Andhra Pradesh High Court – Amravati
The Commissioner Of Police vs P M Balaji on 24 June, 2025
HIGH COURT OF ANDHRA PRADESH
****
WRIT PETITION No. 5756 of 2021
Between:
The Commissioner of Police,
Vijayawada City Police, Vijayawada,
Krishna District and 3 others
.....PETITIONERS
AND
P. M. Babji
.....RESPONDENT
DATE OF JUDGMENT PRONOUNCED: 24.06.2025
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE CHALLA GUNARANJAN
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the Yes/No
fair copy of the Judgment?
_______________________
RAVI NATH TILHARI, J
_______________________
CHALLA GUNARANJAN, J
RNT, J & CGR, J
2 WP No. 5756 of 2021
* THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE CHALLA GUNARANJAN
+ WRIT PETITION No. 5756 of 2021
% 24.06.2025
Between:
The Commissioner of Police,
Vijayawada City Police, Vijayawada,
Krishna District and 3 others
.....PETITIONERS
AND
P. M. Babji
.....RESPONDENT
! Counsel for the Petitioners : Sri R. S. Manidhar Pingali
AGP for Services
Counsel for the Respondent : Sri B. Rajesh Kumar
< Gist :
> Head Note:
? Cases Referred:
1. (2012) 8 SCC 417
2. (2016) 14 SCC 267
3. (2009) 3 SCC 475
4. (2006) 11 SCC 709
5. (2014) 8 SCC 892
6. (1994) 2 SCC 521
7. 1995 Supp (1) SCC 18
8. (2014) 8 SCC 883
9. (2015) 4 SCC 334
10. 2022 SCC OnLine SC 536
RNT, J & CGR, J
3 WP No. 5756 of 2021
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BL SRI JUSTICE CHALLA GUNARANJAN
WRIT PETITION No. 5756 of 2021
JUDGMENT:
(per Hon’ble Sri Justice Ravi Nath Tilhari)
Heard Sri R. S. Manidhar Pingali, learned Assistant Government Pleader
for Services, for the petitioners and Sri B. Rajesh Kumar, learned counsel for
the respondent, appearing through virtual mode.
2. The respondent – P. M. Babji was the applicant in O.A.No.2401 of
2017 before the Andhra Pradesh Administrative Tribunal, Hyderabad (in short
‘the Tribunal’). The petitioners were the respondents therein.
3. The respondent herein shall be referred to as the ‘applicant’ and the
petitioners as ‘petitioners’.
4. The applicant joined in service as Police Constable on 13.07.1984. He
submitted his resignation which was accepted with effect from 08.11.1994 by
the Commissioner of Police, Vijayawada. Subsequently, he made a
representation to the Government in the year 1998 and accepting the request
as per the representation, the Government issued G.O.Ms.No.2396, Home
(Police-D) Department, dated 30.11.1998, and permitted the applicant to
withdraw his resignation on humanitarian grounds as a special case and
directed for his reappointment as Police Constable subject to Rule 30 of the
Andhra Pradesh State and Subordinate Service Rules, 1996 (in short ‘Rules
1996’). At the time of his reappointment, his pay was fixed basing on his last
pay i.e., the amount last paid to the applicant prior to his resignation. At the
RNT, J & CGR, J
4 WP No. 5756 of 2021
time of retirmement of the applicant on attaining the age of superannuation,
the Commissioner of Police, Vijayawada city passed the Order dated 10.05.2017
in D.O.No.457/2017/C.No.2062/A4/2017 refixing the applicant’s pay with effect
from 30.06.2017 and while sending the pension papers to the District Audit
Officer, State Audit, Krishna, Machilipatnam, Commissioner of Police,
Vijayawada city, vide his letter dated 25.06.2017 informed that the applicant’s
pay was refixed and the applicant had to pay Overdraft (in short ‘OD’) amount
of Rs.12,34,303/-, which was asked to be deducted from his gratuity,
commutation and pension.
5. Questioning the aforesaid action, the applicant filed O.A.No.2401 of
2017.
6. Petitioners filed their counter in the O.A. Their case was that
refixation of the applicant’s pay on his reappointment was under mistake. The
applicant was not entitled for refixation of pay, giving the benefit of the
previous service, prior to resignation, but it being reappointment subject to Rule
30 of the Rules 1996, the service rendered prior to resignation shall be forfeited
under the Government. The reappointment was to be treated as first
appointment. That mistake was corrected and the applicant’s pay was refixed,
vide Order dated 10.05.2017 for grant of pension and other benefits and the
excess amount paid was to be recovered.
7. The Tribunal allowed the O.A.2401 of 2017 vide judgment dated
26.10.2017. It provided that so far as the fixation of pension was concerned,
the applicant would be entitled for fixation of retiral benefits and pension on the
RNT, J & CGR, J
5 WP No. 5756 of 2021
basis of last drawn pay as refixed in the proceedings dated 10.05.2017, but so
far as the direction by the Authority to the applicant to pay O.D. amount of
Rs.12,34,303/- was concerned, the said direction could not be issued by the
authorities. The Tribunal directed the petitioners not to make any recovery of
the said amount from out of the retiral benefits of the applicant.
8. Challenging the aforesaid Order, dated 26.10.2017 of the Tribunal, the
petitioners had filed the present writ petition.
9. Learned counsel for the petitioners submitted that the applicant was
not entitled for the pay in the scale fixed at the time of reappointment, which
was erroneously fixed taking into account the past service of the applicant,
though that service was not to be counted in terms of Rule 30 of the Rules
1996 and the reappointment was fresh appointment. The benefits of the
previous service was not to be given. That mistake was sought to be corrected
at the time of the superannuation of the applicant, vide Order dated 10.05.2017
by refixing the pay, correctly, and consequently, the direction to recover the
excess amount was issued from the retiral benefits of the applicant. He
submitted that the Tribunal ought to have considered the Rule 30 of the Rules
1996 that the reappointment was fresh appointment and consequently, the
excess amount paid to the applicant was liable to be recovered. Learned
counsel for the petitioners placed reliance in the cases of Chandi Prasad
Uniyal v. State of Uttarakhand1 and High Court of Punjab and Haryana
v. Jagdev Singh2.
1
(2012) 8 SCC 417
2
(2016) 14 SCC 267
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6 WP No. 5756 of 2021
10. Sri B. Rajesh Kumar, learned counsel for the applicant, submitted
that the excess amount paid to the applicant, could not be recovered. He
submitted that the applicant belonged to Group-D Service and was due to retire
with effect from 30.06.2017. Consequently, the Order dated 10.05.2017 was
within one year from the due date of retirement. So, no illegality was
committed by the Tribunal in allowing the O.A.
11. We have considered the aforesaid submissions and perused the
material on record.
12. The point for consideration and determination is,
“Whether the excess amount paid to the applicant due to wrong
refixation of pay could be recovered from him?”
13. The legal position on the aforesaid issue is well settled by Catena of
judgments of the Hon’ble Apex Court.
14. The Hon’ble Apex Court in Chandi Prasad Uniyal (supra) held that
except few instances pointed out in Syed Abdul Qadir v. State of Bihar3 and
in Col. B. J. Akkara v. Govt. of India4, the excess payment made due to
wrong / irregular pay fixation can always be recovered.
15. From the aforesaid judgment in Chandi Prasad Uniyal (supra) it is
clear that, except in the exceptional categories of cases, as in Syed Abdul
Qadir (supra) and Col. B. J. Akkara (supra), the excess payment can always
be recovered. Consequently, in exceptional categories of case, the same
cannot be recovered.
3
(2009) 3 SCC 475
4
(2006) 11 SCC 709
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7 WP No. 5756 of 2021
16. In Syed Abdul Qadir (supra) the excess amount had been paid to
the teachers not because of any misrepresentation or fraud on their part and
the appellants therein also had no knowledge that the amount that was being
paid to them was more than what they were entitled to. In the said case the
Finance Department 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 teachers could not be held responsible.
17. In Col. B. J. Akkara (supra), the Hon’ble Apex Court held as under
in Para Nos. 27 to 29:
“Re: Question (iv)
27. The last question to be considered is whether relief should be granted
against the recovery of the excess payments made on account of the wrong
interpretation/understanding of the circular dated 7-6-1999. This Court has
consistently granted relief against recovery of excess wrong payment of
emoluments/allowances from an employee, if the following conditions are
fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995
SCC (L&S) 248] , Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 :
1994 SCC (L&S) 683 : (1994) 27 ATC 121] , Union of India v. M.
Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] and V.
Gangaram v. Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S)
1652] ):
(a) The excess payment was not made on account of any
misrepresentation or fraud on the part of the employee.
(b) 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.
28. Such relief, restraining back recovery of excess payment, is granted
by courts not because of any right in the employees, but in equity, in exercise of
RNT, J & CGR, J
8 WP No. 5756 of 2021judicial discretion to relieve the employees from the hardship that will be
caused if recovery is implemented. A government servant, particularly one in
the lower rungs of service would spend whatever emoluments he receives for
the upkeep of his family. If he receives an excess payment for a long period, he
would spend it, genuinely believing that he is entitled to it. As any subsequent
action to recover the excess payment will cause undue hardship to him, relief is
granted in that behalf. But where the employee had knowledge that the payment
received was in excess of what was due or wrongly paid, or where the error is
detected or corrected within a short time of wrong payment, courts will not
grant relief against recovery. The matter being in the realm of judicial
discretion, courts may on the facts and circumstances of any particular case
refuse to grant such relief against recovery.
29. On the same principle, pensioners can also seek a direction that
wrong payments should not be recovered, as pensioners are in a more
disadvantageous position when compared to in-service employees. Any attempt
to recover excess wrong payment would cause undue hardship to them. The
petitioners are not guilty of any misrepresentation or fraud in regard to the
excess payment. NPA was added to minimum pay, for purposes of stepping up,
due to a wrong understanding by the implementing departments. We are
therefore of the view that the respondents shall not recover any excess
payments made towards pension in pursuance of the circular dated 7-6-1999 till
the issue of the clarificatory circular dated 11-9-2001. Insofar as any excess
payment made after the circular dated 11-9-2001, obviously the Union of India
will be entitled to recover the excess as the validity of the said circular has been
upheld and as pensioners have been put on notice in regard to the wrong
calculations earlier made.”
18. Later on, in Rakesh Kumar v. State of Haryana5 the Hon’ble
Apex Court being of the view that there was an apparent difference of views
expressed, on the one hand in Shyam Babu Verma v. Union of India6 and
5
(2014) 8 SCC 892
6
(1994) 2 SCC 521
RNT, J & CGR, J
9 WP No. 5756 of 2021
Sahib Ram v. State of Haryana7 and on the other hand in Chandi Prasad
Uniyal (supra), made a reference to the Larger Bench.
19. In State of Punjab v. Rafiq Masih8 the Larger Bench of the
Hon’ble Apex Court observed that the reference was unnecessary. It was
observed that in Shyam Babu Verma (supra) while observing that the
petitioners therein were not entitled to the higher pay scales, had come to the
conclusion that since the amount had already been paid to those petitioners, for
no fault of theirs, the said amount shall not be recovered by the Union of India.
In Sahib Ram (supra) also although the appellant therein did not possess the
required educational qualification, yet the principal granting him the relaxation,
had paid his salary on the revised pay scale. That was not on account of
misrepresentation made by the appellant therein but by a mistake committed
by the principal. In that fact situation, the amount already paid to the appellant
was directed not to be recovered. The Hon’ble Apex Court in Rafiq Masih
(supra-1) observed that the observations made in those cases not to recover
the excess amount paid was in the exercise of extraordinary powers of the
Hon’ble Apex Court under Article 142 of the Constitution of India, which vest
the power in the Supreme Court to pass equitable orders in the ends of justice.
20. The Hon’ble Apex Court in Rafiq Masih (supra-1) further observed
that, in Chandi Prasad Uniyal (supra), the issue was whether the appellant
therein could retain the amount received on the basis of irregular / wrong pay
fixation in the absence of any misrepresentation or fraud on his part, and after
7
1995 Supp (1) SCC 18
8
(2014) 8 SCC 883
RNT, J & CGR, J
10 WP No. 5756 of 2021
taking into consideration the various decisions of the Hon’ble Apex Court, it was
held that even if by mistake of the employer the amount was paid to the
employee and on a later date if the employer after proper determination of the
same discovered that the excess payment was made by mistake or negligence,
the excess payment so made could be recovered. The Larger Bench of the
Hon’ble Apex Court in Rafiq Masih (supra-1) held that the law laid down in
Chandi Prasad Uniyal (supra) was in no way in conflict with the observations
made in the cases of Shyam Babu Verma (supra) and Sahib Ram (supra).
The decision in Chandi Prasad Uniyal (supra) was under Article 136 of the
Constitution of India, in laying down the law.
21. In State of Punjab v. Rafiq Masih9 , i.e., the judgment after the
matter was sent back to the concerned Benches pursuant to the Order in
reference in Rafiq Masih (supra-1), the Hon’ble Apex Court held that it was
not possible to postulate all situations of hardship which would govern
employees on the issue of recovery made by the employer in excess of their
entitlement.
22. The Hon’ble Apex Court in Rafiq Masih (supra-2) summarized in
para-18, the following few situations, wherein recoveries by the employers,
were held to be impermissible in law:
“18. It is not possible to postulate all situations of hardship which would
govern employees on the issue of recovery, where payments have mistakenly
been made by the employer, in excess of their entitlement. Be that as it may,
based on the decisions referred to hereinabove, we may, as a ready reference,9
(2015) 4 SCC 334
RNT, J & CGR, J
11 WP No. 5756 of 2021summarise the following few situations, wherein recoveries by the employers,
would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or
Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire
within one year, of the order of recovery.
(iii) Recovery from the employees, when the excess payment has been made for a
period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to
discharge duties of a higher post, and has been paid accordingly, even though
he should have rightfully been required to work against an inferior post.
(v) In any other case, where the court arrives at the conclusion, that recovery if
made from the employee, would be iniquitous or harsh or arbitrary to such an
extent, as would far outweigh the equitable balance of the employer’s right to
recover.”
23. In Jagdev Singh (supra), the Hon’ble Apex Court referred to its
judgment in Rafiq Masih (supra-2) in para-10 thereof that in those situations
as in para-10 of Rafiq Masih (supra-2), a recovery by the employer would be
impermissible in law.
24. In Thomas Daniel v. State of Kerala10 the Hon’ble Apex Court
observed that an attempt to recover the excess increments after passage of ten
years of retirement was unjustified. In the said case, it was also not contended
that on account of any misrepresentation or fraud played by the appellant
therein, the excess amount was paid. In fact, the case of the respondents
therein was that the excess payment was made due to mistake in interpreting
10
2022 SCC OnLine SC 536
RNT, J & CGR, J
12 WP No. 5756 of 2021
Kerala Service Rules, which was subsequently pointed out by the Accountant
General.
25. Paragraphs – 14 & 15 of Thomas Daniel (supra) read as under:
“14. Coming to the facts of the present case, it is not contended before us
that on account of the misrepresentation or fraud played by the appellant, the
excess amounts have been paid. The appellant has retired on 31.03.1999. In
fact, the case of the respondents is that excess payment was made due to a
mistake in interpreting Kerala Service Rules which was subsequently pointed
out by the Accountant General.
15. Having regard to the above, we are of the view that an attempt to
recover the said increments after passage of ten years of his retirement is
unjustified.”
26. We would consider whether the present case falls within the
exceptions as pointed out in Syed Abdul Qadir (supra) and Col. B. J. Akkara
(supra) or / and Rafiq Masih (supra-2) and then whether the excess payment
due to wrong or irregular pay fixation can or cannot be recovered.
27. We are of the view that the case of the applicant is covered and falls
within the instances of Syed Abdul Qadir (supra), Col. B. J. Akkara (supra)
and in clauses (i) & (ii) of para-18 of Rafiq Masih (supra-2), if not in other
clauses. We are of the further view that at this stage, it would be iniquitous or
harsh to allow the petitioners to recover the excess payment from the
respondent.
28. Rule 30 of the Rules 1996 upon which learned counsel for the
petitioners laid emphasis, deals with ‘resignation’. Sub-rule (b) of Rule 30 of the
Rules 1996 provides inter alia that if the person is permitted to withdraw his
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13 WP No. 5756 of 2021
resignation after it has taken effect and is reappointed to the post from which
he resigned, such reappointment shall be subject to the conditions specified in
Sub-Rules (c) and (d). As per sub-rule (c), a member of service shall, if he
resigns his appointment, forfeit not only the service rendered by him in the
particular post held by him at the time of resignation but all his previous service
under the Government. As per sub-rule (d), the reappointment shall be treated
in the same way as a first appointment to such service by direct recruitment
and all rules governing such appointment shall apply, and on such
reappointment he shall not be entitled to count any portion of his previous
service for any benefit or concession admissible under any rule or order.
29. So far as the aforesaid Rule 30 of the Rules 1996 is concerned, this
was required to be seen by the authorities at the time of reappointment while
refixation of the pay scale. It is not the case of the petitioners that the
applicant played any role or committed any fraud in getting wrong fixation.
The fixation of pay scale was made by the authorities, may be in ignorance of
Rule 30 at that time or on a wrong consideration of such rule and when it was
realized that the fixation was incorrectly made they had right to correct, but any
excess amount paid, could not be recovered, in view of the law as laid down in
Rafiq Masih (supra-2), Jagdev Singh (supra) and Thomas Daniel (supra).
Rule 30 of the Rules 1996 is therefore of no help to the petitioners for the
purposes of the recovery of the excess amount paid to the applicant.
30. Learned counsel for the petitioners laid much emphasis in para-11 of
Jagdev Singh (supra) to contend that the proposition No.(ii) as laid down in
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14 WP No. 5756 of 2021
Rafiq Masih (supra-2) cannot be applied to the situation where the officer to
whom the payment was made in the first instance was clearly placed on notice
that any payment found to have been made in excess would be required to be
refunded. In the said case, the officer had furnished an undertaking while
opting for the revised pay scale. The Hon’ble Apex Court held that the officer
was bound by the undertaking.
31. Paras-10 and 11 of Jagdev Singh (supra) are reproduced as under:
“10. In State of Punjab v. Rafiq Masih [State of Punjab v. Rafiq Masih,
(2015) 4 SCC 334 : (2015) 2 SCC (Civ) 608 : (2015) 2 SCC (L&S) 33] this
Court held that while it is not possible to postulate all situations of hardship
where payments have mistakenly been made by an employer, in the following
situations, a recovery by the employer would be impermissible in law : (SCC
pp. 334-35)
(i) Recovery from employees belonging to Class III and Class IV service (or
Group C and Group D service).
(ii) Recovery from retired employees, or employees who are due to retire
within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for
a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to
discharge duties of a higher post, and has been paid accordingly, even though
he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that
recovery if made from the employee, would be iniquitous or harsh or arbitrary
to such an extent, as would far outweigh the equitable balance of the employer’s
right to recover.
(emphasis supplied)
11. The principle enunciated in Proposition (ii) above cannot apply to a
situation such as in the present case. In the present case, the officer to whom the
payment was made in the first instance was clearly placed on notice that any
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15 WP No. 5756 of 2021
payment found to have been made in excess would be required to be refunded.
The officer furnished an undertaking while opting for the revised pay scale. He
is bound by the undertaking.”
32. Learned Counsel for the petitioners emphasized that in the present
case also the applicant had undertaken that any payment found to be made in
excess would be required to be refunded. The applicant had also undertaken
for the refixation of his pay at the time of superannuation with his consent.
33. There is no dispute on the proposition of law that at the time of
refixation, if it was made erroneously on the higher side and the payment was
made to an officer or employee and he had undertaken at that time that any
payment found to have been made in excess would be required to be refunded,
such officer or employee would be liable to pay excess paid to him and that he
cannot resile from the undertaking, if it is found subsequently that an excess
payment was paid, to which, officer or employee was not entitled for payment
on the refixation of the pay which was on the higher side and made
erroneously. But here any such undertaking of the applicant at the time of the
fixation of his pay at the time of his reappointment after resignation could not
be placed before us. It is not even the case of the petitioners in the writ
petition that any such undertaking at that time i.e., in the year 2018 when the
reappointment was made, was given by the applicant. The pleading in the writ
petition (para-8) as also the argument advanced based on such pleading is that
after noticing the mistake that erroneous pay fixation (on reappointment) was
made, the presence of the applicant was obtained on 08.05.2017 and he was
explained about the erroneous pay fixation of his pay and then only after
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16 WP No. 5756 of 2021
obtaining the consent of the applicant the pay was revised by D.O.No.457/2017
in C.No.2062/A4/2017, dated 10.05.2017. We are of the view that such a
consent of the applicant for refixation at the time of his superannuation
because of the erroneous pay fixation at the time of his reappointment, cannot
be considered to be consent for recovery of the excess amount already paid.
There is no pleading that the applicant consented for recovery of the excess
amount paid. The consent for refixation at the time of retirement by rectifying
the mistake would at best be for pensionary benefits to be determined based
on such correct refixation on attaining the age of superannuation. We also find
that the applicant did not challenge the refixation vide Order dated 10.05.2017
in O.A., but only the recovery part of the excess amount. The Tribunal also
directed to fix the pensionary benefits and pay the same pursuant to the
refixation Order dated 10.05.2017. The applicant has not challenged that part
of the Order of the Tribunal. Consequently, so far as the recovery of the excess
amount paid is concerned, it cannot be said that the applicant consented for
recovery of the excess amount.
34. Any document has not been placed on record before us either to
show that at the time of fixation of the pay scale of the applicant at the time of
his reappointment, he gave any such undertaking nor that at the time of
refixation of the pay, correctly, at the time of superannuation vide Order dated
10.05.2017, the applicant consented for recovery of excess amount due to
wrong fixation of salary. We do not find any force in the submission of the
petitioners’ counsel on the above count. The judgment in Jagdev Singh
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17 WP No. 5756 of 2021
(supra) is therefore not attracted so as to justify recovery from the applicant on
any such ground of the applicant’s undertaking. In Jagdev Singh (supra) the
officer had furnished the undertaking while opting for the revised pay scale as
is evident from para-11 of the judgment.
35. The excess amounts paid to the applicant/respondent, in our view,
cannot be recovered.
36. We do not find any illegality in the order of the Tribunal directing the
petitioners not to recover the excess payment made to the applicant. We do not
find any reason or justification to interfere with the order of the Tribunal.
37. The Writ Petition is dismissed. No order as to costs.
Pending miscellaneous petitions, if any, shall stand closed in
consequence.
_______________________
RAVI NATH TILHARI, J
________________________
CHALLA GUNARANJAN, J
Date: 24.06.2025
Dsr
Note:
LR copy to be marked
B/o
Dsr