2013 PLP 552 (SCMR)

K. S. RADHAKRISHNAN, J.

Leave granted.

2. The question that arises for consider ation in this appeal is whether over-pay ment of amount due to wrong fixation of 5th and 6th pay scale of teachers/princi pals based on the 5th Pay Commission Re port could be recovered from the recipi ents who are serving as teachers. The Di vision Bench of the High Court rejected the writ petition filed by the appellants and took the view that since payments were ef fected due to a mistake committed by the District Education Officer, the same could be recovered. Aggrieved by the said judg ment, this appeal has been preferred.

3. Shri Shivam Sharma, learned counsel appearing for the appellants, fairly submit ted that the payments were effected due to a mistake but not due to any misrepresen tation or fraud committed by the appellants and hence the decision taken to recover the amount is not legal. For establishing his contention, reliance was placed on several judgments of this Court like Shyam Babu Verma v. Union of India [(1994) 2 SCC 521], Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18] : (1995 AIR SCW 1780), State of Bihar v. Pandey Jagdishwar Prasad [(2009) 3 SCC 117] : (2009 AIR SCW 595), and Yogeshwar Prasad and others v. National Institute of Education Planning and Admin istration and others [(2010) 14 SCC 323] : (2010 AIR SCW 7136).

4. Mrs. Rachana Srivastava, learned counsel appearing for the respondent-State, took us through the counter-affidavit filed by the State before this Court and submit ted that the over-payment was effected due to wrong fixation of pay. Learned counsel also submitted that where the payments have been made under a bona fide mistake, the beneficiaries have no right to retain the same. Learned counsel placing reliance on the judgment of this Court in Col. B.J. Akkara (Retd.) v. Government of India and others [(2006) 11 SCC 709] : (2006 AIR SCW 5252) submitted that the High Court has correctly exercised its discretion in reject ing the writ petition after having found that the payments were effected due to wrong fixation of pay scale and this Court under Article 136 of the Constitution of India shall not interfere with the discretion exer cised by the Hon'ble High Court. Reliance was also placed on another judgment of this Court in Syed Abdul Qadir and others v. State of Bihar and others [(2009) 3 SCC 475] : (2009 AIR SCW 1871) and submitted that, this court granted relief in that case since many of the teachers had retired from the service while in the present case all the appellants are still in service.

5. Parties are not in conflict on facts, however reference to few essential facts are necessary for a proper disposal of this ap peal. Appellants, herein, had filed the writ petition before the High Court seeking a writ of certiorari to quash, an inter-depart mental communication dated 24-10-2009 followed by a letter dated 18-11-2009 is sued by the District Education Officer to the Manager/Principal of few Sanskrit Col leges in Haridwar where excess payments were made due to wrong fixation of pay. The operative portion of the communica tion dated 24-10-2009 reads as follows:-- "Through this meeting it has come to my knowledge that there is no similarity in the fixation of revised 5th pay scale through out the State. Some of the District Educa tion Officers have not taken into consider ation the letters issued by this office and fixed pay scales as a result there is no simi larity in the fixation of pay scale and there fore confusion has arisen among the dif ferent classes of teachers. For adjudication of the same and to bring similarity in the fixation of pay scale and to avoid any dif ficulty in the future, again you are hereby directed about the pay fixation through en closures. If pay fixation has been done by you as per the letters of this office then it is O.K. otherwise it will be fixed later on. If it has been fixed already, then the remain ing salary can only be paid after availabil ity of the amount in this office and you are requested to send demand letter to this of fice for release of the remaining amount. In case of fixation of payment contrary to the letters of this office, the remaining amount be not released."

6. Further, in the letter dated 18-11-2009, the District Education Officer had informed the Manager/Principal of the colleges as follows:-- "With this letter a copy of model pay fixation form is being forwarded towards you so that you may ensure the correct fixation of 5th and 6th pay scale of the teachers/principals of your schools. You are re quested to kindly fix the pay scale as per model pay fixation form. You are further requested to kindly make ensure to make available the revised pay scale form and service register to the finance officer, school education Haridwar and the under signed as early possible. Only thereafter the salary of the concerned principals/teachers shall be issued and further deposit the challan in respect of excess payment in the treasury. The teachers whose pay has been wrongly fixed are as follows:- (1) Sh. Jagdish Prasad, Teacher (Literature), Sh. Jagdevsingh, Sanskrit Mahavidhyalaya, Haridwar; (2) Sh. Markandey Prasad Semwal, Teacher, Sh. Udashin Sanskrit Mahavidhyalaya, Haridwar; (3) Sh. Chandi Prasad Uniyal, Principal, Sh. Nirmal Sanskrit Mahavidhyalaya, Kankhal, Haridwar." Appellants herein are some of the teach ers named in that letter; similar communi cations had gone to few other institutions, where appellants work.

7. We may point out indisputedly, the appellants 1 and 2 herein were not in the pay scale of Rs.4,250-6,400 as such they could not have got the revised pay scale of Rs.10,000 - 15,200 w.e.f. 1-7-2001. Only if they were getting pay scale of Rs.8,000 - 13,500 on 1-1-1996, they would have been entitled to be placed in the pay scale of 10,000 - 15,200 as on 1-7-2001. Fur ther, appellants 3 to 5 were working as As sistant Teachers and drawing in pay scale of Rs.3,600 - 5,350 as on 1-1-1996 and were placed in the pay scale of Rs.5,500 - 9,000 as on 1-7-2001. Further, it was noticed that none of the appellants were working as principals and were never placed in the pay scale of 8,000 - 15,500 as on 1-1-1996 to get the benefit of the pay scale of 10,000 - 15,200 as on 1-7-2001. We also find only few persons like the ap pellants have been getting higher pay scale in the district of Haridwar w.e.f. 1-7-2001 and similarly situated persons in the rest of Uttarakhand are getting the same pay scale of Rs.10,000 - 15,200 only from 11-12-2007 and it was to rectify this anomaly, the District Education Officer, Haridwar passed the order dated 24-10-2009.

8. We may also indicate that when the revised pay scale/pay fixation was fixed on the basis of the 5th Central Pay Scale, a condition was superimposed which reads as follows:-- "In the condition of irregular/wrong pay fixation, the institution shall be responsible for recovery of the amount received in excess from the salary/pension." The appellants are further bound by that condition as well. The facts, mentioned hereinabove, would clearly demonstrate that the excess salary was paid due to ir regular/wrong pay fixation by the concerned District Education Officer. The question is whether the appellants can retain the amount received on the basis of irregular/wrong pay fixation in the absence of any misrepresentation or fraud on their part, as contended.

9. We are of the considered view, after going through various judgments cited at the bar, that this court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregu lar/wrong fixation of pay be recovered.

10. Shyam Babu Verma case (supra) was a three-Judge Bench judgment, in that case the higher pay scale was erroneously paid in the year 1973, the same was sought to be recovered in the year 1984 after a pe riod of eleven years. The court felt that the sudden deduction of the pay scale from Rs.330-560 to Rs.330-480 after several years of implementation of said pay scale had not only affected financially but even the seniority of the petitioners. Under such circumstance, this Court had taken the view that it would not be just and proper to re cover any excess amount paid.

11. In Sahib Ram case (1995 AIR SCW 1780) (supra), a two-Judge Bench of this Court noticed that the appellants therein did not possess the required educational quali fication and consequently would not be entitled to the relaxation but having granted the relaxation and having paid the salary on the revised scales, it was ordered that the excess payment should not be recov ered applying the principle of equal pay for equal work. In our view, this judgment is inapplicable to the facts of this case. In Yogeshwar Prasad case (2010 AIR SCW 7136) (supra), a two-Judge Bench of this Court after referring to the above men tioned judgments took the view that the grant of higher pay could not be recovered unless it was a case of misrepresentation or fraud. On facts, neither misrepresenta tion nor fraud could be attributed to appel lants therein and hence, restrained the re covery of excess amount paid.

12. We may in this respect refer to the judgment of two-Judge Bench of this Court in Col. B.J. Akkara (Retd.) case (2006 AIR SCW 5252) (supra) where this Court after referring to Shyam Babu Verma case, Sahib Ram case (supra) and few other decisions held as follows:-- "Such relief, restraining recovery back of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hard ship that will be caused if recovery is imple mented. A Government servant, particu larly 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 pe riod, he would spend it genuinely believing that he is entitled to it. As any subse quent 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 particu lar case refuse to grant such relief against recovery."

13. Later, a three-Judge Bench in Syed Abdul Qadir case (2009 AIR SCW 1871) (supra) after referring to Shyam Babu Verma, Col. B.J. Akkara (Retd.) etc. re strained the department from recovery of excess amount paid, but held as follows:-- "Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Depart ment had, in its counter-affidavit, admit ted 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 appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned Counsel appearing on behalf of the appellants-teachers submit ted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made. (Emphasis added)"

14. We may point out that in Syed Abdul Qadir case (2009 AIR SCW 1891) such a direction was given keeping in view of the peculiar facts and circumstances of that case since the beneficiaries had either re tired or were on the verge of retirement and so as to avoid any hardship to them.

15. We are not convinced that this Court in various judgments referred to hereinbe fore has laid down any proposition of law that only if the State or its officials estab lish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.

16. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

17. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (2009 AIR SCW 1871) (supra) and in Col. B.J. Akkara (Retd.) case (2006 AIR SCW 5252) (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered.

18. Appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order the excess payment made be recovered from the appellant' salary in twelve equal monthly instalments starting from October, 2012. The appeal stands dismissed with no order as to costs. I.As. Nos.2 and 3 are disposed of. MWA/4/SC-IND Appeal dismissed.