George Paracken, Member (J)
1. The applicants herein are Trained Graduate Teachers working under the first respondent, namely, the Kendriya Vidyalaya Sangathan. They were initially appointed during the year 1985/1986 in the pre-revised scale of Rs. 1400-2600. In terms of the recommendations of the 5th Central Pay Commission they were granted replacement scale of Rs. 5500-9000 with effect from 1.1.96 and their pay was fixed at the stage of Rs. 6025 as on 1.1.96. On completion of 12 years service from the date of their initial appointment, they were granted the scale of Rs. 6500-10500. While so, the second respondent on its own issued the Annexure-Al order bearing No. F.3-Pay anomaly/2.1.2002/KVS(CHER) TGT dated 12.2.02 stepping up of the pay of 86 Teachers including the applicants at par with their junior, one Mrs. Abha Misra with effect from 1.1.96 in terms of proviso 6 of Rule 7 of the CCS (Revised Pay) Rules, 1997.
2. Later, the respondent No. 2, vide the impugned Annexure-A2 order dated 14.9.04 informed all the Principals of the KVS of Chennai Region that the step up of pay granted to such Sr. TGTs whose pay was stepped up with reference to the pay drawn by the junior teacher Mrs. Abha Misra, TGT of KV. Noida, Delhi Region has been withdrawn on the pay revision of Mrs. Abha Misra, TGT itself as her pay was regulated on 1.1.96 at Rs. 6025 instead of Rs. 6200 in the pay scale of Rs. 5500-9000 with the date of next increment on 1.1.97. Accordingly, the second respondent has directed all the Principals to review the service books of all TGTs and identify such Sr. TGTs whose pay have been stepped up with reference to the pay drawn by Mrs. Abha Misra of KV Noida, Delhi Region and regulate their pay by withdrawing the ante dated increment and also to make recovery of the excess payment made. When this O.A. was taken up for hearing, the learned Counsel for the applicant has submitted that it is covered by the common order of this Tribunal in O.A. 837/04 and O.A. 845/04 as the facts in the present O.A. are also similar to those in the other two O.As. The aforesaid two O.As. were disposed of (supra) vide order dated 11.11.05 with the following observations/directions:
We have heard the learned Counsels for both parties. As submitted by the respondents, the pay of the applicants has been stepped up with a view to remove the genuine anomaly arising from the wrong fixation of pay of their junior Mrs. Abha Misra of K.V. Noida at a higher stage. When the respondents realized that the pay of Mrs. Abha Misra was wrongly fixed at Rs. 6200 instead of Rs. 6025, they have rectified the mistake. By this time the applicants have already drawn the pay at the higher stage. The respondents have not issued any show cause notice why the pay of the applicants should not be regulated by fixing at the original stage at which they have been drawing before the stepping up was ordered. In view of the above facts of the case, we do not find any illegality in withdrawing the step up of pay granted to the applicants vide the impugned letter dated 14.9.04 and regulate their pay accordingly. However, as far as the recovery is concerned, it is well settled that recoveries on account of mistakes not attributable to the applicants cannot be made and the ratio of the decision of their Lordships in the case of Shyam Babu Verma v. Union of India , can be clearly invoked.
In view of the above facts and circumstances of the case, the O.As. are partly allowed. The impugned letter dated 14.9.2004 is quashed and set aside to the extent that it orders recovery of over payment made to the applicants. The other part of the letter withdrawing the step up of pay granted to the applicants and regulating their pay accordingly will stand. The respondents are, therefore, directed not to effect any recovery from the pay and allowances of the applicants in terms of the impugned letter dated 14.9.2004 and recovery, if any, made shall be refunded to the applicants within three months from the date of receipt of this order. There is no order as to costs.
3. The reply filed by the respondents was on similar lines as in O.A. 837/04 and O.A. 845/04 (supra). However, the Counsel for the respondents Mr. Sunil Shanker, brought to our notice a recent judgment dated 14.10.05 of the Hon'ble High Court of Kerala in the case of Santhakumari P.J. v. State of Kerala and Ors. ILR 2005 (4) 563 wherein it has been held that if the mistake is mutual, both the Department as well as the employees are bound by the statutory rules and the reasoning that unless the mistake is committed by the beneficiary, the amount cannot be recovered is not the correct enunciation of law. In the said judgment, the Division Bench was considering the conflicting views expressed by two learned Single Judges in two cases. In Rose v. State of Kerala , a learned Single Judge rejected the plea that the Government is disabled from demanding the over payments because if a petitioner is denied any benefits he has aright to insist for payment and likewise he owes a duty to pay back the excess amount received by him. The learned Single Judge also held that the plea that amount paid have already been appropriated and one may find it difficult to pay it back can only be a self serving argument and not equitable. However, Another learned Single Judge of the Hon'ble High Court in the case of Sivankutty Nair v. Secretary to the Government took the view that the excess amount paid on account of wrong fixation of pay cannot be recovered unless the employee has in any way contributed to the mistake. The question before the Hon'ble High Court was whether the Government is entitled to recover the amount paid to an employee in violation of the statutory provision on account of wrong fixation of pay in a case where employee has not contributed to the mistake. The facts of the case before the Hon'ble High Court was that the petitioner while working as HSA in S.V.V.H.S. Miyapadavu from 19.9.1967 attained the age of superannuation on 30.9.93. As per the provision contained in the Kerala Service Rules, being a teaching staff, the petitioner was entitled to continue in service till the end of the academic year. But the petitioner was not entitled to any leave except casual leave as per Ruling No. 2 of Rule 60 of Part I, KSR. The petitioner had applied for commuted leave for nine days for the period from 9.12.93 to 17.12.93 vide application dated 3.12.93. As per the provisions contained in the Kerala Service Rules from the date of commencement of leave, service of the petitioner would stand terminated. Accordingly, the order was issued treating the petitioner retired from service with effect from 9.12.93, the date of the availing leave. Later, the pay of the petitioner was re-fixed as Rs. 2070 w.e.f. 15.7.93 and Rs. 2240 w.e.f. 15.7.94 and the liability certificate showing the liability of Rs. 16,297 was issued being the irregular payment of pay and allowances from 9.12.1993 to 31,3.1994.
4. Ruling No. 2 of Rule 60 of Part I, KSR reads as follows:
The teaching staff of educational institutions, who are allowed to continue in service beyond the date of superannuation till the end of the academic year will not be eligible for any leave other than casual leave during the period of their service beyond the date of superannuation and if they apply for any leave other than casual leave during the period they shall be retired from service from the date of such application for leave.
5. The Hon'ble High Court has held that the aforesaid statutory provision is binding not only on the Departmental official who has paid the amount but also on the recipient of the amount. Overlooking the aforesaid statutory provision contained in Ruling No. 2 of Rule 60 of Part I, KSR, the petitioner was allowed to draw excess amount due to a mistake. Due to mistake, if any amount is paid to an employee over looking the statutory provision, the employee should not have received the amount since the employee is also equally bound by the statutory provision. The employee should have refused the payment since the payment was effected contrary to statutory provisions. According to the Hon'ble High Court, the public interest shall not suffer due to mistake committed by an officer who had paid the amount and the person who has received the amount. It was, therefore, held that when a mistake is mutual that is to be shared by both parties. The person who pays the amount is on the legitimate belief that the person who receives the amount is entitled to receive it and the person who received the amount is on the belief that he is entitled to receive the same. Mistake in such a situation, according to the Hon'ble High Court, is mutual and consequently the same has to be set right in public interest, unless there is statutory bar in recovering the amount.
6. The contention of Mr. Sunil Shanker, Counsel for the respondents was that in view of judgment of the Hon'ble High Court of Kerala in Santhakumari P.J. v. Stale of Kerala and Ors. (supra), the present O.A. was also liable to be dismissed.
7. In our considered opinion, the judgment of the Hon'ble High Court of Kerala in Santhkumari P.J- (supra) cannot be made applicable to the present case. As the facts in both cases arc different and distinguishable. In the case of Santhakumari (supra), the Hon'ble High Court found that the over payment made to the petitioner was in violation of the statutory provisions contained in Rule 60 of KSR, Part I. In the present case, the applicants have no reason to refuse the payments made to them on account of stepping up of their pay at par with the junior employee identified by the respondents themselves. There were no requests from the part of the applicants for re-fixation of pay in comparison to Mrs. Abha Mishra, TGT of KV, Noida. The arrears of pay received by them was also not against any statutory provisions. The case in hand is more in line with the judgments of the Hon'ble Supreme Court which held that in those cases the employees received the higher scale for none of their faults, the arrears already paid cannot be recovered. The Apex Court has also restrained the Government Departments from recovering the arrears paid long back in cases where no notice was given to the affected persons and in those cases the employees received the excess pay not because of their misrepresentation of facts. However, the Apex Court has allowed recovery in those cases where the officer concerned has claimed financial benefits which they are not entitled to and the Departments have given those benefits by mistake. In certain cases where recovery was found justifiable, the Apex Court directed the respondents to recover the excess amount paid in easy instalments.
8. The Hon' ble Supreme Court in Shyam Babu Verma and Ors. v. Union of India and Ors. considered the question of recovery of amount of higher pay scale erroneously given to the petitioner since 1973 and the pay scale was reduced in 1984 and was held that since the petitioner received the higher scale due to no fault of theirs it shall only be just and proper not to recover any excess amount already paid to them. The directions of the Apex Court contained in Para 11 of the said judgment can be profitably reproduced as under:
Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January, 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they have received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same.
9. In Nand Kishore Sharma and Ors. v. State of Bihar and Ors. 1995 (Supp) SCC 722 the Apex Court has been considering the same question of recovery of over-payment on wrong fixation of pay and held as under:
We agree with the High Court that unless there was an order of the Government sanctioning and granting revised pay scales to the appellants, they were not entitled to claim the same. But at the same time, we are of the view that the appellants cannot be blamed. The Anomaly Committee recommended grant of higher pay scales of them. The Finance Department also concurred with the same and as a result thereafter the appellants were given the pay scales and were disbursed the arrears as a lump-sum, Having paid the arrears to the appellants, the State Government could not have reversed the same specifically without complying with the rules of natural justice. It is not disputed that no opportunity was afforded to the appellants before passing the order of recovery. We, therefore, grant limited relief to the appellants to the extent that we quash the order directing recovery of the amount paid to the appellants in the year 1981. The State Government shall not effect recovery of the arrears in the revised pay scale for the period from 1.1.1976 to 1.1.1981. We, however, agree with the High Court that the appellants were not entitled to the revised pay scale and as such we hold that it was rightly withdrawn from them.
10. In Sahib Ram v. State of Haryana and Ors. 1994 (5) SLR 753 : 1995 (1) SLJ 151 (SC) the Hon'ble Supreme Court held as under:
Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of 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. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission.
11. In the case of P.H. Reddy and Ors. v. NTRD and Ors. the question of recovery of excess amount on
erroneous fixation of pay has been considered by the Hon'ble Supreme Court. In that case, on re-employment of the petitioners their pay had been fixed at a particular sum on the basis of the relevant Government circulars applicable for fixation of pay but later on, the pay was re-fixed by the appropriate authority and the direction was issued for recovery of the excess amount already paid to these appellants. Dismissing the appeals the Hon'ble Apex Court has held as under:
In our view, therefore, the judgment of this Court in the Director General, ESI, represents the correct view and consequently the order of re-fixation done by the appropriate authority, in the case in hand, does not require any interference, but the
employees-appellants who had been in receipt of a higher amount on account of erroneous fixation by the authority should not be asked to re-pay the excess pay drawn, and therefore, that part of the order of the authority is set aside. The direction of the appropriate authority requiring reimbursement of the excess amount drawn is annulled.
12. In V. Gangaram v. Regional Joint Director and Ors. the Hon'ble Supreme Court was considering the case of the appellant who was originally appointed as a Teacher/Headmaster in a private aided school on 9.11.1959 in the scale of Rs, 45-120. After his passing Secondary Grade Degree Training Examination in the year 1967, he was granted on 1.12.1967 SGBT scale of Rs. 80-150 w.e.f. the aforesaid date. In view of the fact that the appellant went on improving his qualifications by B.A., M.A., 'B.Ed., and M.Ed., the authorities went on giving revision of the pay scale granting advance increments as and when he acquired the qualification on the pay scale applicable at the relevant time. The impugned proceedings were issued to recover the said amount paid him on the premise that he was not entitled to more than two advance increments. The Tribunal has dismissed the petition. Thus this appeal by special leave. The Apex Court while disposing of the Appeal held as under:
Thus, it could be seen that he is entitled to the revised scale of pay giving the additional increments on two qualifications, namely, M.A. and M.Ed., and, therefore, he is entitled to the computation of the scale of pay then applicable to him prior to the date of immediate month in which examination was conducted of the scale of pay plus two additional increments. He is not entitled to the four increments, as successively claimed. We hold that he is entitled to only two increments, as indicated above. Since the Department itself has adopted the above approach, we direct that arrears paid prior to 1985 are not to be recovered and excess amount from 1985 is liable to be recovered from the pension payable to the appellant. The instalment should be proportionately distributed so as not to cause any undue hardship.
13. The Hon'ble Supreme Court has considered the same issued in another Civil Appeal titled Comptroller and Auditor General of India and Ors. v. Farid Sattar . Farid Sattar joined as an Auditor in the Office of the Accountant General (A & E), West Bengal on 16.2.1982. Consequent on the bifurcation of Audit and Accounts, the respondent was transferred to the Office of the Accountant General (A & E), West Bengal on 1.11.1985. The respondent opted for the accounts wing and as such he was retained there and subsequently promoted to the post of Senior Accountant on 4.12.1987. In December, 1990, the respondent while officiating on the post of Senior Accountant applied for mutual transfer with one Shri Paresh Ghosh, Senior Accountant, working in the Office of the Senior Deputy Accountant General (A & E). Sikkim. As mutual transfer was not permissible in the cadre of Senior Accountant, the respondent was advised to apply for unilateral transfer after seeking reversion to the lower post of Accountant as a direct recruit. In pursuance of the1 advice tendered, the respondent applied for unilateral transfer in the cadre of Accountant foregoing the status of a Senior Accountant, in the office of the Senior Deputy Accountant General (A & E), Sikkim in July, 1992 and he was permitted to take such transfer on certain terms and conditions. The pay scale of Senior Accountant at the relevant time was Rs. 1400-2600, whereas, the pay scale of Accountant was Rs. 1200-2040, the respondent having accepted the terms and conditions of unilateral transfer was posted as an Accountant in the pay scale of Rs. 1200,-2040. However, his pay was erroneously fixed at Rs. 1560, which he was drawing in the pay scale of Rs. 1400-2600 prior to his reversion to the lower post. Subsequently, it was found that the fixation of pay of the respondent at the stage of Rs. 1560 was due to some mistake and, therefore, by a Memorandum dated 8.11.1994 the pay of the respondent was directed to be refixed and a further direction for recovery of excess payment made to the respondent was also issued. It is at this stage the respondent filed original application before the Central Administrative Tribunal, Calcutta, challenging the Memorandum dated 8.11.1994 contending that the pay which he was drawing as Senior Accountant viz. Rs. 1560 in the pay scale of Rs. 1400-2600 has to be protected even if he was reverted to the lower post of Accountant on transfer and re-fixation of his pay at a lower stage, and recovery of the alleged excess payment of salary is unwarranted. The appellants herein disputed the contentions of the respondent, inter alia, on the ground that the respondent was bound by the terms and conditions of the unilateral transfer and as on acceptance of such terms and conditions, the respondent was required to tender technical resignation from the post of Senior Accountant and had to join as a direct recruit on the lower post of Accountant ranking junior most in the cadre of Accountant. It was also contended that on such a transfer the pay of the transferee is not required to be protected and his pay was to be fixed as a direct recruit on the lower post in which post he was reverted. It was held that the respondent on his own volition sought transfer on certain terms and conditions and accepted by him. The terms and conditions on unilateral transfer are very clear and there is no ambiguity in it. If a transfer is not contemplated under Fundamental Rules it is not necessarily to be governed by the Fundamental Rules but by the terms and conditions of such unilateral transfer. The pay of the respondent had to be fixed with reference to the lower pay scale and not with reference to the pay drawn by him in the higher post since he was to be considered as a direct recruit to the lower post. Under the terms and conditions of the transfer, the pay which the respondent was drawing on higher post was not required to be protected when he joined the lower post of Accountant. For the above reasons the Hon'ble Court has allowed the present C.A. permitting the appellant for recovery of excess pay paid to the respondent concerned.
14. In Union of India and Ors. v. Sujatha Vedachalam and Anr. , the Hon'ble Supreme Court was considering the case of the respondent where she was working as a Senior Accountant in the pay scale of Rs. 1400-2600 in the office of the Accountant General, Madhya Pradesh at Nagpur and was drawing the pay of Rs. 1260 per month. Subsequently for personal reasons, the respondent sought transfer to the Office of the Accountant General, Karnataka at Bangalore. Her request for transfer was accepted and one of the conditions of the transfer was that the respondent was to technically resign from the post which she was holding and she was to join as direct recruit to a lower post of Clerk in the pay scale of Rs. 950-1500. After the transfer to the lower post her pay was erroneously fixed at Rs. 1250 per month. Subsequently the mistake came into light and her pay was fixed at Rs. 1070 by order dated 1.12.95. The order of recovery of excess pay to the respondent was passed. The respondent challenged the said order before this Tribunal and the Tribunal allowed the original application filed by the respondent and the writ petition filed by the appellants was dismissed. The Apex Court on the question of recovering the excess pay passed the following orders:
For the reasons stated in Civil Appeal No. 13020/96 titled Comptroller and Auditor General of India and Ors. v. Farid Sattar decided today a decision of this Court in Special
Leave Petition No. 9324/96 titled Chandan Saha v. Union of India and Ors. decided on 25.4.96 the impugned orders and judgments under appeal are set aside. Both these appeals are allowed. There shall be no order as to costs. However, so far as recovery of excess pay paid to the respondents is concerned, the appellants may recover the said amount in easy instalments which may be spread over for fifteen years or till the date of retirement whichever is earlier.
15. This Tribunal has also been following the principle laid down by the Hon'ble Supreme Court regarding recovery of excess payment in a number of its orders. In the case of Neelakanta Shaha v. Union of India and Ors. 1987 (3) SLJ (CAT) 306, the Calcutta Bench of this Tribunal decided a case where recovery of over payment of more than 13,000 due to wrong fixation of pay was involved. The Government ordered the recovery of the 50% of this amount waiving the balance of dues on compassionate grounds. But this recovery was not allowed from the applicant. In the said judgment dated 11.2.87 the Division Bench observed as follow:
When the applicant was given the benefit of revised pay, he was not aware that he would have to pay back the excess amount drawn and he spent the amount according to the pay scale that he enjoyed. Any deductions at this late stage definitely causes hardship to the applicant. It is also quite clear that the applicant was not responsible or for the non-detection of the mistake of the Department for a long seven years.
16. Again the case of C.S. Bedi v. Union of India AIR 1988 (2) CAT 577, the Principal Bench of this Tribunal had held that rectification of an error resulting adverse civil consequences to an employee cannot be done without issuing to him show cause notice. Para 15 of the judgment in C.S. Bedi's case is reproduced below:
15. I will even assume that there was a mistake in the fixation of pay of the applicant and that mistake came to the light of the authorities only in 1986 and that mistake is even rightly sought to be corrected by them. Whether in such circumstances, recoveries should be permitted or not came up for consideration before a Division Bench of the Calcutta Bench of this Tribunal in Nilkantha Shah's case where the delay was only 7 years as against 16 years in the present case. In upholding the claim in that case that in such cases recoveries should not be permitted, the Division Bench expressed thus:
7. We have, however, taken into account the fact that the respondents took more than seven years in detecting their mistake regarding wrong fixation which resulted in overpayment of more than Rs. 13,000 and even after waiver of 50% on compassionate grounds, the applicant is required to pay back more than Rs. 6,000 from his salary. When the applicant was given the benefit of revised pay, he was not aware that he would have to pay back the excess amount drawn and he spent the amount according to the pay scale that he enjoyed. Any deduction at this late stage definitely causes hardship to the applicant. It is also quite clear that the applicant was not responsible for the non-detection of the mistake of the Department for a long seven years.
17. Later the Bombay Bench of this Tribunal in Vithal Dagdoo Marathe v. General Manager Central Railway and Ors. AIR 1989 (2) CAT 65 followed the orders passed in C.S. Bedi's case (supra) and Nilakant Shah's case (supra).
18. The Guwahati Bench of this Tribunal in Govinda Sinha and Ors. v. Garrison Engineer Narangi Division P.O. Satgarh Guwahati and Ors. 1991 (1) SLJ (CAT) 74 has again the followed the orders of this Tribunal in Neelakanta Shah and C.S. Bedi (supra) and directed the respondents that no difference of pay and allowances caused due to the fitments of the applicants in the scale of Rs. 330-480 and revised fitments done subsequently after lapse of years, in the pay scale of Rs. 260-400 shall be recovered by the respondents.
19. The Madras Bench of this Tribunal in the case of K.S. Shridharan and Ors. v. Union of India and Ors. 1991 (1) SLJ 229 similar view was taken and the orders of recovery of alleged excess payment from the reitral benefits of the applicants was set aside.
20. Again the Bombay Bench of this Tribunal in Sri Chamel Singh v. Union of India and Ors. 1992 (1) SLJ 315 following the orders in the case Neelakanta Shah v. Union of India and Ors. (supra) and K. Shrindharan and Ors. v. Union of India and Ors. 1991 (2) SLJ 230 held that recovery of over payment ordered due to wrong fixation of pay after long years of payment will cause hardship to the employees concerned and accordingly the orders of recovery have been quashed and set aside.
21. Various High Courts have also been following the law laid down by the Hon'ble Supreme Court in Sahib Ram's case (supra) and Shy am Babu's case (supra). The Madhya Pradesh High Court in the case of Mohd. Abdul Waheed v. APSEB Hyderabad and Anr. 2000 (1) SLR 283 following the aforesaid judgment of the Hon'ble Supreme Court held:
The Supreme Court has no more than one occasion held that if excess payment is made by the Management/employer to the employee due to its own error in computing the pay of the employee after long period, the employer should not recover the excess payment made by him if there was no fault of misrepresentation made by the employee. The learned Counsel for the petitioner has referred to the decisions in Sahib Ram v. State of Haryana 1995 (Supp) (1) SCC 18 : (1994) 5 SLR 753 (SC) and Nand Kishore Sharma and Ors. v. State of Bihar and Ors. 1995 Supp.(3) SCC 722. In both these cases the employee was granted a pay scale to which the said employee was not entitled. The error was wholly of the employer. The employee had not by any act of his claimed or represented for such an erroneous excess payment. The Supreme Court pointed out that the employer should not make recovery of such excess payment made on account of mistake of the employer himself. Particularly so when no show-cause notice was given. I think that the same principle has to be followed in the instant case, more so because the petitioner has peacefully retired on superannuation long before the impugned memo of recovery was issued. Hence following the principle laid down by the Apex Court in the aforesaid cases, the second writ petition i.e., W.P. No. 9418 of 1995 is also allowed by making Rule absolute.
22. The Rajasthan High Court in the case of State of Rajasthan v. Ram Narai 2002 (4) SLR 793 followed the principles laid down by the Hon'ble Supreme Court in Shyam Babu v. Union of India and Ors. (supra) and held that if excess salary is paid to a person and there was no mistake on his part, that the State Government cannot be permitted to recover such excess amount paid to other teachers. Based on the judgment of the Hon'ble Supreme Court in the case of Shyam Babu (supra) the Hon'ble High Court has held that the judgment and order dated 26.3.99 passed by the Rajasthan Civil Services Appellate Tribunal Bench at Jodhpur cannot be interfered with because the same was passed based on the judgment of the Hon'ble Supreme Court in Shyam Babu's case (supra).
23. The Punjab and Haryana High Court (DB) in Jatinder Kumar Grover v. State of Punjab and Ors. 2003 (1) SLR 669 has again relied upon the judgment of the Hon'ble Supreme Court in Sahib Ram v. State of Harayana (supra.) wherein it has been held as under:
However, it is not on account of any misrepresentation made by the appellant that the benefit of 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.
24. The Punjab and Haryana High Court (DB) again in Tej Singh Retired Superintendent v. State of Punjab and others
following the judgment in Sahib Rain's case (supra) held that the respondents are at liberty to re-fix the pay of the petitioner but cannot recover the amount paid in excess for the past period. The operative part of the said judgment isneproduced as under:
The recovery is sought to be effected without complying with the principles of natural justice and giving an opportunity of hearing. The recovery could be set aside on this short ground alone. However, we have gone through the order to find out that justification in passing the impugned order. The pay of the petitioner was stepped up by the respondent without any misrepresentation on the part of the petitioner. Learned Counsel for the petitioner has relied upon Sahib Ram v. State of Haryana 1995 (1) SCT 668 : 1994 (5) SLR 753 (SC) to contend that the recovery cannot be effected if there is no misrepresentation on the part of the petitioner. Therefore, the mere fact that the pay of the petitioner was wrongly fixed is not a ground to make recovery from the petitioner.
In view of above, we find that the order Annexure-P 7 is wholly illegal, violative and against the principles of natural justice and is thus, liable to be set aside. The respondents are, however, at liberty to re-fixed the pay of the petitioner but cannot recover the amount paid in excess for the past period.
25. The Jharkand High Court in Bharat Prasad Choudhary v. Jharkhand State Electricity Board and Ors. 2003 (5) SLR 319 considered the question of recovery from gratuity, the benefits of promotion and fixation of pay given to the petitioner years before. In this case also the Hon'ble High Court has relied upon the judgment of the Hon'ble Supreme Court in Sahib Ram v. State of Harayana and Ors. (supra) and held that there being no misrepresentation on the part of the petitioner, more than 20 years having passed after the pay fixation and in view of the decision of the Hon'ble Supreme Court and that Court itself in other cases, the respondents have to be restrained from recovery of any amount from the gratuity of the petitioner.
26. In our considered view, the aforesaid orders of the Hon'ble High Court in Santhakumari's case (supra) does not come in the way of the present O.A. in disposing it of on the same lines it has been done in O.As. 837/04 and 845/04 (supra) which in turn was based on the Apex Court's judgments in Shyani Babu Venna's case (supra) and in Sahib Ram's case (supra). We accordingly allow this O.A. making it clear that the impugned order is quashed only to the extent that it orders recovery of over payment. However, the other part of the order regarding fixation of the pay of the applicants cannot be faulted and the same is upheld. No order as to costs.