Recovery of excess pay from Group C/D employees impermissible after 5 years without fraud, per Rafiq Masih, regardless of later re-classification.

ORDER :

P.VELMURUGAN, J.

The petitioner has instituted the present Writ Petition assailing the order dated 02.03.2023 passed by the first respondent-Tribunal in O.A.No.589 of 2020 and seeking a consequential direction to the respondents to place her case before the Department of Expenditure for obtaining express approval for waiver, on par with the treatment extended to Shri Kannan, Stenographer Grade-I, Doordarshan, Chennai, under Office Memorandum dated 02.03.2016.

2. The petitioner was initially appointed as Stenographer Grade-III (Tamil) on 20.06.1992 in a temporary capacity. Subsequently, she was regularised and placed on probation for two years. Thereafter, she was granted the first financial upgradation under the ACP Scheme with effect from 15.06.2004, pursuant to which, her designation was upgraded to Stenographer Grade II. By notification dated 07.12.2017, the post of Stenographer Grade II was classified under Group ‘C’. Her pay was initially fixed in terms of the VI Central Pay Commission by adopting the upgraded scale of Rs.6500-10500, with effect from 01.01.2006. Subsequently, by proceedings dated 03.10.2012, her pay was re-fixed by taking into account the upgraded scale of Rs.6500- 10500 for determining the basic pay in the revised pay band, which was also affirmed by the Prasar Bharati Secretariat. Thereafter, a clarification dated 31.12.2015, mandated multiplication of the existing pay by a factor of 1.86 (the fitment formula under the Sixth Pay Commission) with rounding off, resulting in further re-fixation on 27.01.2016, whereby the petitioner’s basic pay was reduced from Rs.12,090/- to Rs.10,230/-. Aggrieved thereby, the petitioner submitted representations relying upon judicial precedents and orders of the Tribunal, wherein the recovery of excess payment had been waived in analogous circumstances. Notwithstanding the same, the sixth respondent issued a show cause notice on 06.11.2020, proposing recovery of Rs.6,24,984/- and by order dated 14.12.2020, directed recovery in 36 installments. The petitioner’s challenge before the Tribunal in O.A.No.589 of 2020 was dismissed on 02.03.2023. Hence, she has filed the present writ petition.

3. The learned counsel for the petitioner contended that the recovery directed against the petitioner is unsustainable in law, being contrary to the binding principles laid down by the Hon’ble Supreme Court in State of Punjab v. Rafiq Masih (White Washer) [(2015) 4 SCC 334], wherein it has been held that recovery of excess payments from Group ‘C’ and Group ‘D’ employees is impermissible, in the absence of misrepresentation or fraud, particularly when such recovery is sought after a lapse of five years. He further submitted that at the time of re-fixation on 03.10.2012, the petitioner was a Group ‘C’ employee, and the subsequent reclassification of her post as Group ‘B’ cannot retrospectively deprive her of the protection extended under the Rafiq Masih (White Washer) case. Further, the recovery has been ordered after more than eight years of continuous payment, which is well beyond the permissible five- year period, and that the relevant date for reckoning such limitation is the date of order of recovery and, not the date of re-fixation. The petitioner had acted bona fidely, and the excess payment arose solely on account of the inconsistent and contradictory stands of the respondents. It is also contended that the reliance placed on the undertaking furnished in 2008 is legally untenable, since no undertaking was given at the time of re-fixation in 2012, thereby rendering the decision in the case of High Court of Punjab & Haryana v. Jagdev Singh [(2016) 14 SCC 267] is inapplicable, sinc