Sri K H Thippeshappa Vs the State of Karnataka

SRI. K. H. THIPPESHAPPA S/O. LATE HANUMANTHAPPA AGED ABOUT 61 YEARS, RETIRED ASSISTANT MASTER, GOVERNMENT JUNIOR PRIMARY SCHOOL, RAGIBASAVANAHALLI, RESIDING AT KUNTINAVADU VILLAGE, AMRITHAPURA POST TARIKERE TALUK – 577 228 CHICKMAGALUR DIST.

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Digitally Signed by REKHA R Location : High Court of Karnataka

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…PETITIONER

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(BY SRI. M. R. SHAILENDRA., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVT. DEPARTMENT OF SCHOOL EDUCATION AND LITERACY (PRIMARY) M. S. BUILDING, BENGALURU – 560 001

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HC-KAR

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THE COMMISSIONER OF PUBLIC INSTRUCTIONS IN KARNATAKA NEW PUBLIC OFFICES NRUPATHUNGA ROAD BENGALURU – 560 001

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THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS, CHICKMAGALURU DISTRICT CHICKMAGALURU – 577 101

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THE BLOCK EDUCATION OFFICER TARIKERE TLAUK TARIKERE – 577 228 CHICKMAGALUR DIST.

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…RESPONDENTS

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(BY SRI. VIKAS ROJIPURA., AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO a) SET ASIDE THE ORDER DATED 07.03.2024 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BENGALURU IN APPLICATION No.5027/2023 VIDE ANNEXURE-A AND ALLOW THE PRAYERS SOUGHT FOR IN THE SAID APPLICATION AND GRANT ALL CONSEQUENTIAL BENEFIT, INCLUDING THE MONETARY BENEFIT; b) GRANT SUCH OTHER RELIEFS AS THIS HON’BLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING THE AWARD OF COST OF THIS PETITION.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD and HON'BLE MR. JUSTICE T.M.NADAF

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HC-KAR

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE T.M.NADAF)

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On a short point, the unsuccessful applicant is before this Court in this writ petition calling in question the order dated 07.03.2024, in Application No.5027/2023, passed by the Karnataka State Administrative Tribunal, Bengaluru (‘Tribunal’ for short), dismissing the application and declining to set-aside the order dated 06.01.2023, at Annexure-A2 regarding recovery of amount to the tune of Rs.10,14,415/-, from the DCRG of the applicant.

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The parties are referred to as per their ranking before the Tribunal.

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The applicant joined the services in the Education Department as Untrained Assistant Master and was regularized w.e.f. 20.02.1991. In terms of the Government Order dated 20.01.2011, the

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HC-KAR

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Government extended the benefit of the Pay-scale attached to the ‘Trained Teachers’ to the ‘Untrained Assistant Teachers’.

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In view of the Government Order dated 20.01.2011, the benefit was extended to the applicant

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and accordingly his pay was re-fixed as per Annexure-A1. The applicant retired from service on 31.01.2023. Just before retirement, he was issued with an order of ‘fixation of pay’ which was made by misconstruing/misunderstanding the Government Order and there was a excess pay of Rs.10,14,415/and the same was required to be recovered from the DCRG due to the applicant, so also from the salary vide order dated 06.01.2023 (Annexure-A2). The applicant submitted a representation dated 18.07.2023, requesting for refixation of pay and also stating that recovery of the amount from the ‘retirement benefits’ is illegal and arbitrary and the same is not permissible under law. As the said

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HC-KAR

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representation was not considered, the applicant was before the Tribunal in Application No.4216/2017, however, the same was withdrawn with a liberty to file a fresh application. Thereafter, the present application was filed with a prayer to quash the order dated 06.01.2023 at Annexure-A2 with a direction to refund an amount of Rs.10,14,415/- along with appropriate interest and grant all consequential benefits including monetary benefits.

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The State upon service of Notice, entered appearance and filed the statement of objections contending that there is no provision to extend the benefits from the date of his joining i.e., 2006 in the Government Service and hence the recoveries made are in order. It was further contended that the judgment of the Hon’ble Apex Court relied on by the applicant in the case of STATE OF PUNJAB AND OTHERS vs. RAFIQ MASIH (WHITE WASHER) AND

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HC-KAR

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OTHERS¹ is not applicable to the case of the applicant.

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The Tribunal having considered the

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material on record was of the opinion that the applicant is not entitled for any relief, as he has not pleaded any hardship as stated in the case of RAFIQ

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MASIH supra. Further, the Tribunal was of the opinion at paragraph No.6 of its order that if there is a wrong determination of the pay, the recipient who is well aware that he is not entitled for the amount in excess, is under an obligation to bring the wrong fixation to the notice of the BEO which has not been

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done in the case on hand i.e., by the applicant. Accordingly, held that the judgment in the case of RAFIQ MASIH supra is not applicable and dismissed the application. It is this order of the Tribunal, that is called in question in this writ petition.

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1 (2015) 4 SCC 334

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HC-KAR

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Heard Sri.Shailendra M.R., learned

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counsel appearing for the petitioner and Sri.Vikas Rojipura, learned AGA for respondents.

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On a short ground, Sri.Shailendra,

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submits that there is no material placed on record to show that the applicant is aware of the wrong fixation of pay-scale. On other hand, he has drawn our attention to Annexure-A2 i.e., order impugned wherein it is clearly stated that it is the Department on misconstruing the Government Order dated 20.01.2011 fixed the pay-scale which is not applicable to the applicant. Under these circumstances, the observation of the Tribunal is unsustainable under law and requires consideration.

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Though Sri.Vikas Rojipura, learned AGA supporting the impugned order, relying on the judgment of RAFIQ MASIH supra at para No.15 contends that if the party who is the recipient of excess pay, since he was aware that he was not

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HC-KAR

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entitled to a refund on the ground that it was wrongly paid. However, to a query of this Court regarding the materials to show that the applicant is aware of the fact of wrong fixation at the earlier point of time prior to the issuance of the order impugned, Sri.Rojipura is not in a position to show any material satisfying the question and failed to support his contention.

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In view of the same, we are of the

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considered opinion that the reasons assigned by the Tribunal while rejecting the application is not in accordance with law and against the judgment of the Hon’ble Apex court in the case of RAFIQ MASIH supra, since the excess payment is made which is not attributable to the applicant and as per judgment supra , the same cannot be recovered.

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This Court in catena of judgments held

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that any wrong fixation and payment made in excess, if the same is not attributable to the recipient cannot be recovered. In the light of the judgment of the

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HC-KAR

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Hon’ble Apex Court in the case of RAFIQ MASIH , we are of the opinion on the facts of the case that the applicant has made out a case to set-aside the order impugned. Accordingly, we pass the following order:

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ORDER

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i) Writ petition is allowed . The order dated 07.03.2024, in Application No.5027/2023, passed by the Karnataka State Administrative Tribunal, Bengaluru is quashed. Consequently, the application is allowed, setting-aside the order impugned dated 06.01.2023, at Annexure-A2 regarding recovery of amount to the tune of Rs.10,14,415/-, from the DCRG of the applicant.

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ii) The respondents – State are directed to refund Rs.10,14,415/- along with interest at 6% to the applicant within 6 weeks from the date of receipt of copy of this order.

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