ORDER

23.07.2024 01. 1.

This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard Mr. D.P. Dash, learned counsel for the Petitioner and Mr. B. Mohanty, learned Addl. Govt.

Advocate for the State.

3. Petitioner has filed the present Writ Petition inter alia challenging the communication issued by the Controller of Accounts-O.P. No.3 on dtd.05.02.2024 under Annexure-6. Vide the said communication, O.P.

No.3 has requested O.P. No.2 to withdraw the benefit of MACP so allowed in favour of the petitioner w.e.f.

01.01.2016 vide order issued on 02.03.2019 under Annexure-3 on the ground that petitioner is not eligible to get the benefit in terms of the resolution issued by the // 2 // Govt. in the Department of Higher Education on 22.12.2017 under Annexure-7.

4. Learned counsel for the Petitioner contended that petitioner while continuing as Junior Clerk in the College in question, he was extended with the benefit of MACP w.e.f. 01.01.2016 vide office order dated 02.03.2019 as reflected in Annexure-3. It is contended that while in receipt of the benefit, petitioner retired from his services on attaining the age of superannuation on 31.05.2023.

But after his retirement when his pension papers were submitted, O.P. No.3 while issuing Annexure-6, has raised objection with regard to entitlement of the petitioner to get the benefit of MACP w.e.f. 01.01.2016 and with a direction to withdraw the benefit and recovery of the excess amount drawn by the petitioner.

4. 1. Learned counsel for the petitioner contended that he has no grievance with regard to the objection raised by O.P. No.3 under Annexure-6 for withdrawal of the benefit of MACP so sanctioned w.e.f. 01.01.2016, save and except the recovery which the petitioner may be asked to make after withdrawal of the benefit so sanctioned vide order under Annexure-3. It is further contended that since without any fault of the petitioner, he got the benefit w.e.f. 01.01.2016 vide order dated 02.03.2019 and in the meantime he has already retired from his services on attaining the age of superannuation on

31.05.2023, no recovery can be made in view of the // 3 // decision of the Hon’ble Apex Court in the case of State of Punjab Vs. Rafiq Masih so followed in the case of Thomas Daniel Vs. State of Kerala & Others . Hon’ble Apex Court in Para-18 of the judgment in the case of Rafiq Masih and in Para-18 of the judgment in the case of Thomas Daniel has held as follows:-

xxx xxx xxx “18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. But that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.

// 4 // xxxx xxxx xxxx It is not possible to postulate all situations of hards