IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FIFTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND THE HON'BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION No.4761 of 2004 Between: 1. The Government of A.P. Rep. By its Secretary to Government, Environment, Forests, Science & Technology Department, Secretariat, Hyderabad, and others. … PETITIONERS And Sri V. Krishna Murthy, S/o.V. Venkatanarsaiah, Superintendent, O/o. Prl.Chief Conservator of Forests, Aranya Bhavan, A.P., Hyderabad. … RESPONDENT Counsel for Petitioners: G.P. for Services-I Counsel for respondents: Sri Meher Chand Nori. This Court made the following: ORDER: - (per the Hon’ble Sri Justice A.Gopal Reddy) The petitioners filed this writ petition under Article 226 of the Constitution of India, calling upon the respondent to show cause as to why a writ in the nature of Certiorari shall not be issued, after calling for the records pertaining to O.A.No.2962 of 2003 dated 29.08.2003 on the file of A.P. Administrative Tribunal and to quash the same. The respondent herein was appointed to the Special Grade Post w.e.f., 24.04.1984 in the cadre of Senior Assistant. His annual grade increment due on 1.05.1984 was released. On his appointment to Special Promotion Post Scale-II w.e.f., 24.04.1998 his annual increment due was released on 1.05.1998 i.e., even before the completion of one year, since his appointment to Scale-II was in terms of G.O.(P).No.290, Fin & Plg., (FW:PX.II) Department, dated 22.07.1993. His annual increment was released on 1.05.1998 erroneously instead of 24.04.1999 i.e., on completion of one-year service from the date of appointment to Special Promotion Post Scale- II. On completion of 24 years of service by the respondent he was sanctioned one increment w.e.f., 24.04.1998 raising his pay from Rs.4140/- to Rs.4270/-. The subsequent increment of the respondent was also released w.e.f., 1.05.1998 raising his pay from Rs.4270/- to Rs.4400/-. In the sanction letter vide proceedings No.5039/98/B5, dated 1.08.1998 he was informed that if any erroneous pay fixation is found afterwards resulting in excess payment, the pay fixation will be revised and excess amount will be recovered from him without any notice. The Audit Party of the Accountant General, while auditing the accounts of the office of the Principal Chief Conservator of Forests, has objected for release of increment of the respondent w.e.f., 1.05.1998 i.e., before completion of one year service in Special Promotion Post Scale-II, as it is not in consonance with clause laid down in para 4(IX) of the G.O.(P).No.290, Fin & Plg., (FW:PX.II) Department, dated 22.07.1993, and advised the Drawing and Disbursing Officer to recover the excess amount paid to the respondent. The Accounts Officer of the third petitioner herein vide proceedings No.11751/2003/B5, dated 1.05.2003 ordered for recovery of excess payment made to the respondent from 1.05.1998 to 31.03.2003 after fixation of Special Promotion Post Scale-II, in ten monthly instalments. Questioning the said recovery proceedings, the respondent filed O.A.No.2962 of 2003 before the A.P. Administrative Tribunal and obtained interim suspension of the impugned proceedings. In the said O.A. the petitioners herein filed counter affidavit opposing the O.A, contending that the applicant’s normal increment before appointment to Special Promotion Post Scale was on 1.05.1998. Since he was appointed to Special Promotion Post Scale-II on 24.04.1998 his date of next increment shall fall due on completion of one year of service on 24.04.1999 and not on 1.05.1998. But his next increment in Special Promotion Post Scale was released on 1.05.1998 itself, i.e., seven days after appointment to Special Promotion Post Scale-II, which was found to be not correct by Accountant General in terms of Para 4(IX) of G.O.(P).No.290, Fin & Plg., (FW:PX.II) Department, dated 22.07.1993. Thus release of increment on 1.05.1998 before completion of one year of service in Special Promotion Post Scale-II has resulted in excess payment and the same is liable to be recovered. The Tribunal by the impugned order dated 29.08.2003 after following the judgment of Supreme Court in Sahib Ram v. State of Haryana[1] and Sham Babu Verma v. Union of India[2], observed that the respondent/applicant is not responsible for erroneous pay fixation and the said fixation was not due to the misrepresentation made by the applicant. The applicant was allowed to enjoy the pay scales for a period of five years, and the erroneous fixation was noticed only on Audit party pointing out the same. Therefore, the applicant cannot be penalised by way of recovering the amount. Accordingly, the Tribunal allowed the O.A. setting aside the proceedings No.11751/03/B5, dated 1.05.2003 as far as recovery of the amount was concerned. Questioning the correctness of the same, the present writ petition is filed. This Court by order dated 17.03.2004 stayed the recovery of excess amount paid by the petitioners to the respondent and directed to post the writ petition for hearing, since the respondent was due to retire from service on attaining superannuation on 31.07.2004. It is submitted by the learned counsel for the petitioners and learned Government Pleader for the petitioners that the applicant has already retired from service and his pension has not yet been fixed. Recently, the Supreme Court in Syed Abdul Qadir v. State of Bihar[3] after scanning a catena of decisions, granted the relief against the recovery of excess payment of emoluments/allowances holding that the excess amount cannot be recovered a) if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee; b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of Rule/Order, which is subsequently found to be erroneous. When it is proved that the employee had knowledge that the payment received by him was in excess of what was due, or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the Courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. It is not in dispute that the recovery as such was ordered by the impugned proceedings dated 1.05.2003 and the respondent/employee has retired from service on 31.07.2004 i.e., within 14 months from the date of such recovery is ordered, which not only cause hardship to the respondent/employee, but he has to clear the financial obligations to lead peaceful life after retirement. In view of the same, the impugned order passed by the Tribunal in exercise of equitable jurisdiction, does not suffer from any manifest illegality warranting interference of this Court. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. _____________________ (A.GOPAL REDDY, J.) ___________________ (G. CHANDRAIAH, J.) 13th November, 2009. Js. [1] 1995 Supp. (1) SCC 18 [2] 1994 Suppl. (2) SCC 521 [3] (2009) 3 SCC 475