IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 17912 of 2004 Between: 1 Government of Andhra Pradesh, represented by its Secretary, Education Department, Secretariat Buildings, Hyderabad. 2 The Audit Officer, Local Funds, Kurnool, Kurnool District. 3 The Mandal Parishad Educational Officer, Mandal Parishad, Chagalamarri, Kurnool district. ..... PETITIONERS AND Sri E.Venkata Subba Reddy, New Buildings, Chagalamarri, Allagadda Taluk, Kurnool District. .....RESPONDENT Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly one in the nature of writ of "certiorari" and calling for the records relating to the order passed in OA No.7920/2000, dated 03.02.2004 on the file of the Honourable A.P. Administrative Tribunal, Hyderabad, and quash the same as illegal, arbitrary and pass Counsel for the Petitioner: GP FOR SERVICES I Counsel for the Respondent No.: . The Court made the following : THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.17912 OF 2004 O R D E R (Per GM,J) This writ petition is filed against the order dated 03.02.2004 rendered by the Andhra Pradesh Administrative Tribunal, Hyderabad (for brevity, ‘the Tribunal) in O.A. No.7920 of 2000. By the said order, the Tribunal held that no recovery can be made from the applicant in the O.A. and ordered payment of the alleged excess amount recovered from him earlier, within three months. For the sake of convenience, the parties hereto are referred as per their array before the Tribunal. The brief facts of the case are as follows: The applicant is a retired Secondary Grade Teacher. The third respondent, namely, the Mandal Educational Officer, Mandal Parishad, Chagalamarri, Kurnool District, while fixing the applicant’s pension at Rs.5,300/-, gratuity at Rs.1,74,900/- and the commutation at the rate of 40%, forwarded the pension proposals to the second respondent, namely, the Audit Officer, Local Funds, Kurnool, Kurnool District. The second respondent took an objection as to the preponement pay fixation made qua the applicant on par with his juniors on 01.12.1982 at Rs.730/- in the scale of Rs.700-1200 which was made in term of G.O.MsNo.1064, Education Department, dated 10.07.1997. Subsequently, G.O.Rt.No.1577, Education Department, dated 01.11.1997 was issued keeping G.O.Ms.No.1064 dated 10.07.1997 in abeyance. However, there was no mention in the said G.O. as to the recovery of the amount paid in view of the pay fixation made on the basis of the earlier G.O.Ms.No.1064 dated 10.07.1997. Thereafter G.O.Ms.No.79, Education, dated 03.07.2001 was issued cancelling the abeyance orders issued in G.O.Rt.No.1577 dated 01.11.1997. In the meanwhile, the third respondent calculated the alleged excess amount paid to the applicant as per the instructions of the second respondent, quantified at Rs.52,277/-. The respondents then refixed the retirement benefits and recovered the alleged excess amount paid to the applicant, being Rs.52,277/-, from his retirement benefits without issuing any notice or affording opportunity to him. Aggrieved thereby, the applicant filed O.A.No.7920 of 2000 before the Tribunal. The Tribunal, having considered the material placed before it and the fact that no counter affidavit was filed in the O.A., held inter alia that the recovery could not be made from the applicant and that the amount recovered should be paid to him within a period of three months from the date of receipt of a copy of that order. Challenging the said order, the instant writ petition is filed. Heard the learned Government Pleader for Services-II appearing for the writ petitioners and Sri Vijay Kumar, the learned counsel for the respondent/applicant. The learned Government Pleader for Services-II contended that as the amounts were drawn by the respondents and paid to the applicant as per G.O.Ms.No.1064 dated 10.07.1997, but when the said G.O. was kept in abeyance vide the subsequent G.O.Rt.No.1577 dated 01.11.1997, the applicant was not entitled to the benefits enumerated in G.O.Ms.No.1064 dated 10.07.1997. He submitted that the applicant could not be allowed to enrich himself unlawfully as he was paid excess amount in view of the wrong pay fixation and therefore the respondents are entitled to recover the excess amount so paid to the applicant from his retirement benefits. He submitted that the Tribunal had failed to consider these aspects in a proper perspective and erroneously held that the recovery should not be made; directing that the recovered amount should be paid to the applicant. He therefore prayed that the impugned order passed by the Tribunal may be quashed and the writ petition be allowed. On the other hand, the learned counsel for the applicant submitted that when there was no mention as to the recovery of the alleged excess amount paid to the applicant in the subsequent G.O.Rt.No.1577 dated 01.11.1997, which kept the earlier G.O.Ms.No.1064 dated 10.07.1997 in abeyance, the respondents were not entitled to effect recovery from the applicant. He further contended that there was no misrepresentation on the part of the applicant nor was any fraud played by him in the matter. He submitted that the Tribunal considered all these aspects carefully and held that the recovery should not be made and consequently, the amount recovered shall be paid to the applicant within three months. He further submitted that the well-reasoned order passed by the Tribunal did not call for any interference by this Court and prayed that the writ petition be dismissed. In view of the rival contentions, the point that arises for our consideration is as to whether the impugned order passed by the Tribunal calls for any interference by this Court? We have perused the impugned order and the material placed before us. It is clear from the record that the pay fixation of the applicant was made in terms of G.O.Ms.No.1064 dated 10.07.1997 which was subsequently kept in abeyance for some time vide G.O.Rt.No.1577 dated 01.11.1997. A perusal of G.O.Rt.No.1577 dated 01.11.1997 clearly shows that when it was represented to the Government that the orders issued in G.O.Ms.No.1064 dated 10.07.1997 were being misinterpreted entailing substantial expenditure of Government funds by individuals withdrawing huge sums, though not strictly eligible for the same, the Government decided to re-examine the issue in its entirety and kept the orders issued in G.O.Ms.No.1064 dated 10.07.1997 in abeyance until further orders. Later, the abeyance orders issued in G.O.Rt.No.1577 dated 01.11.1997 were cancelled by issuing G.O.Ms.No.79 dated 03.07.2001. There was no mention in G.O.Rt.No.1577 dated 01.11.1997 as to the recovery of the alleged amounts excessively paid to the beneficiaries. Be that as it may, the respondents recovered the alleged excess amount of Rs.52,277/- from the retirement benefits of the applicant. Furthermore, the respondents before recovering the alleged excess amount from the applicant, did not even issue a notice and no opportunity was afforded to him so as to enable him to put forth his claim before the respondents. It is also clear from the record that there was no misrepresentation on the part of the applicant and he never played any fraud on the respondents in claiming the alleged excess amount. In this connection, reference may be made to the Judgment of the Supreme Court in STATE OF BIHAR V/s. PANDEY JAGDISHWAR PRASAD[1], wherein it was inter alia held, placing reliance upon it’s earlier Judgments, as follows: “It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee.” The Tribunal considered all the aspects and arrived at the correct conclusion. The Tribunal has not committed any jurisdictional error and did not exceed its jurisdiction, so as to warrant exercise of certiorari jurisdiction under Article 226 of the Constitution of India. In view of the above Judgment of the Apex Court and having due regard to the facts and circumstances of the case, we do not find any reason, much less a valid reason, to interfere with the impugned order passed by the Tribunal. For the foregoing reasons, the Writ Petition fails and is accordingly dismissed. As a sequel thereto, the respondents/writ petitioners are directed to pay the alleged excess amount recovered from the applicant/Respondent’s retiral benefits to him as early as possible, preferably within a period of three months from the date of receipt of a copy of this order. In the facts and circumstances of the case, there shall be no order as to costs. ___________________________ GHULAM MOHAMMED, J. _____________________ SANJAY KUMAR, J. 3rd MARCH, 2009. VGSR / PGS [1] 2008 JT (12) 564