REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5899 OF 2012
@ Special Leave Petition (C) No. 30858/2011
(with I.A. Nos.2 and 3)
Chandi Prasad Uniyal & Ors. .. Appellants
Versus
State of Uttarakhand & Ors. .. Respondents
J U D G M E N T
K. S. RADHAKRISHNAN, J.
1. Leave granted.
2. The question that arises for consideration in this appeal is whether
over-payment of amount due to wrong fixation of 5th and 6th pay scale of
teachers/principals based on the 5th Pay Commission Report could be
recovered from the recipients who are serving as teachers. The Division
Bench of the High Court rejected the writ petition filed by the appellants
and took the view that since payments were effected due to a mistake
committed by the District Education Officer, the same could be recovered.
Aggrieved by the said judgment, this appeal has been preferred.
3. Shri Shivam Sharma, learned counsel appearing for the appellants,
fairly submitted that the payments were effected due to a mistake but not
due to any misrepresentation 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], State of Bihar v. Pandey Jagdishwar
Prasad [(2009) 3 SCC 117] and Yogeshwar Prasad and Ors v. National
Institute of Education Planning and Administration and Ors. [(2010) 14 SCC
323].
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 submitted 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 Ors.
[(2006) 11 SCC 709] submitted that the High Court has correctly exercised
its discretion in rejecting 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 exercised by the Hon’ble High Court. Reliance was also placed
on another judgment of this Court in Syed Abdul Qadir and Ors. v. State of
Bihar and Ors. [(2009) 3 SCC 475] 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 appeal.
Appellants, herein, had filed the writ petition before the High Court
seeking a writ of certiorari to quash, an inter-departmental communication
dated 24.10.2009 followed by a letter dated 18.11.2009 issued by the
District Education Officer to the Manager/Principal of few Sanskrit
Colleges in Hardwar where excess payments were made due to wrong fixation
of pay. The operative portion of the communication 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 throughout the
State. Some of the District Education Officers have not taken into
consideration the letters issued by this office and fixed pay scales
as a result there is no similarity in the fixation of pay scale and
therefore confusion has arisen among the different classes of
teachers. For adjudication of the same and to bring similarity in
the fixation of pay scale and to avoid any difficulty in the future,
again you are hereby directed about the pay fixation through
enclosures. 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 remaining salary can only be
paid after availability of the amount in this office and you are
requested to send demand letter to this office 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 & 6th pay scale of the teachers/principals of your schools. You
are requested 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 Hardwar and the undersigned 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, Hardwar ;
2. Sh. Markandey Prasad Semwal, Teacher, Sh. Udashin Sanskrit
Mahavidhyalaya, Hardwar ;
3. Sh. Chandi Prasad Uniyal, Principal, Sh. Nirmal Sanskrit
Mahavidhyalaya, Kankhal, Hardwar.”
Appellants herein are some of the teachers named in that letter; similar
communications 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. 01.07.2001. Only if they
were getting pay scale of Rs.8000-13,500/- on 01.01.1996, they would have
been entitled to be placed in the pay scale of 10,000-15,200 as on
01.07.2001. Further, appellants 3 to 5 were working as Assistant Teachers
and drawing in pay scale of Rs.3,600-5,350/- as on 01.01.1996 and were
placed in the pay scale of Rs.5,500-9,000 as on 01.07.2001. 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 01.01.1996 to get the
benefit of the pay scale of 10,000-15,200 as on 01.07.2001. We also find
only few persons like the appellants have been getting higher pay scale in
the district of Haridwar w.e.f. 01.07.2001 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 irregular/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
irregular/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 period 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 recover any excess amount paid.
11. In Sahib Ram case (supra), a two-Judge Bench of this Court noticed
that the appellants therein did not possess the required educational
qualification 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 recovered
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 (supra), a two-Judge Bench of this Court after referring to the above
mentioned judgments took the view that the grant of higher pay could be
recovered unless it was a case of misrepresentation or fraud. On facts,
neither misrepresentation nor fraud could be attributed to appellants
therein and hence, restrained the recovery 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 (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 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.”
13. Later, a three-Judge Bench in Syed Abdul Qadir case (supra) after
referring to Shyam Babu Verma, Col. B.J. Akkara (retd.) etc. restrained 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
Department had, in its counter affidavit, 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 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
submitted 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 such a direction was
given keeping in view of the peculiar facts and circumstances of that case
since the beneficiaries had either retired 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
hereinbefore has laid down any proposition of law that only if the State or
its officials establish 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 (supra) and in Col. B.J. Akkara
(retd.) case (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’s
salary in twelve equal monthly installments starting from October 2012.
The appeal stands dismissed with no order as to costs. IA Nos.2 and 3 are
disposed of.
…………………………………….........J.
(K.S. Radhakrishnan)
………………………………………………J.
(Dipak Misra)
New Delhi,
August 17, 2012
