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Judgment
S. Manikumar, J.—Challenge in this writ appeal, is to an order, made by the Writ Court in W.P.(MD) No. 1831 of 2012 dated 27.08.2014, by which, the learned single Judge, has set aside an order of recovery, passed by the 2nd respondent, in Letter No. PDL/150/11/G1, dated 30.01.2012. Consequently, the learned single Judge has directed the respondents that if any recovery has already been made, the same shall be refunded to the petitioner, within a period of eight weeks from the date of receipt of the order made in the writ petition. Material on record discloses that the petitioner/respondent in this appeal retired as a Panchayat Union Elementary School Headmaster on 31.10.1995. He was granted pension. After retirement, he made an application to the Assistant Educational Officer, Sivagangai, for revision of pension. In the said application, as against column No. 5, regarding the date of retirement of the Government employee, he has stated that, he had retired on 31.10.1998. As against Column No. 7, regarding the date from which pension is being drawn, he has mentioned as 01.11.1998. In the Annual Audit Report 2011, the Regional Joint Director, Treasury and Accounts Department, Madurai, has found that between 01.01.2007 and 31.12.2011, petitioner/respondent in this appeal, has been paid an excess amount of Rs. 48,912/-. Accordingly, the Treasury Officer, Sivagangai, has issued proceedings in Ka.Mu.A. 150/11/J1 dated 30.01.2012, ordering recovery of the abovesaid amount at Rs. 8,912/- as the first installment to be made in the month of January 2012 and the balance amount of Rs. 40,000/- in five equal installments from February 2012 to June 2012.
Assailing the correctness of the order of recovery, petitioner/respondent has filed W.P.(MD) No. 1831 of 2012, on the grounds inter alia, that as there was no misrepresentation or suppression of any fact, for the receipt of the alleged excess payment, recovery order has to be set aside. Supporting the contentions, learned counsel for the petitioner has relied on certain decisions.
Treasury Officer, District Treasury, Sivagangai, in his counter affidavit has contended that it was the petitioner, who submitted his application, for revision of pension to the Assistant Elementary Educational Officer, Sivagangai, with reference to paragraph 2(vi) of G.O.Ms. No. 235 dated 01.06.2009. The Treasury Officer, Sivagangai, has further contended that the petitioner has willfully given his date of retirement as 31.10.1998, in order to gain benefits from the Government order. Assistant Elementary Educational Officer, Sivagangai, has forwarded the application. The actual date of retirement of the petitioner is 31.10.1995. Based on the retirement date given by the petitioner, in his application for revision of pension, excess payment has been made. According to the Treasury Officer, District Treasury, Sivagangai, had the petitioner given his date of retirement as 31.10.1995, excess payment would not have been made, and as the petitioner had misrepresented his date of retirement, excess payment made, should be recovered. Accordingly, order dated 30.01.2012 was issued.
Perusal of the impugned order, made in W.P.(MD) No. 1831 of 2012, dated 27.08.2014, shows that the petitioner/respondent has filed a reply, refuting the allegation of misrepresentation. Observing that when service records are already available in the office of the appellants, and that the mistake was committed only by the appellants and taking note of the decisions in Shyam Babu Verma and Others Vs. Union of India (UOI) and Others, and Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, , wherein, the Hon''ble Supreme Court has held that recovery should not be made in a routine manner and it depends on the facts and circumstances of each case, and applying the principles laid down in Chandi Prasad Uniyal''s case, Writ Court has set aside the order dated 30.01.2012 of the Treasury Officer, District Treasury, Sivagangai.
Assailing the correctness of the order made in the writ petition, Mr. M. Alagadevan, learned Special Government Pleader submitted that the Writ Court has failed to consider the aspect that as per G.O.Ms. No. 57, Finance Department, dated 05.02.1980, maximum qualifying service required for full pension is 33 years for the period from 01.10.1979 to 30.06.1996 and after 01.07.1996, period of maximum qualifying service for full pension, has been reduced to 30 years in G.O.Ms. No. 461, Finance (Pension) Department, dated 31.07.1996.
According to the learned counsel for the State, the respondent served for 31 years and retired on 31.10.1995. In the application for revision of pension, he has mentioned the date of retirement as 31.10.1998 instead of 31.10.1995, and thus he has misrepresented the date of retirement. Excess payment of Rs. 48,912/- was made wrongly during the period from 01.01.2007 to 31.12.2011 and when the annual audit pointed out the same, recovery was ordered, as per the guidelines issued by the Government. Learned Special Government Pleader further submitted that the respondent is not entitled for the said amount and even taking it for granted that any excess payment is made, due to oversight or inadvertence, by the authorities the same can be recovered.
Per contra, Mr. S. Visvalingam, learned counsel for the writ petitioner/respondent, submitted that there was no misrepresentation on the part of the petitioner. He also contended that though an application was made for revision of pension, copy of pension payment order dated 31.10.1995 was enclosed along with the application made for revision of pension and that therefore, there was no misrepresentation.
Heard the learned counsel for the parties and perused the materials available on record.
Perusal of the pension payment order, dated 31.10.1995, issued by the Accountant General (A & E) Tamilnadu, Madras, shows that the amount of pension/revised pension is Rs. 1,112/-. A sum of Rs. 46,443/- is the commuted value of pension. After receiving the pension fixed by the Accountant General (A & E) Tamil Nadu, Madras, on the basis of the years of service rendered, petitioner has made an application, for refixation of pension, through the Assistant Educational Officer, Sivagangai, wherein, he had given his date of retirement as 31.10.1998, and the date from which pension was drawn, as 01.11.1998. He has also quoted a sum under the head, ''Basic Pension''. The said application has been forwarded to the Accountant General and based on the date of retirement mentioned in the application, excess payment of Rs. 48,912/- has been made from 01.01.2007 to 31.12.2011.
Though the petitioner/respondent in this appeal has contended that there was no misrepresentation on his part and that it was the appellants, who had committed the mistake, which the Writ Court had also accepted in setting aside the recovery order, for which, reliance has also been placed on Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, , We are not inclined to accept the said contention. Apparently, it is the petitioner/respondent in this appeal, who has furnished wrong particulars, in the application submitted for revision of pension, as to the date of his retirement and the date, from which he has pension. When the petitioner/respondent in this appeal, is fully aware of the date of retirement, it cannot be said that there was no misrepresentation. He had not worked upto 1998. As stated supra, he has also given the date from which pension/family pension was drawn as on 01.11.1998, which fact is also incorrect.
Though the appellants have committed a mistake in making excess payment of Rs. 48,912/-, as rightly contended, such payment has been made, based on the retirement date, given in the application, submitted by the petitioner and pension had been fixed taking into account the net qualifying service.
Pension can be fixed, only as per the maximum qualifying service stated in the abovesaid G.Os. It may be a fact that the service records are available with the respondents, but making excess payment by the authority is based on the information furnished by the petitioner. On the facts and circumstances of the case, it cannot be said that there was no misrepresentation, on the part of the writ petitioner as to the date of retirement i.e., 31.10.1998 and to the date from which the pension/family pension was drawn by him. In Shyam Babu Verma and Others Vs. Union of India (UOI) and Others, and other cases considered by the Hon''ble Supreme Court, while interfering with the order of recovery, fixation of pay had been done, prior to retirement and thereafter, when excess amount paid was sought to be recovered from pension, the Hon''ble Supreme Court, treated those cases, as exceptional and accordingly set aside the order of recovery. Whereas, in the case on hand, those exceptional cases cannot be made applicable, for the reason that after retirement, petitioner/respondent in this appeal, has sought for revision of pension, giving wrong particulars to the authorities, as stated supra. Therefore, we are in agreement with the submission of the learned counsel for the State and accordingly set aside the order made in W.P.(MD) No. 1831 of 2012 dated 27.08.2014. Consequently, the writ appeal is allowed. No costs. Consequently, M.P.(MD) No. 2 of 2015 is closed.