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2022 DIGILAW 1361 (AP)

Puli Arun Kumar v. State of Andhra Pradesh

2022-11-23

K.MANMADHA RAO

body2022
ORDER : As the issue involved in both the writ petitions is one and the same, these matters are taken up together for disposal by this Common Order. 2. Heard Mr. V.V.L.N. Sarma, learned counsel appearing for the petitioner and learned Government Pleader for Services-I appearing for the respondents. 3. The facts in these two writ petitions are similar and identical, therefore W.P.(AT) No.323 of 2021 is taken as lead case and the facts therein are referred to for convenience. The petitioner joined as Reserve Sub Inspector in A.P.S.P. Battalions in the year1977. Later, he appeared for Group-II examination conducted by the APPSC and was selected as Civil Sub Inspector and joined on 21.09.1985. Later the petitioner was promoted to the higher posts from time to time and posted at different places in different districts and now he is working as Superintendent of Police (Intelligence)((Waiting). It is further stated that one Mr. B. Chande Naik, who was working as Superintendent of Police (Non Cadre), Ongole, also originally joined in the police Department as RSI and later joined as Sub Inspector of Police (Civil) and he belonged to ST. He was given promotions from time to time not on regular line but basing on Rule of reservation and due to that he became senior to the petitioner and also he made representation to step up his pay on par with that of the petitioner. While the matter stood thus, without issuing any show cause notice and without affording any opportunity of hearing to the petitioner, the 3rd respondent has issued the impugned order vide Memorandum Rc.No.1318/G3/2015 dated 30.05.2016, wherein, certain directions were given to the 4th respondent that while fixing the pay to make some corrections as per rules. The 4h respondent and the Principal, PTC Ongole are also directed to take further action. Due to the same, the petitioner was informed that his pay would be revised. In view of the directions contained in the said impugned Memo, the Service Book of the petitioner will be sent to all the places where the petitioner worked for making necessary corrections. Release of his retirement benefits including pension will be unduly delayed due to the same for no fault on his part. Hence, the present writ petition. 4. In view of the directions contained in the said impugned Memo, the Service Book of the petitioner will be sent to all the places where the petitioner worked for making necessary corrections. Release of his retirement benefits including pension will be unduly delayed due to the same for no fault on his part. Hence, the present writ petition. 4. Counter affidavit is filed by the respondents No.1, 3 and 4 in WP(AT) No.323 of 2021 denying all the averments made in the petition and contended that the petitioner resigned to his job on 20.09.1985, later he made a representation to the Government requesting to withdraw his resignation, and after careful examination of the matter, the Government issued G.O.Ms.No.149 Home (POLICE.D) Department, dated 13.02.1990, wherein it is stated that the Government have examined the requests of Mr J.Hathi Ram and Mr. P.Arun Kumar and they accordingly permit for withdrawal of their resignations under rule 39(a) of the A.P. State and Subordinate Rules for the limited purpose of protection of pay as Sub Inspector (Civil). Accordingly, the petitioner joined in service on 21.09.1985 and the petitioner was retired from service on attaining the age of superannuation on 31.12.2016. It is further stated that on 19.04.2017 the Addl. Director General of Police, CID, A.P., Vijayawada has stated that the petitioner who retired from service on attaining the age of 60 years on 31.12.2016, has submitted representation for sanction of notional increment normally due to 01.01.2017 under Rule 32 (IV) of A.P. Revised Pension Rules, 1980 purely for the purpose of pensionary benefits, subject to the condition that this should not be considered for any other purpose. 5. On hearing, this Court observed that though the petitioner made several representations to the 3rd respondent on 6.6.016 and 6.9.2016, since no action has been taken by the respondents, the petitioner was come to an understanding that his pay would be revised and the amounts said to have been drawn by the petitioner in excess would be recovered from his salary. The petitioner was due to be retired from service on 31.12.2016 on attaining the age of superannuation. The petitioner was due to be retired from service on 31.12.2016 on attaining the age of superannuation. Thereafter, the petitioner preferred O.A No.3702 of 2016 before the Andhra Pradesh Administrative Tribunal, Hyderabad and the Tribunal vide order dated 19.09.2016 granted interim direction staying recovery of the alleged excess amount for a period of three months from the date of the order and the same was extended until further orders. Later, the petitioner was retired from service on 31.12.2016 vide proceedings in D.O.No.567/2017, C.No.4773/A3/ Pension/CID/2017, dated 08.12.2017 issued by the 5th respondent and the petitioner was sanctioned anticipatory pension of an amount of Rs.46,481/- as against the eligibility pension of Rs.51,645/-. However, the amounts due to the petitioner viz., Gratuity and commutation of Pension approximately of a sum of Rs.40 lakhs are withheld for no reason. Accordingly, the petitioner made representations to the respondents. Since they have not taken any action, he approached this Court by way of filing W.P.No.20291 of 2019 and the same was disposed of by this Court on 30.01.2020 directed the respondents to dispose of the representation dated 21.08.2019 submitted by the petitioner within a period of four weeks. However, the same was rejected by the 5th respondent vide impugned Memo in C.No.4773/A3/2017-20, dated 19.03.2020, which is impugned in W.P. No.13310 of 2020. 6. Learned counsel for the petitioner while reiterating the contents made in the petition submitted that as per the G.O.Ms.No.149, Home (Police.D) Department, dated 13.02.1990, the petitioner along with other individual have permitted to withdraw their resignations under Rule 39(a) of the A.P. State and Subordinate Service Rules for the limited purpose of protection of pay as S.I.(Civil) and afterwards, the pay of the petitioner was fixed consequent on his appointment as SI (Civil) w.e.f. 321.09.1985. Prior to the appointment of the petitioner, the 2nd respondent has issued G.O.Ms.No.213, Finance and Planning (Fin. Wing.FR.I) Department, dated 13.07.1983 inserting Sub Clause (iv) in the A.P. Fundamental Rules to the effect that the pay of a regular Government Servant (not appointed under the emergency provisions) when appointed directly to another post under the Government on Selection by the Public Service Commission shall be fixed in the new post a stage which is not lower than the pay drawn by him in the earlier post. He further submits that the 2nd respondent has issued another Memo No.14497/188/A1/FR.II/2000, dated 15.10.2004 clarifying that the protection of pay only is allowed in respect of fixation under the above rule, but there is no rule for protection of increment date in the previous post. He further submits that as per the impugned order the service of the petitioner for automatic advancement scheme has to be counted from 21.09.1985 only i.e., the date on which he was appointed as SI (Civil) and due to that the petitioner has prospective effect, but cannot be given retrospective effect. Viewed from any angle, the impugned order issued by the 3rd respondent is illegal. 7. On the other hand, learned Government Pleader also reiterated the contents made in the counter. He submits that, the AGDGP, CID, A.P., Vijayawada has informed that as per Rule F.R.22(a)(iv), “Pay shall be fixed in the new post at a stage not lower than the pay drawn in the earlier post. Protection of date of increment in the previous post is not allowed (MemoNo.14497/188/A1/FR.II/2000, dated 15.10.2004)” In view of the above rule position, the said ADGP requested the DGP, Vijayawada to issue clarification whether the petitioner is eligible for sanction of notional increments normally due on 01.01.2017 or not?. Accordingly, the DGP, Vijayawada has issued a Memo vide Z1/4773/AP/2017, dated 4.7.2017 and informed that as per FR.22(a)(iv), read with Government Memo No.14497/188/A1/FR.II/2000, dated 15.10.2004 of Finance (FR.II) Department, Government have already clarified that protection of pay only is allowed in respect of fixation, but there is no rule for protection of increment date in the previous post. 8. Accordingly, the DGP, Vijayawada has issued a Memo vide Z1/4773/AP/2017, dated 4.7.2017 and informed that as per FR.22(a)(iv), read with Government Memo No.14497/188/A1/FR.II/2000, dated 15.10.2004 of Finance (FR.II) Department, Government have already clarified that protection of pay only is allowed in respect of fixation, but there is no rule for protection of increment date in the previous post. 8. Learned Government Pleader further submits that the Finance Department issued an amendment in G.O.Ms.No.213 dated 13.7.1983 wherein it clearly stated that “In rule 22 of the said rules, in clause (a) after sub clause (iii) the following sub clause shall be inserted namely : “(iv) the pay of a regular Government Servant (not appointed under the emergency provisions) when appointed directly to another post under the Government on selection by the Public Service Commission shall be fixed in the new post at a stage which is not lower that the pay drawn by him in the earlier post.” Therefore, in view of the above G.O., the applicant is not entitled to for protection of his annual grade increment, since the petitioner joined in a new post after withdrawing his resignation to the earlier post and the action of the respondents in issuing the present impugned order dated 30.05.2016 is legally valid and justified. 9. The Hon’ble Supreme Court in a case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334 , wherein it was held that “recovery of amount paid in excess without fault of recipient-balancing of conflicting claims-Hardship caused to employee in case recovery is directed vis-a-vis equitable right of employer to recover – Recovery, when impermissible, instances enumerated. 10. In another case of Thomas Daniel Vs. State of Kerala and others, 2022 AIR (SC ) 2153, wherein the Hon’ble Supreme Court held that “if excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying wrong principle for calculating pay/allowance or on basis of particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable.” 11. The right to recover being pursued by the employer will have to be compared, with effect of the recovery on the employee concerned. The right to recover being pursued by the employer will have to be compared, with effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary to affect the recovery. In such a situation, the employee’s right would outbalance, and therefore eclipse, the right of the employer to recover. 12. Having regard to the facts and circumstances of the case and upon perusing the entire material available on record and on considering the submissions of both the learned counsels, this Court is of the considered view that, while declaring the impugned order in Rc.No.1318/G3/2015, dated 30.05.2016 issued by the 3rd respondent and also the impugned Memorandum C.No.4773/A3/CID/2017-20, dated 19.03.2020 issued by the 5th respondent as illegal, directing the respondents to fix the pay of the petitioner as per Revised Pay Scales subject to his eligibility. Further, the respondents also directed to release all his pensionary benefits including Gratuity and Commutation of Pension amounts to the petitioner which are due to him within thirty (30) days from the date of receipt of a copy of this order. Failing which, the respondents shall be paid interest @ 12% p.a. to the petitioner. 13. Accordingly, the Writ Petitions are Allowed setting aside the impugned order in Rc.No.1318/G3/2015, dated 30.05.2016 issued by the 3rd respondent and consequently the impugned Memorandum C.No.4773/A3/CID/2017-20, dated 19.03.2020 issued by the 5th respondent. There shall be no order as to costs. As a sequel, interlocutory applications, if any pending, shall stand closed.