T. Vinod Kumar, Hyd. vs Directorate Of State Audit, And 2 ...
2023 Latest Caselaw 3267 Tel

       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

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

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

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

(2015) 4 SCC 334

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

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