Excess payments made due to erroneous salary fixation cannot be recovered from an employee if based on mistake without fraud; recovery post-retirement within a year is inequitable.

JUDGMENT :

RAVI NATH TILHARI, J.

1. Heard Sri R.S. Manidhar Pingali, learned Assistant Government Pleader for Services, for the petitioners and Sri B. Rajesh Kumar, learned counsel for the respondent, appearing through virtual mode.

2. The respondent - P.M. Babji was the applicant in O.A.No.2401 of 2017 before the Andhra Pradesh Administrative Tribunal, Hyderabad (in short ‘the Tribunal’). The petitioners were the respondents therein.

3. The respondent herein shall be referred to as the ‘applicant’ and the petitioners as ‘petitioners’.

4. The applicant joined in service as Police Constable on 13.07.1984. He submitted his resignation which was accepted with effect from 08.11.1994 by the Commissioner of Police, Vijayawada. Subsequently, he made a representation to the Government in the year 1998 and accepting the request as per the representation, the Government issued G.O.Ms.No.2396, Home (Police-D) Department, dated 30.11.1998 and permitted the applicant to withdraw his resignation on humanitarian grounds as a special case and directed for his reappointment as Police Constable subject to Rule 30 of the Andhra Pradesh State and Subordinate Service Rules, 1996 (in short ‘Rules 1996’). At the time of his reappointment, his pay was fixed basing on his last pay i.e., the amount last paid to the applicant prior to his resignation. At the time of retirmement of the applicant on attaining the age of superannuation, the Commissioner of Police, Vijayawada city passed the Order dated 10.05.2017 in D.O.No.457/2017/C.No.2062/A4/2017 refixing the applicant’s pay with effect from 30.06.2017 and while sending the pension papers to the District Audit Officer, State Audit, Krishna, Machilipatnam, Commissioner of Police, Vijayawada city, vide his letter dated 25.06.2017 informed that the applicant’s pay was refixed and the applicant had to pay Overdraft (in short ‘OD’) amount of Rs.12,34,303/-, which was asked to be deducted from his gratuity, commutation and pension.

5. Questioning the aforesaid action, the applicant filed O.A.No.2401 of 2017.

6. Petitioners filed their counter in the O.A. Their case was that refixation of the applicant’s pay on his reappointment was under mistake. The applicant was not entitled for refixation of pay, giving the benefit of the previous service, prior to resignation, but it being reappointment subject to Rule 30 of the Rules 1996, the service rendered prior to resignation shall be forfeited under the Government. The reappointment was to be treated as first appointment. That mistake was corrected and the applicant’s pay was refixed, vide Order dated 10.05.2017 for grant of pension and other benefits and the excess amount paid was to be recovered.

7. The Tribunal allowed the O.A.2401 of 2017 vide judgment dated 26.10.2017. It provided that so far as the fixation of pension was concerned, the applicant would be entitled for fixation of retiral benefits and pension on the basis of last drawn pay as refixed in the proceedings dated 10.05.2017, but so far as the direction by the Authority to the applicant to pay O.D. amount of Rs.12,34,303/- was concerned, the said direction could not be issued by the authorities. The Tribunal directed the petitioners not to make any recovery of the said amount from out of the retiral benefits of the applicant.

8. Challenging the aforesaid Order, dated 26.10.2017 of the Tribunal, the petitioners had filed the present writ petition.

9. Learned counsel for the petitioners submitted that the