F M MULLA vs STATE OF KARNATAKA AND ORS

Court
Karnataka High Court

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IN THE HIGH COURT OF KARNATAKA


KALABURAGI BENCH

TH
DATED THIS THE 30 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

WRIT PETITION NO. 203318 OF 2024 (S-RES)

BETWEEN:
MR.F M MULLA
S/O MEHABUBSAB
AGED ABOUT 62 YEARS
RESIDING AT HOUSE NO.50
AAMIR VILLA, NEAR BADIKAMANA
VIJAYAPURA-586104
…PETITIONER







(BY SRI. YASHAS S DIKSHIT., ADVOCATE)

AND:
1. STATE OF KARNATAKA
RPTD. BY PRL. SECRETAY
DEPARTMENT OF HIGHER EDUCATION (COLLEGIATE)
M.S.BUILDING
BANGALORE-01

2. THE COMMISSIONER
DEPARTMENT OF COLLEGIATE EDUCATION
PALACE ROAD, BANGALORE-01

3. THE JOINT DIRECTOR
REGIONAL OFFICE
DEPARTMENT OF COLLEGIATE EDUCATION
MINI VIDHANA SOUDHA
DHARAWAD


Digitally signed
by SWETA
KULKARNI
Location: HIGH
COURT OF
KARNATAKA

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4. THE ACCOUNTANT GENERAL (A AND E)
KARNATAKA, BENGALURU
P.B NO.5329/5369, ANNEXE BUILDING
PARK HOUSE ROAD
BENGALURU-560 001.
…RESPONDENTS
(BY SRI.MALLIKARJUN SAHUKAR, AGA FOR R1 TO R3;
SRI.SUDHIRSINGH R. VIJAPUR ADV., FOR R4)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO, A) QUASH THE
LETTER NO.DCE/387/CR-1/TBS/2023-24 DATED 16-01-2024
AND LETTER NO.KAASHIE/387/TRISOUYOO/CR-1/2023-24
DATED 08-08-2024 ISSUED BY RESPONDENT NO.2 VIDE
ANNEXURE-H AND L RESPECTIVELY; AA) QUASH THE ORDER
NO.KAASHIE/PRAKADHA/186/PINGARANA/GES/7/2022-23
DATED 11-09-2023 PASSED BY RESPONDENT NO.3 VIDE
ANNEXURE-G; B) DIRECT RESPONDENT NO.4 TO RELEASE THE
WITH-HELD PENSIONERY BENEFITS INCLUDING DCRG AND
CVP IN FAVOUR OF THE PETITIONER; C) ISSUE SUCH OTHER
ORDER, WRIT OR DIRECTIONS AS THIS HONOURABLE COURT
DEEMS FIT TO BE GRANTED IN THE FACTS AND
CIRCUMSTANCES OF THE CASE BY ALLOWING THIS WRIT
PETITION IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
15.10.2026, COMING ON FOR PRONOUNCEMENT OF ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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CAV JUDGMENT

This writ petition is filed seeking the following
prayers:
“A) Quash the Letter No.DCE/387/CR-
1/TBS/2023-24 dated 16-01-2024 and
letter No.KaaShiE/387/TriSouYo/CR-
1/2023-24 dated 08-08-2024 issued by
Respondent No.2 vide ‘Annexure-H and L”
respectively.
AA) Quash the order
No.KaaShiE/PrakaDha/186/Pingarana/GES/
7/2022-23 dated 11-09-2023 passed by
Respondent No.3 vide Annexure-G.”
B) Direct Respondent No.4 to release
the with-held pensionary benefits including
DCRG and CVP in favour of the petitioner.
C) Issue such other order, writ or
directions as this Hon’ble court deems fit to
be granted in the facts and circumstances
of the case by allowing this writ petition in
the interest of justice and equity.”


2. Sri.Yashas S. Dikshit, learned counsel appearing
for the petitioner submits that the petitioner worked as a
Second Division Assistant (for short ‘SDA’) and retired
from service on 31.05.2023. Initially, his pension was
fixed by taking his date of joining into service. However,
later it was changed from the date of approval of his
appointment. It is submitted that respondent No.2

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informed respondent No.4 that, an excess amount of
Rs.8,38,317/- was paid to the petitioner and requested to
pass suitable order. It is further submitted that the
respondent No.4 withheld the Death-cum-Retirement
Gratuity (hereinafter referred as ‘DCRG’) and Commuted
Value Pension (hereinafter referred as ‘CVP’). It is also
submitted that the petitioner submitted a representation
requesting to correct the mistake. However, respondent
No.2 informs respondent No.4 to withhold the DCRG and
CVP of the petitioner. It is contended that there is no role
on the part of the petitioner in drawing the pension.
Hence, the authority cannot withhold the retirement
benefits of the petitioner. In support of his contentions he
placed reliance on the decision of the Hon’ble Supreme
Court in the case of State of Punjab and Others v.
1
Rafiq Masih (White Washer) and Others . Accordingly,
he seeks to allow the petition.


1
(2015) 4 SCC 334

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3. Learned Additional Government Advocate
appearing for respondent Nos.1 to 3 and Sri.Sudhirsingh
R. Vijapur, learned Deputy Solicitor General of India
appearing for respondent No.4, support the impugned
order and submit that the pension originally fixed in favour
of the petitioner was incorrect, which came to be noticed
at a later stage and ordered to deduct the said amount
from the retirement benefits of the petitioner. The same
does not call for interference. It is submitted that the
petitioner’s appointment was approved on 01.07.1992,
whereas his pension was initially fixed considering his
initial date of appointment. It further submitted that, now
the same is corrected and after deducting the excess
amount paid, if there is any remaining amount, the
authorities would pay the remaining amount to the
petitioner. Accordingly, they seek to dismiss the petition.


4. I have heard the arguments of the learned
counsel for the petitioner, the learned DSGI, the learned

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counsel representing the respondents and meticulously
perused the material available on record. I have given my
anxious consideration to the submissions advanced.


5. The petitioner was appointed as an SDA in
SECAB Arts and Science College for Women, Bijapur on
10.07.1990. Respondent No.1 approved the appointment
of the petitioner to the post of SDA vide order dated
01.07.1992. The respondent No.3 vide order dated
05.06.1995, revised the date of appointment of the
petitioner to 10.07.1990 in lieu of 01.07.1992, as
evidenced in Annexure-E to the writ petition. The
petitioner attained the age of superannuation and retired
from services as SDA on 31.05.2023. Thereafter, the
College authorities forwarded the proposal and the
necessary papers for the purpose of fixation of the
petitioner’s pension. Respondent No.3 vide order dated
06.05.2023, fixed the pension of the petitioner considering
his date of appointment i.e., 10.07.1990 till date of

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retirement, as per Annexure-F. Subsequently, respondent
No.3 vide order dated 11.09.2023, re-fixed the pension of
the petitioner by considering his date of appointment as
01.07.1992 till the date of superannuation i.e.,
31.05.2023, as evident from Annexure-G. Thereafter,
respondent No.2 vide letter dated 16.01.2024 informed
respondent No.4 that an amount of Rs.8,38,317/- was
paid in excess to the petitioner and requested to pass a
suitable order considering the same. Pursuant to the said
letter, respondent No.4, vide letter dated 01.04.2024,
withheld the DCRG and CVP of the petitioner. The
petitioner submitted a representation on 21.10.2024 to
respondent No.2 to reconsider his date of appointment as
10.07.1990 and requested to fix the pension accordingly
and draw a decision to recover the alleged excess amount
paid to the petitioner.


6. Respondent No.2, vide communication dated
08.08.2024, informed respondent No.4 to withhold DCRG

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of the petitioner to the extent of Rs.8,38,317/-, as
evidenced at Annexure-L. Pursuant to the said
communication, respondent No.4 vide communication
dated 21.10.2024, informed respondent No.2 that the
DCRG amount of the petitioner is Rs.7,77,325/- and
recoverable amount is Rs.8,38,317/-. Being aggrieved, the
petitioner has called in question the communications at
Annexure-G, H and L to the writ petition.


7. It is not the case of the respondents that the
petitioner by misrepresentation of facts got the pension
fixed. It is to be noticed that there is no role either of the
petitioner or the college management in considering the
date of appointment as 10.07.1990. The competent
authorities considering the initial date of appointment of
the petitioner i.e., 10.07.1990 fixed the pension and later,
they intend to re-fix the pension by considering the date
as 01.07.1992, which is the date when the appointment of
the petitioner was approved by the authorities. The

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petitioner had no role to play in fixation of his pension by
considering his date of appointment as 10.07.1990.


8. It is further to be noticed that respondent No.3
vide order dated 05.06.1995, had corrected the records of
the petitioner by treating his date of joining into service as
10.07.1990. The order dated 05.06.1995 of respondent
No.3 has attained finality. The respondent authorities,
accordingly, treated the date of joining of the petitioner as
10.07.1990 for all the purposes. However, now without
modifying the said order, subsequent orders have been
passed unilaterally by treating the date of joining of the
petitioner as 01.07.1992 even without providing any
opportunity to hear the petitioner. It is also to be noticed
that the impugned orders are admittedly passed after the
petitioner’s retirement from the service, wherein the
retirement benefits of the petitioner are withheld on the
ground that he had received pension amount more than he
was entitled to receive.

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9. The Hon’ble Supreme Court in the case of Rafiq
Masih referred supra has held as under:
“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 b
the employer, in excess of their
entitlement. Be that as it may, based on
the decisions referred to herein above, we
may, as a ready reference, summarise the
following few situations, wherein recoveries
by the employers, would be impermissible
in law:
(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.”

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10. The aforesaid decision has been considered by
the Hon’ble Supreme Court in the case of Thomas Daniel
2
v. State of Kerala and Others .


11. Considering the enunciation of law laid down by
the Hon’ble Supreme Court, I am of the considered view
that the amount alleged to have paid in excess to the
petitioner is not paid on the basis of any false information
or misrepresentation on the part of the petitioner.
Furthermore, the petitioner attained superannuation on
31.05.2023, and now, the authorities cannot recover the
amount wrongly paid to the petitioner. The withholding of
the petitioner’s DCRG and CVP is contrary to the settled
position of law. Such withholding of retrial benefits of the
employee would violate Article 300A of the Constitution of
India and the action of withholding the retrial benefits is
arbitrary and illegal and calls for interference. For the
preceding analysis, I proceed to pass the following:


2
Civil Appeal No.7115/2010 disposed of on 02.05.2022

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ORDER
i. The writ petition is allowed .
ii. The impugned orders dated
11.09.2023, 16.01.2024 and 08.08.2024,
produced at Annexures-G, H and L
respectively are hereby set aside.
iii. A writ of mandamus is issued to
respondent No.4 to release the withheld
pensionary benefits i.e., DCRG and CVP of
the petitioner immediately.



Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE


ABK
List No.: 1 Sl No.: 1