THE HON’BLE SRI JUSTICE G.CHANDAIAH W.P.NO.1450 OF 2003 O R D E R Heard both the counsel. 2. This writ petition is filed for a writ of Mandamus to declare the action of the respondents in seeking to alter the pay fixation of the petitioner after retirement of the petitioner by proceedings no.B5/Pen/CEK/4148/2002 dated 26-11-2002, as illegal and arbitrary and further declare that the petitioner is entitled to receive her pensionary benefits based upon the letter addressed by the Principal of the College at Rs.16,525/-. 3. In the affidavit filed in support of the writ petition it is stated that the petitioner joined service on 2.9.1965 as Survey Assistant and Draughtsman in Civil Engineering Department of the Jawaharlal Nehru Technological University, Kakinada. Her services were regularized with effect from 2.9.1965. While so, the Government introduced Automatic Advancement Scheme to its employees in the year 1981 and the same was also extended to JNTU employees and accordingly the employees became entitled to 10 years, 15 years and 22 years scales. The petitioner was given the said benefit and also the subsequent pay revisions up to 1998, and as on 1.4.2002, her pay was fixed at Rs.16,525/- plus F.P.E. The petitioner retired from service on 31.8.2002 after putting in 37 years of service and as on the date of retirement, the petition was in sale of pay of Rs.8400 to Rs.16,525. The principle of the college sent proposals showing last pay drawn by her at Rs.16,525/-. However, on the objection of the State Audit, the pay of the petitioner seems to have fixed from 1.4.1981 on wards and her pay was arrived at Rs.14,425/- and not Rs.16,525/-. On that basis, the Audit Officer stated that she is entitled to a service pension of Rs.7,213/-, less commuted pension of Rs.2,885/-. The commutation was also arrived at on the basis of pay arrived at by the audit officer at Rs.14,425/- and not on the basis of pay actual drawn, which is Rs.16,525/- . Now the grievance of the petitioner is that the pay fixation made/decided earlier, cannot be arbitrarily altered either by the University or the Government, especially after retirement. Hence, she filed the writ petition. 4. The 1st respondent – J.N.T.U. represented through its Registrar, filed the counter affidavit. In the counter it is stated that the petitioner was extended the Automatic Advancement Scheme of 10 years, 14 years and 20 years scales and her pay was fixed accordingly with a condition that the fixation of her pay in the special promotion posts is subject to approval by the State Audit and in the event of defects found at a later date in her appointment and also the consequent fixation, any excess amount paid to her, will be recovered from her. Accordingly the proposals were sent to the L.F. Audit for pensionery benefits to calculate the pension and other benefits at Rs.16,525/- i.e., on the pay drawn by her at the time of her retirement. However, the State Audit has arrived the pay drawn by her at Rs.14,425/- disallowing her pay at Rs.16,525/- and her pension was fixed on the basis of her pay at Rs.14,425/-. As the Local Local Fund Audit, is the authority to approve the pensionary benefits in respect of University employees, orders were issued by the University as per eligibility communicated by the L.F. Audit. Orders were issued by the University, fixing her pensionary benefits as per the eligibility communicated by the L.F. Audit. As the Audit has disallowed the SPP-I and SPP-II scales of pay awarded to the petitioner by the University vide Lr.No.130/AO/SA/JNTU/A2/2002 dated 22.11.2002. As per the information furnished by the Principal, JNTU, College of engineering – 4th respondent, monthly pension from 1.9.2002 to 31.1.2003 amounting to Rs.27,840/- and the capitalized value of commuted portion of pension of Rs.3,62,126/- amounting to Rs.3,89,966/-, has been paid to the petitioner and the excess payments made to the petitioner, as objected by the L.F. Audit, are arrived and are under scrutiny. The retirement gratuity is kept with the office of the 4th respondent for adjustment against the said excess payments. With these averments, the writ petition was sought to be dismissed. 5. The 5th respondent – Audit Officer, filed counter affidavit. In the counter affidavit while referring to the appointment of the petitioner and the fixation of sales of pay and the retirement of the petitioner, stated inter alia that on receipt of the pension proposals from the Registrar, JNT University, the pay fixations of the individuals had been verified from the date of entry into service to the date of retirement of the individual. While verifying the pay fixations, it is noticed that the pay of the individual was erroneously fixed in Special Promotion Post-I and II sales with effect from 1.4.1981 and 2.8.1987 respectively instead of SAPP-I and II sales as there is no promotion channel to the post of Draughtsman. Due to the erroneous fixation of pay, the last pay has been arrived at Rs.16,525/- and proposals sent to this office for certification of pensionary benefits. The defective pay fixations were rectified in accordance with the orders issued in G.O.Ms.No.117, finance and Planning (FW.PRCI) Department dated 4.1.1988 and the subsequent Government orders issued from time to time and the correct pay has been arrived at Rs.14,45/- in the scale of pay of Rs.6950-14425 in RPS 1999. The eligible pensionary benefits such as service pension, retirement gratuity and commutation certified accordingly. The erroneous pay fixation, if any, can be rectified at the time of certification of pensionary benefits. It is the primary responsibility of the audit to rectify the defects. Accordingly, the pensionary benefits of the individual were certified by the Audit Officer, while certifying the pensionary benefits vide Lr.No.126/AO/SA/JNTU/A2/2002 dated 12.11.2002 the Audit Officer has requested the Registrar, JNT University to workout the excess pay and allowances paid to Smt. V.Rama Lakshmi and to recover the amount from the pensionary benefits. The Registrar while sanctioning the pensionary benefits vide Procs.NolB5/Pen/CEK/4148/2002 dated 26.11.2002 has instructed the Principal, JNTU College of Engineering, Kakinada to rectify the objections raised by the Audit Officer. Accordingly, the Principal, JNTU College of Engineering, Kakinada has effected recovery from the retirement gratuity payable to Smt. V.Rama Lakshmi, Draughtsman (Retd.). With these averments, as the pay of the petitioner was erroneously fixed, the same was rectified and hence there are not merits in the writ petition and the same was sought to be dismissed. 6. From the above material on record it could be seen that the petitioner was Draughtsman on 2.9.1965 in the JNTU College of Engineering, Kakinada and she has been absorbed into the services of the University with effect from 2.10.1972. The Government has introduced Automatic Advancement Scheme to its employees in G.O.Ms.No.117 Finance and Planning (FW.PRC.1) Department dated 25.5.1981 in the year 981 and the same was adapted by the University and as per the said scheme, the employees are entitled to 10 years, 15 years and 22 special grade scales and accordingly the pay of the petitioner was fixed and the approved by the Directorate of Local Fund Audit. Eventually, the petitioner retired from service on 31.8.2002, when she was in the scale of Rs.8400 to Rs.16,525/-. Subsequently after retirement, the officials of the State Audit raised objection stating that the payment of the petitioner was erroneoulsy fixed. In the counter affidavit it is stated that there is no promotion channel in the University to the post of Draughtsman and therefore, the petitioner was allowed special adhoc promotion – I scale and that subsequently she was also allowed higher scales, than she is eligible as per the orders of the Government, on completion of 15 years and 22 years, instead of Special Adhoc Promotion Post – I and Special Adhoc Promotion Post – II sales. The tenor of the counter affidavits filed by the respondents is that based on the proposals sent, the then Audit Officer mistakenly approved the pay fixations received by the University Authorities vide letter dated 8.8.1987 and that due to the irregular pay fixation an approximate amount of Rs.2,25,000/- was paid excess to the petitioner and that due to the erroneous fixation, her pay is arrived at Rs.16,525/- instead of at Rs.14,425/-. Along with the counter, a comparative statement indicating the pay fixations of the individuals entitled to and erroneous fixations is also submitted. 7. It is to be noticed that this court under Article 226 of the Constitution of India, cannot delve into the disputes questions of fact, more particularly with regard to the pay fixation of the individual, which is within the realm of the Local Audit Fund Office. The only grievance of the petitioner is that fixation made earlier cannot be altered after the retirement. On the other hand the case of the respondent no.5 is that the petitioner was given higher scales than the eligible scales as per the Government orders on completion of 15 years and 22 years instead of Special Adhoc Promotion Post – I and Special Adhoc Promotion Post – II scales and that the said irregularity came to be noticed in the audit at the time of certification of pensionary benefits and accordingly her pay was regulated as per the Government orders as per G.O.Ms.No.85 Finance and Planning Department dated 12.7.1999 and the eligible pensionary benefits, are certified by the audit. Therefore, with regard to the wrong fixation, this court cannot interfere. 8. But this court can examine whether such erroneous fixation is due to the misrepresentation of the petitioner or due to the fault of the authorities concerned and whether such excess payment can be recovered. 9. In the present case, as already noted above, the pay of the petitioner was fixed by the University authorities and the same were forwarded to the Local Audit Fund office for ratification. There is no material available on record to come to the conclusion that the pay of petitioner was fixed on his misrepresentation. On the other hand the case of the 5th respondent is that the proposals sent were ratified by mistake. Therefore, in these circumstances, the question arises for consideration is - whether the respondents can be permitted to recover the excess paid to the petitioner. This point was answered by the Apex Court in the decision reported in SAHIB RAM v. STATE OF HARYANA[1] wherein when the authorities sought to recover the excess payment of upgraded pay sales given, due to the wrong construction of relevant order by the authority concerned, without there being any misrepresentation by the employee, the Apex Court held that such recovery of payment already made, cannot be permitted. The relevant portion is extracted as under: “5. . . The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant.” 10. Similar view was expressed by a Division Bench of this court in W.P.No.18478 of 2004 dated 6.7.2009. The relevant portion is extracted as under for better appreciation: “18. Coming to the question of liability of recovery, it was held by the learned Tribunal, as there is no misrepresentation made by the applicants, there could not be any recoveries, particularly considering the fact that the applicants are very low paid, almost contingent workmen.” 11. Therefore, only with regard to recovery of the amount, following the judgment of the Apex Court and this court, it is held that since the excess payments were made not because of any misrepresentation of the petitioner, the same cannot be recovered at this stage. Accordingly the deduction contemplated under paragraph no.5 of the impugned proceedings No.B5/Pen/CEK/4148/2002 dated 26.11.2002 as per paragraph no.10 of the Audit Certification letter, is hereby set aside and consequently the respondents are directed consider the case of the petitioner for payment of retirement gratuity, in accordance with law and pass appropriate orders in the light of the above discussion, within a period of two months from the date of receipt of a copy of this order. 12. The writ petition is accordingly allowed to the extent indicated above. No costs. AVS ---------------------------- 13—04—2010 [1] 1995 SUPP(1) SUPREME COURT CASES 18