The Andhra Pradesh High Court has held that excess salary paid due to erroneous pay fixation upon reappointment cannot be recovered from a retired police constable, as he falls within the exceptions laid down by the Supreme Court for protection against such recoveries.
The Division Bench of Justice Ravi Nath Tilhari and Justice Challa Gunaranjan dismissed Writ Petition No. 5756 of 2021 filed by the Commissioner of Police, Vijayawada, and others, challenging the Tribunal’s decision in favour of the respondent, P. M. Babji.
Background
The respondent, P. M. Babji, originally joined service as a Police Constable on 13 July 1984 and resigned with effect from 8 November 1994. On a subsequent representation, the Government permitted him to withdraw his resignation on humanitarian grounds through G.O.Ms.No.2396 dated 30 November 1998 and allowed reappointment, subject to Rule 30 of the Andhra Pradesh State and Subordinate Service Rules, 1996.
At the time of reappointment, his salary was fixed based on his last drawn pay prior to resignation. However, at the time of his superannuation in June 2017, the Commissioner of Police issued an order on 10 May 2017 refixing his pay and instructed that an amount of ₹12,34,303 be recovered from his retiral benefits, citing it as excess payment due to erroneous pay fixation.
Tribunal Proceedings
Challenging the recovery order, Babji filed O.A. No. 2401 of 2017 before the Andhra Pradesh Administrative Tribunal, which allowed his plea. The Tribunal held that while retiral benefits could be fixed on the basis of the revised order dated 10.05.2017, no recovery of the ₹12.34 lakh overdraft amount could be made.
Petitioners’ Contentions
The Government Pleader argued that Babji’s reappointment was a fresh appointment as per Rule 30 of the 1996 Rules, which mandates forfeiture of previous service upon resignation. Thus, any fixation of pay considering previous service was erroneous and the excess amount paid was recoverable. Reliance was placed on Chandi Prasad Uniyal v. State of Uttarakhand [(2012) 8 SCC 417] and High Court of Punjab and Haryana v. Jagdev Singh [(2016) 14 SCC 267].
Respondent’s Submissions
Counsel for the respondent argued that the excess payment was not made due to any misrepresentation or fraud on Babji’s part. He was a Group-D employee and was due to retire within a year of the recovery order, and therefore protected under the exceptions laid down in State of Punjab v. Rafiq Masih.
Court’s Analysis
The High Court reiterated that recovery of excess payments is barred in certain situations, including:
- Recovery from Class III and IV employees.
- Recovery from retired employees or those retiring within one year.
- Where the employee is not at fault and has not committed fraud.
The Court cited precedents including:
- Syed Abdul Qadir v. State of Bihar
- Col. B.J. Akkara v. Govt. of India
- Thomas Daniel v. State of Kerala
It found that the respondent’s case clearly fell within the exceptions laid down in Rafiq Masih, as he was a Group-D employee and was due to retire within a year of the recovery notice. Further, there was no evidence that he had given any undertaking agreeing to refund excess amounts or had committed any fraud. The Court distinguished the case from Jagdev Singh, where such an undertaking had been given.
The Bench observed:
“The consent for refixation at the time of retirement… cannot be considered to be consent for recovery of the excess amount already paid.”
Decision
The Court upheld the Tribunal’s direction restraining recovery of ₹12.34 lakh from the respondent and dismissed the writ petition. It held that Rule 30 of the 1996 Rules was of no assistance to the petitioners in justifying the recovery, as the mistake in pay fixation was not attributable to the respondent.
“The excess amounts paid to the applicant/respondent, in our view, cannot be recovered.”
Case Title: The Commissioner of Police, Vijayawada & Others vs. P. M. Babji
Case No.: W.P. No. 5756 of 2021
