scales given erroneously due to the no fault of the

person, the question of affecting recovery thereafter while re-fixing

the pay does not arise. Therefore the impugned order issued by the

respondents is liable to be set aside.

10. The Commissioner issued ratification orders dated

19.09.2016, wherein it was observed that the pay scales fixed

under RPS 2005 after implementation of RPS 2010 is not in

accordance with the Government Orders, therefore, directing the

concerned to re-fix the pay scale of the petitioner. Therefore it is

very clear that the mistake committed by the respondents in fixing

the pay scales of the petitioner, for which the petitioner is no way

responsible. In view of the revision of Pay fixation orders, the

salary of the petitioner was reduced from Rs. 88,345/- to Rs.

52,250/- and in fact the fixations made earlier by the respondents,

the petitioner raised objections, but without giving any opportunity

the respondents effected fixations.

11. Learned counsel for the petitioner draws the attention of

this Court with regard to parameters laid down by the Hon'ble

Apex Court is that the employer cannot affect any recovery from

the employee if excess payment has been made for a period in

excess of five years, before the order of recovery is issued. In the

instant case, the petitioner's earlier pay fixation order was passed

on 05.03.2010 and the impugned orders were passed on

05.10.2016. Therefore the said cancellation orders were passed

beyond five years. As per the said judgment, the question of

affecting any recovery treating it as excess amount does not arise.

Therefore the respondents are not entitled to recover the amount

from the petitioner.

12. This Court finds that there is improper pay fixation

effecting on the petitioner, though there was an observation by the

Commissioner in its proceedings dated 19.09.2016 for re-fixation

of the pay scales of the petitioner as there was mistake occurred

by the respondents while fixing the pay scales of the petitioner

under RPS 2005. Instead of rectifying the said mistake and after

long lapse of several years, the respondents issued impugned

order to recover the amounts from the petitioner is highly illegal,

arbitrary and same is hereby set aside.

13. Since the 2nd respondent issued orders dated

05.03.2010 granting pay scales of the petitioner in the Revised Pay

Scales of 2005 with effect from 25.07.2009 and further an order

was passed by the Executive Engineer dated 02.04.2011 fixing his

pay in RPS 2005. Therefore the plea of the respondents that the

petitioner is not a Government employee at the time of absorption

cannot be looked into.

14. Having regard to the facts and circumstances of the

case, upon perusal of the material on record and considering the

submissions of both the counsel, this Court inclined to dispose of

the writ petition, while directing the respondents to re-fix the pay

scale of the petitioner from the date of absorption i.e 25.07.2009

as Assistant Engineer and pass appropriate reasoned order within

six (06) weeks from the date of receipt of a copy of this order.

Further it is left open for the petitioner to challenge the said order,

if he suffers any injustice.

15. With the above direction, the Writ Petition is disposed of.

There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall

also stand closed.

___________________________________ DR.JUSTICE K. MANMADHA RAO Date: 13.12.2022.

KK

THE HON'BLE DR.JUSTICE K. MANMADHA RAO

WRIT PETITION (A.T) No.353 of 2021

Date: 13.12.2022.

KK