MINNAT ALI Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Counsel for the petitioner and the Standing Counsel. The grievance of the petitioner is that the opposite party no.5 has directed for making recovery of the amount of Rs.85,602/- allegedly paid in excess to the petitioner due to wrong fixation of pay. In nutshell, the case of the petitioner is that the petitioner was appointed in the work charge establishment under the opposite parties on 1.11.1973 and subsequently, on 23.8.1997, the services of the petitioner were regularized on the post of Rewinder. After regularization of his services, the fixation of pay was done by the opposite parties and in pursuance thereof, the petitioner was started getting his regular salary accordingly. All of sudden, the opposite party No.5, has passed an order on 15.11.2008 alleging that earlier fixation of pay of the petitioner was wrong and in the same order, the pay of the petitioner has re-fixed. On 29.1.2009, the opposite party No.5 has issued the impugned order directing for recovery of the amount of Rs.85,602. Learned counsel for the petitioner submits that the fixation of pay was done by the opposite parties themselves and the petitioner was nowhere at fault nor any fraud or misrepresentation was alleged on the part of the petitioner and as such, the opposite parties cannot make any recovery of the amount already paid to the petitioner. From the perusal of the record, it comes out that the impugned order has been passed without application of mind on unfounded ground. Moreover, it is also settled proposition of law that in case the higher pay scale is paid to the government employee on no fault on his party, the government shall not be entitled to recover the amount paid to the employees. In support of the petitioner's submissions, he has relied upon the cases of Bindeshwari Sahai Srivastava v. The Chief Engineer, Irrigation Department, U.P. and others [(1996) 4 UPLBEC 2634]. In the said case, the Apex Court's judgment passed in Sahib Ram v. The State of Haryana and others [JT 1995 (1) SC24] has been followed, wherein it was laid down as under:- "Admittedly the appellant does not passes the required educational. Under 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 payscale 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 scale prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." In the case of Purushottam Lal Das and others v. The State of Bihar and others [2006 AIR 5325] the Hon'ble Supreme Court has held that no recovery shall be made from the amounts already paid in respect of the promotional posts. The Apex Court in the case of Shyam Babu Verma and others v. Union of India and others [(1994) 2 Supreme Court Cases 521], has held that it shall only be just and proper not to recover any excess amount which has already been paid to them. A Division Bench of this Court in B. N. Singh v. State of U.P. [1979 ALJ 1841] has also laid down that if an employee has been paid excess wages voluntarily by the employer without there being any fraud or misrepresentation committed by the employee, the excess amount cannot be recovered from him. Relevant extract of the judgment is reproduced below:- "It is well settled principle that wages paid to an employee by an employer voluntarily in bona fide manner without there being any element of fraud or misrepresentation cannot be recovered from the employee subsequently merely on the ground that some mistake of interpretation of rules might have been committed by the employer for which the employee could not he held responsible. This view finds support from the decision of this Court in Gulab Chand v. State of U.P. Civil Misc. Writ Petition No. 1479 of 1962, decided on 19th March, 1969." In view of the aforesaid legal proposition, the writ petition deserves to be allowed. Accordingly, the writ petition is allowed. The impugned order dated 29.1.2009 is hereby quashed. It is also provided that if any amount is recovered from the salary of the petitioner, the same shall be refunded to him within a period of two months.