IMPORTANT POINT
Recovery of overpayments made to employees posthumously is unjustified if there is no misrepresentation or fraud, and if the overpayment results from erroneous interpretations of applicable rules.

JUDGMENT/ORDER

A.S. CHANDURKAR, J. - Challenge raised in this writ petition is to the communication dtd. 31/5/2013 issued by the respondent no.4-Principal of the College where the wife of the present petitioner was serving as Lecturer in the subject of English. During pendency of the writ petition the original petitioner expired and her husband has been brought on record as her legal heir. By amending the writ petition, a challenge is also raised to the recovery of amount of Rs.5, 56, 477.00 which according to the respondent no.2-Joint Director, Higher Education Department, Amravati was as a result of excess payment made to the original petitioner by incorrectly determining the date for entitlement to benefit of senior grade and selection grade pay-scale.

2. The facts relevant for considering the challenge as raised are that the original petitioner was appointed as Lecturer in English on 22/11/1993 and her appointment was approved on 20/3/1997. The original petitioner acquired Ph.D. qualification on 16/10/2003. She was granted benefit of selection grade from 1/8/2007 and her pay fixation was approved on 1/7/2009. The original petitioner was to superannuate at the age of 60 years on 30/6/2011. However, in view of the Government Resolution dtd. 1/9/2012 she became entitled to continue in service till the age of 62 years. Accordingly, the original petitioner was again permitted to join in service on 12/9/2012 and was to superannuate on 30/6/2013 when she would have attained the age of 62 years. A notice to that effect was issued by the fourth respondent on 31/5/2013. Unfortunately, the original petitioner expired on 20/6/2013 before attaining the age of 62 years. Thereafter on 24/7/2013 the Joint Director of Higher Education issued a communication to the College stating therein that since the original petitioner obtained Ph.D. qualification on 16/10/2003, she would be entitled for senior grade pay-scale of 15600-39100 with Grade Pay of Rs.7000.00 on 16/10/2007. It was further stated that the original petitioner would be entitled for selection grade pay-scale of 15600-39100 with Grade Pay of Rs.8000.00 from 16/10/2012. Since such benefit was granted from an earlier date, it was directed that the College should determine the amount of over payment as made and submit the calculations in that regard. For that purpose, the original service book was returned to the Principal. Acting on the aforesaid basis, amount of Rs.5, 56, 477.00 was found to be the amount of over payment and the same was recovered from the retiral benefits of the original petitioner. It is in this factual backdrop that the writ petition is required to be adjudicated.

3. Ms Gauri Venkatraman, learned counsel for the petitioner submitted that the action of recovery of Rs.5, 56, 477.00 from the service benefits of the original petitioner was highly unjustified. These benefits were given to the original petitioner in accordance with law after considering the relevant executive instructions by a duly constituted Committee in that regard. The original petitioner received the said benefits for the entire service career during her life time. The recovery made was after her death and such recovery was not permissible in the light of the law laid down by the Hon'ble Supreme Court in Syed Abdul Qadir and others vs. State of Bihar and others (2009) 3 SCC 475. The original petitioner could not be blamed for receiving such amounts and there was no allegation that there was any misrepresentation made or fraud practised by the original petitioner. It was further submitted that the respondents were not justified in relying upon the Government Resolution dtd. 18/10/2001 when in fact, the earlier Government Resolution dtd. 11/12/1999 was applicable to the facts of the present case. After considering the relevant Government Resolution the service book had been corrected and therefore there was no justification on the part of the respondents in initiating the impugned action. On the con