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
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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
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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
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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
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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
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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
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