Point of Law: No disciplinary proceedings are pending against the petitioner. Under such circumstances, withholding of retirement benefits under the guise of the impugned Memo is unjust, arbitrary.

ORDER :

The present Writ Petition is filed aggrieved by the action of respondents in issuing Memo No.A1/172/2020 dated 01.12.2020, seeking, recovery of excess pay and allowances made to the petitioner from 01.04.1994 to 11.05.2010, as illegal, arbitrary, violative of Articles 14, 16 and 21 of the Constitution of India and for a consequential direction to pay the retirement benefits and pension to the petitioner, by setting aside the said Memo.

2. Heard Mr.G.R. Sudhakar, learned counsel for the petitioner and the learned Government Pleader for Services-IV, appearing for the respondents.

3. The petitioner was appointed as Civil Assistant Surgeon on 14.01.1992. He worked at various places and retired from services on 31.01.2020 on attaining the age of superannuation, after rendering 32 years of service. As the retirement benefits were not released and pension is not being paid, the petitioner approached respondents 2 and 3 on several occasions, but the same did not yield any response. Ultimately, the petitioner was informed that he has drawn excess pay and allowances from 01.04.1994 to 11.05.2010 and the same is sought to be recovered as per Memo dated 01.12.2020 of the 2nd respondent. After waiting for considerable time, the petitioner got issued a legal notice on 28.04.2021 requesting the respondents to release the retirement benefits and pay pension as per Rules, with interest at the rate of 12% per annum. Despite receipt of the said notice, the respondents did not move in the matter nor issued any reply to the said notice and in such circumstances, the petitioner invoked extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, seeking the reliefs as prayed for.

4. The learned counsel for petitioner, inter alia, contends that the action of respondents seeking to recover pay and allowances allegedly paid in excess to the petitioner is unjust, arbitrary and unsustainable. He submits that the payment allegedly made wrongly to the petitioner dates back to the period from 01.04.1994 to 11.05.2010 i.e., more than 27 years ago and recovery of the same would affect the petitioner’s financial capacity, causes a serious dent to his post retirement life. He further submits that the impugned Memo is not sustainable, in as much as, no notice was issued at any point of time and straight away the Memo dated 01.12.2020, which is in the nature of an order has been issued to recover the alleged excess pay and allowances from the petitioner and remit the same to the Government’s account. The learned counsel submits that the petitioner has no role in fixation of pay and allowances and therefore he cannot be made responsible for the alleged excess payment made to him by the department. The learned counsel further contends that the retirement benefits and pension are the fundamental rights guaranteed under Article 21 of the Constitution of India and as such the petitioner cannot be deprived of the same. He submits that the Government can withhold pension or withdraw pension only in terms of Rule 9 of the Andhra Pradesh Revised Pension Rules, 1980 and that the same has no application to the facts of the present case. He submits that in view of non-payment of monthly pension, the petitioner is subjected to mental agony and financial difficulties. The learned counsel while placing reliance on the judgments of the Hon’ble Supreme Court in Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 and State of Punjab v. Rafiq Masih, 2015 (4) SCC 344 contends that even assuming without conceding, the excess payment cannot be recovered after long lapse of time, that too when the petitioner is no way responsible for the same. He also submits that as per the expression of the Hon’ble Supreme Court, in the said judgments, recovery of excess payments five years after the alleged payment would be iniquitous, arbitrary and therefore the impugned Memo is liable to set aside, as the recovery sought to be made is in respect of the period from