THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE VILAS V. AFZUL PURKAR W.P.Nos.24672, 24855, 24469, 24718, 24723, 25656, 25784, 25952, 24922 and 24461 of 2009 Date of Order: 05-03-2010 WP NO.24672/2009 Between: L. Rajendra Prasad ..Petitioner And 1. The High Court of Andhra Pradesh, represented by its Registrar (Administration), High Court of A.P. Hyderabad, and others. ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE VILAS V. AFZUL PURKAR W.P.Nos.24672, 24855, 24469, 24718, 24723, 25656, 25784, 25952, 24922 and 24461 of 2009 COMMON ORDER: (Per Hon’ble Sri Justice A.Gopal Reddy) All these writ petitions are filed challenging the orders of the High Court in ROC No.12005/2008-2009-Estt-1, dated 3-11-2009 ordering recovery of the excess amount drawn by 14 employees towards advance increment on acquiring graduation qualification. Hence, they are heard together and disposed of by this common order. The short résumé of the facts relevant for the purpose of determination of the issue involved in all the writ petitions may be stated thus: One Smt. B.Radha, Section Officer, High Court of Andhra Pradesh made a representation on 13-10-2008 claiming monetary benefit on par with Sri J.P.Virupaksha Reddy, Deputy Section Officer, who is junior to her, and requested to rectify the pay anomaly. While considering the said representation, the Section Officer observed that an additional increment was sanctioned to Sri J.P.Virupaksha Reddy, Deputy Section Officer in the Revised Pay Scales of 1986, in addition to one graduation increment, already sanctioned to him at the time of his appointment and subsequent drawal of Dearness Allowance drawn in the Revised Pay Scales of 1986 and 1992, Sri J.P.Virupaksha Reddy, writ petitioner in WP No.25784/2009 has been drawing more pay than Smt. B. Radha, though he is junior to her ie., Smt.B. Radha. On the report of the Section Officer, a show cause notice dt.8-6-2009 was issued to Sri J.P.Virupaksha Reddy, as to why the excess amount drawn by him towards graduation increment in the Revised Pay Scales of 1986 should not be recovered from his pay and why his pay should not be revised as per the said pay scales. Sri J.P.Virupaksha Reddy, submitted his explanation on 18-5-2009 stating that the advance increment towards his graduation qualification at Rs.10/- was merged in his pay at the time of his appointment and his pay was fixed at Rs.435/- ie., Rs.425/- + Rs.10/- as per the Revised Pay Scales of 1986. He further stated that certain employees who are juniors to him have filed W.P.No.8483/92 and as per the judgment of the High Court, the petitioners in the writ petition were sanctioned one advance increment and their pay was fixed at Rs.910/- + Rs.30/- towards advance increment for graduation, and subsequently his pay was equalled on par with his juniors along with 15 other staff members. On receipt of the explanation from Sri J.P.Virupaksha Reddy, the High Court decided to issue show cause notices to 13 others, who have drawn advance increment towards graduation and accordingly issued show cause notices dt. 6-7-2009 to them. After considering the explanation offered by the above 13 employees, who have drawn advance increment and also considering the entire matter, the High Court issued the impugned orders dt. 3-11-2009 ordering recovery of the excess amount drawn and paid to the above employees towards advance increment for graduation. Questioning the same, the present writ petitions are filed contending that the petitioners are not aware about the amount, which was paid to them from 1986, was an excess amount and it was wrongly paid to them. They were under the bona fide belief that Rs.30/- per month which was paid to them from 1992 w.e.f. 1-7-1986 till today was paid to ensure that they shall not draw less pay than that of their juniors. There was never any misrepresentation or fraud on the part of the petitioners at any point of time. Even if the petitioners were wrongly paid the amount since 1-7- 1986 till today for a period of more than 23 years, it would be unjust to recover the said amount from the petitioners. A detailed counter-affidavit has been filed by the respondents 1 and 2 stating that on the representation made by Smt.B.Radha, erroneous fixation that was made to certain employees was noticed and accordingly show cause notices were issued and impugned orders were passed ordering recovery of the excess amount drawn and paid to them, which in fact they are not entitled to. It is further stated that all the writ petitioners availed the benefit of advance increments for their graduation qualification at the time of their joining/on acquiring graduation qualification and the same was merged in their pay while fixing their pay in the Revised Pay Scales of 1986, therefore, they are not entitled to claim one more additional graduation increment on the premise that the writ petitioners in W.P.No.8483/1992 have been granted the benefit. As the amounts were paid at the behest of the writ petitioners, who had knowledge that the pay was already fixed by granting advance increments for graduation and the same was merged in the Revised Pay Scales of 1986, the same is liable to be recovered. Sri M. S.Ramachandra Rao, learned counsel for the petitioner in all the writ petitions while fairly conceding that the petitioners are not entitled to one more additional graduation increment when they are already granted the said increment and the same was merged in the Revised Pay Scales of 1986, submitted that at any point of time, the petitioners have not made any representation for grant of advance increment on their acquiring graduation qualification and drawing the same since last 23 years was not in the knowledge that the amount received was in excess of what they entitled to and the same cannot be recovered as held by the Supreme Court in SYED ABDUL QUADIR V. STATE OF BIHAR[1] Per contra, Sri G. Vidya Sagar, Learned Standing Counsel for High Court of Andhra Pradesh contended that the petitioners had knowledge that their pay was already fixed by granting advance increment for graduation, which was merged in the Revised Pay Scales of 1986, for which they are not entitled to and the same can be recovered. In view of the same, the impugned orders passed by the High Court do not call for any interference. In view of the rival submissions, the only point that arises for consideration in all these writ petitions is: Whether the excess amount paid towards advance increment for graduation to the writ petitioners is liable to be recovered or not? In the show cause notices dt. 6-7-2009 issued to the petitioners, it is only stated that the petitioners have been granted graduation increments at the time of their joining service and they were again granted graduation increment in the Revised Pay Scales of 1986 and they were drawn allowances on such increment and the benefit of excess increment and the allowances thereon has been reflected in the subsequent pay revisions, and the petitioners were called upon to show cause as to why the excess graduation increment drawn by them in the Revised Pay Scales of 1986 and the allowances on such increment should not be recovered from them. But in the show cause notices, it is no-where stated that the amounts were paid at the behest of the writ petitioners on their misrepresentation. In SYED ABDUL QADIR (1 supra) the Supreme Court held that undoubtedly, the excess amount that has been paid to the appellants-teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would be out of place to mention that the Finance Department had, in its counter-affidavit admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Therefore, the Supreme Court was of the view that no recovery of the amount that has been paid in excess to the appellant-teachers should be made. Similarly, this court in WP No.23451/2008 and batch, where Government has taken the policy decision for discontinuing the advance increments pursuant to the recommendations of PRC, towards advance increments for higher qualifications granted with effect from 1-7-1998, directed that the amounts already paid up to 17- 3-2007 towards advance increment/family planning incentive increments shall not be recovered from the employees and further made it clear that from 17-3-2007 if any advance increments are granted to the employees, the Government is at liberty to recover the same. Learned Standing Counsel for the High Court has not pointed out that after petitioners’ pay was fixed by granting advance increment for graduation and merger of the same in the Revised Pay Scales of 1986, again granting graduation increment was on the misrepresentation of the petitioners, for which they are not entitled to. In view of the same, the impugned orders passed by the High Court of Andhra Pradesh dt. 3-11-2009 ordering recovery of excess amount drawn and paid to the employees towards advance increment for graduation are set-aside. However, it is made clear that all the petitioners are not entitled to draw advance increments from the date of issuance of show cause notices ie., 26-7-2009 onwards, and if any excess amount paid after issuance of show cause notices dt. 26-7- 2009, the High Court is entitled to recover the same. The writ petition are accordingly allowed. There shall be no order as to costs. _________________ A.GOPAL REDDY, J. ____________​__________ VILAS V AFZUL PURKAR, J. 05-03-2010 KMR [1] (2009) 3 SCC 475