Recovery of excess pay from public servants, especially Class III and IV employees, should not be resorted to after a period of five years, as it would be iniquitous and arbitrary, and would breach the mandate contained in Article 14 of the Constitution of India.

JUDGMENT

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorarified Mandamus, calling for the records relating to the orders in (1) Government letter No.29112/OS/2014-8, Agriculture (OS) Department, dated 16.09.2015 of the first respondent and (2) Lr.No.Pen.7/II/10714001/Retd/15-16/361, dated 09.12.2015 of the 4th respondent and Pro.Na.Ka.No.53346/A2/2015/Ve.Vi- P, dated 26.07.2016 and Na.Ka.No.53346/A2/2015/Ve.Vi-P, dated 27.07.2016 of the second respondent and to quash the same and to issue consequential directions to the respondents to restore the Selection Grade of the Petitioner as Assistant from 14.02.2006 and desist from recovering any amount from his DCRG and further direct the respondents to grant forthwith all retirement and pensionary benefits to the petitioner and disburse all arrears with interest within a time frame.)

(1) The writ petition has been filed in the nature of a certiorarified mandamus seeking records relating to the orders of the 1st respondent dated 16.09.2015 and of the 4th respondent dated 26.07.2016 and of the 2nd respondent dated 27.07.2016 and to quash the same and to direct the respondents to restore the selection grade of the petitioner as Assistant from 14.02.2006 and to quash the order directing recovery of amount from DCRG amount of the petitioner herein. The petitioner also seeks grant of all retirement and pensionary benefits to the petitioner along with arrears.

(2) The petitioner had joined the service on 22.05.2005 in the Tamil Nadu Cooperative Oil Seeds Growers Federation Limited [TANCOF]. The petitioner was then absorbed in the Agricultural Extension Wing of the Department of Agriculture from 01.04.2002. He had been earlier promoted as Assistant on 14.02.1996 in TANCOF and had been granted Selection Grade from 13.02.2006 with effect from 14.02.2006 by proceedings dated 20.03.2007. He was drawing Selection Grade of Pay till 30.09.2015 when he retired from service on attaining the age of superannuation. Thereafter, the respondents had forwarded the pension proposals to the Accountant General [A&E], Tamil Nadu, by a letter dated 05.10.2015. It was returned and the correspondences were going to and fro for sanction of pension. Finally, the Impugned Order came to be passed claiming that the petitioner was not entitled for Selection Grade pay and that therefore, having been granted Selection Grade of pay with effect from 14.02.2006, the excess pay paid to him should be recovered. The pensionary benefits of the petitioner had also not been released. Questioning these orders passed, the writ petitioner had filed the present writ petition.

(3) The learned counsel for the petitioner placed very strong reliance on the judgment of the Hon''ble Supreme Court reported in 2015 [4] SCC 334 [State of Punjab Vs. Rafiq Masiah [White Washer case]], which had been quite often used whenever there is recovery of amounts already drawn by a public servant. The Hon''ble Supreme Court had examined various categories of such recovery and had laid emphasis on the fact that the recovery should normally be within a period of five years. It was also stated that if it is after more than five years and if the same had accumulated, then such recovery would be iniquitous and would place a burden on the public servant.

(4) It was also held that recovery should not be normally resorted after five years after the date of retirement of the public servant unless it is being glaringly found that owing to misrepresentations given by the Government servant, excess pay had been drawn by him. In the instant case, records are clear. The petitioner had not misrepresented seeking grant of Selection Grade, but, rather Selection Grade had been granted by the respondents themselves by proceedings in Rc.AEW/Estt/240/A1/2006 dated 30.03.2007 passed by the Production Officer, Agricultural Extension Wing, Department of Agriculture, Chennai. Therefore, consciously Selection Grade