Karnataka High Court
Dr Meena W/O. Narayan Jadhav vs The Principal Secretary To The Govt. Of ... on 12 January, 2024
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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NC: 2024:KHC-D:737
WP No. 101363 of 2022
C/W WP No. 101210 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 12TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA
WRIT PETITION NO. 101363 OF 2022 (S-RES)
C/W. WRIT PETITION NO. 101210 OF 2022 (S-RES)
IN WP NO. 101363 OF 2022:
BETWEEN:
DR. SHREEKANT S/O KRISHNAMURTHY KITTUR,
AGE. 59 YEARS, OCC. SERVICE,
R/O. SHREEKRISHNA, PLOT NO.248,
7TH CROSS, BHAGYA NAGAR,
BELAGAVI-590006.
... PETITIONER
(BY SRI. SANGRAM S. KULKARNI, ADVOCATE)
AND:
Digitally
signed by
MANJANNA 1. THE PRINCIPAL SECRETARY
MANJANNA E
E Date:
2024.01.16 TO THE GOVT. OF KARNATAKA,
11:59:25
+0530
DEPARTMENT OF HEALTH & FAMILY WELFARE
(MEDICAL EDUCATION), #105, 1ST FLOOR,
VIKAS SOUDHA, BANGALORE-560001.
2. THE PRINCIPAL SECRETARY TO THE
GOVT. OF KARNATAKA,
HEALTH & FAMILY WELFARE DEPARTMENT,
1ST FLOOR, VIKAS SOUDHA,
BANGALORE-560001.
3. THE DIRECTOR,
MEDICAL EDUCATION,
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NC: 2024:KHC-D:737
WP No. 101363 of 2022
C/W WP No. 101210 of 2022
GOVERNMENT OF KARNATAKA,
ANANDRAO CIRCLE, BANGALORE-560009.
4. THE DIRECTOR,
BELAGAVI INSTITUTE OF MEDICAL SCIENCES,
DR. B.R. AMBEDKAR ROAD,
SADASHIV NAGAR, BELAGAVI -590019.
... RESPONDENTS
(BY SRI. BHOJEGOUDA T. KOLLER, AGA FOR RF1-R3;
SRI. VEERESH BUDIHAL, ADVOCATE FOR R4)
THIS WRIT PETION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT CERTIORARI AND QUASH THE IMPUGNED
OFFICE MEMORANDUM BEARING NO.BIMS/EST/805/2021-
22/2233 DATED 18.10.2021 VIDE ANNEXURE-G SO FAR
AS IT RELATES TO THE PETITIONER ISSUED BY THE
RESPONDENT NO.4 DIRECTOR, BIMS, BELAGAVI AND
ETC.
IN WP NO. 101210 OF 2022:
BETWEEN:
DR. MEENA W/O NARAYAN JADHAV,
AGE. 58 YEARS, OCC. SERVICE,
R/O. CTS NO.4842/A-6,
SADASHIV RESIDENCY,
FLAT NO.S-04, 11TH CROSS,
NEAR SHIVALAYA TEMPLE,
SADASHIV NAGAR, BELAGAVI-590019.
... PETITIONER
(BY SRI. SANGRAM S. KULKARNI, ADVOCATE)
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NC: 2024:KHC-D:737
WP No. 101363 of 2022
C/W WP No. 101210 of 2022
AND:
1. THE PRINCIPAL SECRETARY TO THE
GOVT. OF KARNATAKA,
DEPARTMENT OF HEALTH & FAMILY WELFARE
(MEDICAL EDUCATION), #105, 1ST FLOOR,
VIKAS SOUDHA, BENGALURU-560001.
2. THE PRINCIPAL SECRETARY TO THE
GOVT. OF KARNATAKA,
HEALTH & FAMILY WELFARE DEPARTMENT,
1ST FLOOR, VIKAS SOUDHA,
BENGALURU-560001.
3. THE DIRECTOR MEDICAL EDUCATION,
GOVERNMENT OF KARNATAKA,
ANANDRAO CIRCLE,
BENGALURU-560009.
4. THE DIRECTOR,
BELAGAVI INSTITUTE OF MEDICAL SCIENCES,
DR. B.R. AMBEDKAR ROAD, SADASHIV NAGAR,
BELAGAVI-590019.
... RESPONDENTS
(BY SRI. BHOJEGOUDA T. KOLLER, AGA FOR R1-R3;
SRI. VEERESH BUDIHAL, ADVOCATE FOR R4)
THIS WRIT PETION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT OF CERTIORARI AND QUASH THE
IMPUGNED OFFICE MEMORANDUM BEARING
NO.BIMS/EST/805/2021-22/2233 DATED 18.10.2021 VIDE
ANNEXURE-E SO FAR AS IT RELATES TO THE PETITIONER
ISSUED BY THE RESPONDNET NO.4 DIRECTOR, BIMS,
BELAGAVI AND ETC.
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NC: 2024:KHC-D:737
WP No. 101363 of 2022
C/W WP No. 101210 of 2022
THESE PETITIONS, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The order of recovery has been made in these
cases on the ground that the petitioners were paid excess
salary (increments), which they were not entitled.
2. The petitioners were appointed in the year 2006
and 2008 as professors.
3. The petitioners were granted increments in the
year 2008. This grant of increment was objected to by the
Auditors in the year 2017 and as a consequence, the
petitioners were issued with show cause notice and after
hearing their objections, the impugned orders of recovery
have been passed.
4. The Supreme Court in the case of State of
Punjab and others Vs. Rafiq Maish (White Washer)
and others, held as follows:
"18. It is not possible to postulate all situations of
hardship which would govern employees on the
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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, summarise 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).
(ii) Recovery from the retired employees, or t
he 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
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harsh or arbitrary to such an extent, as would far
outweigh the equitable balance of the employer's
right to recover."
5. Admittedly, even according to the University,
the petitioners were granted excess increments without
there being any false misrepresentations on their behalf.
Furthermore, the excess payment had been made for over
a period of five years and more importantly, the recovery
is ordered in respect of the petitioners within one year of
their retirement.
6. In the light of the judgment of the Supreme
Court, which has also been followed in the latest judgment
of the Supreme Court in the case of Thomas Daniel Vs.
Sate of Kerala & Ors. in Civil Appeal No.7115/2010,
disposed off on 02.05.2022, it is clear that the orders of
recovery made against the petitioners who were on the
verge of retirement and who had received the excess
increments for over five years, without there being any
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misrepresentation on their behalf, cannot be sustained.
Accordingly, the impugned orders are quashed.
Sd/-
JUDGE
VNP*/CT:BCK
