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Telangana High Court · body

2024 DIGILAW 692 (TS)

P. Madhusudhan Reddy v. State of Telangana

2024-09-06

PULLA KARTHIK

body2024
ORDER : Pulla Karthik, J. Since the lis raised in both these writ petitions is one and the same, they are taken up together and being disposed of by this common order. 2. Heard Sri M. Srikanth, learned counsel for the petitioner in W.P. No.12715 of 2024, Sri A.Raghuram, learned counsel for the petitioner in W.P. No.13687 of 2024, learned Government Pleader for Services-I appearing for respondent No.1, Sri T.Mahender Rao, learned Standing Counsel, appearing for National Institute of Technology, and Sri R. Anurag, learned counsel for Union of India. W.P. No.12715 of 2024 3. Learned counsel for the petitioner has submitted that the petitioner herein was appointed as Physical Director on 24.03.1992 in the respondent-NIT. Thereafter, he was promoted as Physical Director (Selection Grade) in the scale of 12000-4520-18300 w.e.f.29.02.2004 vide order dated 03.08.2004. Further, he was redesignated as Associate Professor of Physical Education w.e.f.01.01.2006 vide order dated 25.01.2016. He was also sanctioned fixation of pay and grade increments on 22.02.2018 in the VII Central Pay Commission. Further, Academic Grade Pay was mapped from Rs.9000/- to Rs.9500/- in the post of Associate Professor on 27.03.2018. While so, the second respondent has issued revised pay fixation order dated 10.08.2022 wherein the pay of the petitioner was revised based on the audit inspection report for the year 2022-2023 wherein some observations were made about irregular pay fixation on account of promotion from Assistant Professor to Associate Professor made on 01.07.2006. Learned counsel has contended that the recovery of excess amount was directed after a lapse of 16 years that too without issuing any notice. Therefore, the petitioner made representations to respondent No.2 on 16.08.2022, 22.08.2022, 23.08.2022, 29.08.2022 stating that the observations made in the Audit Inspection report are not applicable to the case of the petitioner as the said objection is applicable only when an employee could not get promotion within six months from 01.01.2006 whereas the petitioner was promoted on 01.04.2006 itself. Further, the petitioner also made a representation dated 15.10.2022 to the Director General of Audit to re-examine the case of the petitioner and accordingly the case of the petitioner was reexamined and further action was dropped and the same was informed to respondent No.2 vide letter dated 21.11.2023. Further, the petitioner also made a representation dated 15.10.2022 to the Director General of Audit to re-examine the case of the petitioner and accordingly the case of the petitioner was reexamined and further action was dropped and the same was informed to respondent No.2 vide letter dated 21.11.2023. In spite of the same, respondent No.2 has issued impugned Order No.247/2024 dated 25.04.2024 for recovery of amount from the petitioner and the same is illegal, arbitrary, violative of Article 14 of the Constitution of India and also the law laid down by the Hon’ble Supreme Court in State of Punjab v. Rafiq Masih (White Washer) (2015) 4 SCC 334 wherein the it was held that recovery from employees when the excess payment has been made for a period in excess of five years, before the order of recovery is issued, is impermissible in law. Further, the impugned order also discloses non-application of mind by respondent No.2. Despite the Audit Office dropped the recovery proceedings, respondent No.2 has proceeded with recovery that too without issuing any prior notice or without following due process of law. 4. Per contra, the learned Standing Counsel appearing for the respondent-NIT has contended that the petitioner was appointed as Physical Director vide order dated 24.03.1992 and joined on 09.04.1992. Thereafter, vide order dated 03.08.2004, he was promoted as Physical Director (Selection Grade) under Career Advancement Scheme w.e.f.29.02.2004. Thereafter, vide order bearing No.AD-1/ID.No.564/2016/4102, dated 25.01.2016, he was re-designated as Associate Professor of Physical Education w.e.f.01.01.2006, pursuant to the clarification issued by the MHRD in its letter bearing F.No.20-9/2015/TS.III, dated 26.11.2015. Even though in the said clarification it was specifically stated that “those Physical Education Personnel who are already continuing as faculty may be allowed in the same position till he/she retires”, the re-designation orders dated 25.01.2016 were issued with retrospective effect from 01.01.2006 without any authority. Thereafter, pursuant to the objections taken during the audit of the Institute by the Office of the Director General of Audit (Central) Telangana, vide its letter dated 04.04.2022, the revised pay fixation order bearing No.NITW/AD-2/564/2022/1728, dated 10.08.2022 was issued re-fixing the pay of the petitioner. Thereafter, the respondent-NIT has submitted a proposal before its Finance Committee for considering waiver of recovery of excess payment made to 19 employees, including the petitioner, to the tune of Rs.1.70 crores and the same is under consideration of the Ministry. Thereafter, the respondent-NIT has submitted a proposal before its Finance Committee for considering waiver of recovery of excess payment made to 19 employees, including the petitioner, to the tune of Rs.1.70 crores and the same is under consideration of the Ministry. It is further contended that based on the misrepresentation made by the petitioner that he was promoted on 01.01.2006 and not on 01.04.2006 and therefore completed 6 months qualifying service, the Audit has issued the letter dated 21.11.2022 dropping the para, but the fact remains that he was never promoted on 01.01.2006. Further, pursuant to the representations made by the petitioner and other similarly situated employees, the Institute has constituted a Committee for Pay Fixation Review and Grievance Redressal on 29.05.2023 and thereafter the impugned order dated 25.04.2024 was passed upholding the revised pay order issued to the petitioner among others. Hence, there are no merits in the writ petition. W.P. No.13687 of 2024 5. Learned counsel for the petitioner submits that the petitioner was appointed as Physical Director on 20.04.1992 and thereafter he was re-designated as Associate Professor w.e.f.01.01.2006 and further promoted as Professor on 27.03.2018. Thereafter, pursuant to the objection raised during the audit by the Director General of Audit (Central), the respondents have issued Office Order dated 08.05.2023 re-fixing the pay of the petitioner, without issuing any notice to the petitioner, in violation of principles of natural justice. Again on 25.04.2024, the respondents have issued office order No.247/2024, dated 25.04.2024, arbitrarily seeking recovery of excess amount. Thereafter, the respondents have issued impugned office order dated 24.05.2024 reducing his pay scale without issuing any notice or giving any opportunity of hearing to the petitioner. Learned counsel has contended that the order of re-designation was issued on 25.01.2016 w.e.f.01.01.2006 and contrary to the same, the respondents have issued the impugned office order on the misconception that re-designation was made w.e.f.01.04.2006. Even though petitioner made representations dated 21.06.2023 and 07.05.2024 with a request to drop all the points for recovery/reduction of salary, respondents have not considered the same. Therefore, the learned counsel seeks indulgence of this Court. 6. Per contra, the learned Standing Counsel appearing for the respondent-NIT has contended that the petitioner was appointed as Physical Director but not in the cadre of Assistant Professor or Professor. He was granted senior scale w.e.f.24.07.1998 and promoted as Physical Director (Selection Grade) under Career Advancement Scheme w.e.f.01.04.2003. Therefore, the learned counsel seeks indulgence of this Court. 6. Per contra, the learned Standing Counsel appearing for the respondent-NIT has contended that the petitioner was appointed as Physical Director but not in the cadre of Assistant Professor or Professor. He was granted senior scale w.e.f.24.07.1998 and promoted as Physical Director (Selection Grade) under Career Advancement Scheme w.e.f.01.04.2003. As he was promoted w.e.f.01.04.2003, his contention that he was possessing Ph.D. and that he is entitled to be promoted as Associate Professor on completion of three years of service is incorrect. In fact, when the petitioner made a representation on 05.05.2004 to the Board of Governors requesting for grant of designation of Deputy Director of Physical Education, the Board has turned down his request and directed that he should go for selection process for the required designation. As regards contention of the petitioner that he was re-designated as Associate Professor of Physical Education w.e.f.01.01.2006 vide order dated 25.01.2016, learned Standing Counsel has contended that the Ministry of Human Resources vide its letter bearing F.No.20-9/2015-TS.III, dated 26.11.2015, has specifically stated that those physical education personnel who are already continuing as faculty, may be allowed in the same position till he/she retires. When that be so, re-designating the petitioner as Associate Professor vide order dated 25.01.2016 with retrospective effect from 01.01.2006 is without any authority. In the instant case, the petitioner was given increment on 01.04.2006 and immediately on 01.07.2006 without completion of qualifying service as envisaged under 6th Central Pay Commission. 7. Learned Standing Counsel has further contended that the petitioner was promoted and appointed as Physical Director (Selection Grade) vide order dated 03.03.2004 and as per para 5 of Ministry of Human Resource Development (MHRD) letter dated 18.08.2009 extending 6th Central Pay Scales to NITs, ‘Cadre of Librarians and Directors of Physical Education will be given revised pay and other benefits as notified vide MHRD letter No.1-32/2006- U.II/U.I (i), dated 31.12.2008 and the qualifications and the age of superannuation (60 years) will remain unchanged’. Further, as per the MHRD letter dated 31.12.2008, the cadres of Professors, Librarians and Physical Education Personnel are all different structures. Para 6 thereof deals with Pay Scales and Career Advancement Scheme for Physical Education Personnel, as per which, those Physical Educational Personnel in the AGP of 8000 will move to Pay Band of Rs.37400-67000 with AGP of Rs.9000 after completion of 3 years in AGP 8000. Para 6 thereof deals with Pay Scales and Career Advancement Scheme for Physical Education Personnel, as per which, those Physical Educational Personnel in the AGP of 8000 will move to Pay Band of Rs.37400-67000 with AGP of Rs.9000 after completion of 3 years in AGP 8000. Learned Standing Counsel has strenuously contended that in terms of above provision, the petitioner was granted senior scale with AGP 8000 w.e.f.01.04.2003 and promoted and moved to AGP 9000 w.e.f.01.04.2006. The effect of 6th Central Pay Commission was given w.e.f.01.01.2006, however, the petitioner was promoted and moved to AGP 9000 w.e.f.01.04.2006 and before completion of 6 months qualifying service from 01.04.2006, the petitioner was prematurely granted one increment on 01.07.2006 and therefore the contention of the petitioner that he is eligible for increment on 01.07.2006 is incorrect. Therefore, the respondents have rightly ordered for recovery of excess payment made to the petitioner. W.P. Nos.12715 and 13687 of 2024 8. This Court has taken note of the submissions made by respective counsel. 9. A perusal of the record discloses that both the impugned proceedings were issued re-fixing the pay of the petitioners respectively and also for effecting recovery of excess payment. Since the challenge in these two writ petitions is only to the extent of recovery, this Court is not inclined to deal with the other aspects of the matter. 10. Admittedly, the resultant excess payment is arising out of the revised pay orders issued for the period from 2006 till March, 2024. But, even as per the counter averments, the issue of resultant excess payment is under active consideration by the Ministry of Education, Government of India, for waiver of recovery. That apart, it is an admitted fact that the petitioners are receiving the said benefit from 2006 onwards whereas the present impugned orders are issued in the year 2024 for effecting recovery of excess payment, which are allegedly being paid since 2006, without any notice, which amounts to violation of principles of natural justice. 11. In this context, it is apt to state that in Rafiq Masih (referred supra), the Hon’ble Supreme Court, while upholding the action of the High Court of Punjab in quashing the recovery proceedings, has summarised the situations where the recovery sought by the employer were held to be impermissible, as under: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from 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 harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover. 12. Admittedly, in the case on hand, the excess payment allegedly being paid since 2006 is sought to be recovered in the year 2024, without any notice and that too when the issue of waiver is under consideration before the Government. Therefore, in view of the law laid down by the Hon’ble Supreme Court in Rafiq Masih (referred supra), the impugned recovery proceedings are not sustainable and liable to be set aside. 13. Accordingly, both the writ petitions are allowed, the impugned orders are set aside and the respondents are directed to refund the amounts, if any recovered from the petitioners already. Miscellaneous petitions pending, if any, shall stand closed. No order as to costs.