Unilateral recovery of excess allowances from bona fide employee without notice or fraud is impermissible and violates natural justice.

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -

a) “allow the instant Original Application;

b) to set aside and quash the Order No. HΜΕ-Acct/147/2023-02 dated 17.08.2023 and the endorsement made on the Last Pay Certificate (LPC) of the applicant, whereby recovery has been ordered for an amount of Rs 4,85,800/-, on account of alleged excess payment of Non-Practicing Allowance (NPA), as the said action has been taken in violation of the principles of arbitrary, natural justice is and unconstitutional, and discriminatory;

c) direct the respondents to release the salary to the applicant without any deductions or delays; ,

d) further prayer to stay the operation of the impugned Order No. HME-Acct/147/2023-02 dated 17.08.2023 and the endorsement made on the Last Pay Certificate (LPC) of the applicant, whereby recovery has been ordered for an amount of Rs 4,85,800/-, on account of alleged excess payment of Non- Practicing Allowance (NPA).

e) pass any other order or grant any other relief that this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case, in the interest of justice.

2. The facts of the case as averred by the applicant in her pleadings, are as follows: -

a) The applicant, Dr. Saima Javed, is a permanent resident of the Union Territory of Jammu & Kashmir and is serving as a Medical Officer under the Health and Medical Education Department, Government of Jammu & Kashmir. She was appointed substantively against a regular post and was in continuous government service at the relevant time.

b) The Board of Professional Entrance Examination (BOPEE) issued Advertisement Notification No. 009-BOPEE of 2020 dated 03.05.2020, inviting applications for admission to Post- Graduate Degree/Diploma Courses in various medical colleges of the Union Territory of Jammu & Kashmir. The applicant, being an in-service Medical Officer, applied under the in- service quota and was duly selected for admission to the M.S. (ENT) course.

c) Consequent upon her selection, the applicant was relieved from her parent department and directed to report to Government Medical College, Jammu, for pursuing her Post-Graduate Medical Course. At all material times, the applicant continued to remain under the administrative control of the Health and Medical Education Department and did not sever her relationship with government service.

d) It is the specific case of the applicant that, being an in-service candidate pursuing Post-Graduate studies, she was entitled to draw the same pay and allowances as were admissible to her , prior to joining the PG course, in terms of the applicable Government Orders and settled legal position. Accordingly, the applicant submitted representations seeking release of her salary and allowances.

e) However, despite her entitlement, the applicant was denied salary and allowances during the period of her Post-Graduate studies. Aggrieved thereby, the applicant, along with similarly situated doctors, approached this Tribunal by filing O.A. No. 61/1506/2022. This Tribunal, vide order dated 01.11.2022, disposed of the said Original Application with a direction to the respondents to treat the application as a representation and to decide the claim for treating the PG period as deputation and for release of salary and allowances by passing a reasoned and speaking order within a stipulated time.

f) The said order of the Tribunal was duly communicated to the respo