Telangana High Court
V.Kesava Rao Died Per Lr vs Telangana State Power Generation ... on 30 April, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
WRIT PETITION No.24656 of 2020
ORDER:
This Writ Petition is filed by the petitioner seeking a
declaration that the action of the respondents in issuing
Letter No.FA&CCA (Res)/Dycca(ERP)/SAO-I/AO-Pen/
D.No.294/20, dated 06.03.2020, directing the petitioner to
remit an amount of Rs.6,16,317/- on the ground that there
is an excess payment of pension on account of erroneous
fixation of pension in the year 2014, as illegal, arbitrary
and without jurisdiction and to consequently set aside the
same 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 has retired from service
of the respondent No.1 Corporation on 30.06.1994 as
Additional Divisional Engineer. Thereafter, the petitioner
was being paid pension without any objection from any
person and in the year 2011, a Memo No.CE/O&M/KTPS/
SAO-I/Pen-D/PPO No.5279/ F.L./BD/ D.No.713/11, dated
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30.12.2011 was issued stating that on superannuation,
pension of the petitioner was fixed at Rs.22,228/- and by
virtue of G.O.O.No.480 JS(Per) 2010, an additional
quantum of 15% on basic pension was added w.e.f.
01.07.2011 and the excess amount that was added was
Rs.3,334/- and thus, a total sum of Rs.25,562/- was being
paid as basic pension w.e.f. 01.07.2011. Subsequently,
while applying the RPS of 2014, basic pension was taken at
Rs.25,562/- for the purpose of consolidation and
application of revised pay scale of 2014, and thus, the
petitioner was being paid a sum of Rs.47,366/- as basic
pay and a total gross of Rs.55,469/- was being paid. On
the revision of pay on account of RPS-2018, w.e.f.
01.04.2018, the petitioner was being paid a sum of
Rs.94,335/-.
3. However, in the year 2019 vide letter dated
17.10.2019, the respondent No.2 stated that there was an
erroneous fixation of pension while applying RPS-2014 and
consequently RPS-2018 and therefore, an amount of
Rs.6,16,317/- has been paid in excess and therefore,
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directed the petitioner to refund the same. The petitioner
submitted his representation on 21.11.2019 and also filed
a Writ Petition i.e., W.P.No.1996 of 2020, challenging the
proceedings dated 17.10.2019. The writ petition was
disposed of by this Court vide orders dated 03.02.2020
directing the respondents to consider the explanation of the
petitioner dated 21.11.2019 and to pass appropriate order
thereon. The petitioner, in his explanation, had stated the
various medical problems being faced by him and also
referred to a judgment of the Hon'ble Supreme Court and
the guidelines framed by the Hon'ble Supreme Court in
such recovery cases. The petitioner alleges that the
respondents, however, passed the impugned order dated
06.03.2020 without taking into consideration the
contentions of the petitioner on the ground that the
recovery is being sought to be made within a period of five
years, i.e., 4 years 10 months and 17 days only and hence
is within the time allowed by the Hon'ble Supreme Court
for such rectification.
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4. Learned counsel for the petitioner submits that
the notice dated 08.11.2019 issued by the respondent No.2
clearly shows that the excess payment of service pension
was calculated from April, 2014 to September, 2019 and if
that said date is taken into consideration, more than five
and half years lapsed after fixation of pension w.e.f.
01.04.2014, but in order to avoid the consequences of the
Hon'ble Supreme Court's judgment, the respondent is
innovatively contending that the date of actual payment
has to be taken into consideration and not the date with
effect from which the pension is being refixed. It is further
submitted that though the fixation was w.e.f. 1st April,
2014, the money was actually paid in the month of
January, 2015. Therefore, the recovery is after the delay of
more than five years and the same could not have been
done in view of the judgment of the Hon'ble Supreme Court
in the case of State of Punjab and Others Vs. Rafiq
Masih (White washer) and Others 1.
1 (2015) 4 SCC 334
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5. Learned Standing Counsel appearing for the
respondents, has relied upon the averments made in the
counter affidavit supporting the impugned notice and also
submitted that the erroneous fixation of RPS-2014 was
made in the year 2015 and the error was sought to be
rectified in the year 2019, which is within the period of five
years and therefore, the same is sustainable. The error
committed in fixation of pay is explained in Para-7 of the
counter affidavit as under:
"7. It is submitted that the averments made in Para
Nos. 4 & 5, are not correctly stated. As per
G.O.O.No.480/JS (Per)/2010, dated.14.12.2010, every
pensioner by virtue of age is eligible to be paid
additional quantum @ 15% after attainment of 75 years
of age. In compliance with the said G.O., the additional
quantum of pension @ 15% (basic pension) is paid to the
Writ Petitioner on attaining 75 years of age as on
01.07.2011. But the said component does not form part
of the basic pension for revision. Therefore, the
Additional quantum @ 15% i.e., Rs.3,334/- is not be
considered while fixing the basic pension in revised pay
scales. Hence, the fixation done in RPS-2014
erroneously was rectified. The basic pension of the Writ
Petitioner as on 01.04.2014 was only Rs.22,228/- and
additional quantum of pension @ 15% on basic pension
i.e., Rs.3,334/-. The additional quantum itself implies
the additional amount of pension to be paid on basic
pension as percentage. The revision of pension is
always made by taking the basic pension only. Whereas
in RPS-2014 the consolidation (fixation) of pension is
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done erroneously by taking Rs.25,562/- as basic
pension, instead of taking basic pension of Rs.22,228/-.
Accordingly, the basic pension in RPS-2014 was
erroneously fixed as Rs.47,366/- instead of Rs.41,188/-
In RPS-2018, the basic pension fixed in RPS-2014 i.e.,
Rs.47,366/- was taken as basic pension and there by
the pension is fixed as Rs.77,488/- instead of
Rs.67,382/- as basic pension."
6. It is also submitted that the medical problems
faced by the petitioner cannot be a reason for not making
the recovery of the excess pension paid to the petitioner. It
is submitted that the respondents have evolved a good and
robust medical policy to all its pensioners on par with
regular employees such as cashless facility for treatment of
self and family against credit card issued by the
respondents and that the writ petitioner has already
availed the benefit of the same for himself and also for his
wife and therefore, the problems referred to by the
petitioner are devoid of merits. In respect of recovery of
amounts, the writ petitioner was given an option to pay
50% of the amount immediately and the balance in 12
monthly instalments, but since the petitioner failed to
respond, 1/3rd of the pension was being recovered from his
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pension from November, 2019 onwards. The respondents
therefore prayed for dismissal of the writ petition.
7. Learned Standing Counsel has also referred to
various provisions of law and also the judgments of the
Hon'ble Supreme Court including the judgment of Rafiq
Masih (cited supra) and also in the case of High Court of
Punjab & Haryana and Others Vs. Jagdev singh 2,
wherein the Hon'ble Supreme Court has held that where
officer to whom payment was made in first instance was
clearly placed on notice at the time of payment itself that
any payment made in excess would be required to be
refunded and the officer furnished an undertaking to that
effect while opting for the revised pay scale, he is bound by
the undertaking and therefore, in such cases the rationale
in the case of Rafiq Masih (cited supra) would not apply.
8. Having regard to the rival contentions and the
material on record, this Court finds that the only issue to
be considered in this case is whether recovery of the excess
payment of pension to the petitioner, can be made in this
2 (2016) 14 SCC 267
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case and whether it is covered by the decision of the
Hon'ble Supreme Court in the case of Rafiq Masih (cited
supra). In the case of Jagdev Singh (cited supra) referred to
by the learned standing counsel for the respondents, the
Hon'ble Supreme Court has considered its earlier judgment
in the case of Rafiq Masih (cited supra) and has held that
principle enunciated in proposition (ii) i.e., recovery from
retired employees, or employees who are due to retire
within one year, of the order of recovery, cannot apply to a
situation where an officer has given undertaking that if any
excess payment was made, it would be required to be
refunded, but in the present case, that is not the situation.
As seen from the impugned notice dated 17.10.2019, the
respondents sought to revise the consolidated pension as
on 01.04.2014 and also the revised pension in RPS-2018.
The date of fixing of the pension in accordance with RPS-
2014 is not available, but it appears to have been done
w.e.f. 01.04.2014. Five years therefrom would be
31.03.2019, whereas the impugned notice has been given
on 17.10.2019. Therefore, it is clearly after a period of five
years and hence, in view of the judgment of the Hon'ble
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Apex Court in the case of Rafiq Masih (cited supra) the
recovery cannot be made by the respondents. The further
point to be noted is that the petitioner has died during the
pendency of the petition and it is the legal heir i.e., the wife
of the writ petitioner who is on record. The respondents
have admitted that they have recovered the some of the
amounts from the pension of the petitioner i.e., 1/3rd of the
pension is being recovered from November, 2019 onwards.
Therefore, the entire amount might have been recovered
from the pension of the petitioner by now.
9. In view of the finding that the recovery is bad in
law, the respondents are directed to refund the entire
amount to the petitioner within a period of three (3)
months from the date of receipt of a copy of this order and
if it is not done so, then the amount shall be paid
thereafter with interest @ 8% per annum from the date of
three months till the date of payment.
10. Accordingly, this writ petition is disposed of.
There shall be no order as to costs.
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11. Miscellaneous petitions, if any, pending in this
Writ Petition, shall stand closed.
____________________________
JUSTICE T.MADHAVI DEVI
Dated: 30.04.2024
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THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
WRIT PETITION No.24656 of 2020
Dated: 30.04.2024
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