K.S.P Radhakrishnan, J.— Leave granted. The question that arises for consideration in this appeal is whether overpayment of amount due to wrong fixation of 5th and 6th Pay Scales 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.
2. 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, (1994) 27 ATC 121, 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 v. National Institute of Education Planning and Admn. (2010) 14 SCC 323
3. Ms 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 overpayment was effected due to wrong fixation of pay. The 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. The learned counsel placing reliance on the judgment of this Court in Col. B.J Akkara v. Govt. of India (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 v. State of Bihar (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.
4. The parties are not in conflict on facts, however reference to a few essential facts is necessary for the proper disposal of this appeal. The appellants herein had filed a 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 Managers/Principals of few Sanskrit colleges in Haridwar 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 okay 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 a 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.”
5. Further, in the Letter dated 18-11-2009, the District Education Officer had informed the Managers/Principals 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 Scales of the teachers/principals of your schools. You are requested to kindly fix the pay scale as per the model pay fixation form. You are further requested to kindly make sure to make available the revised pay scale form and service register to the Finance Officer, School Education, Haridwar and the undersigned as early as possible. Only thereafter the salary of the principals/teachers concerned 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. Shri Jagdish Prasad, Teacher (Literature), Shri Jagdevsingh Sanskrit Mahavidhyalaya, Haridwar;
2. Shri Markandey Prasad Semwal, Teacher, Shri Udashin Sanskrit Mahavidhyalaya, Haridwar;
3. Shri Chandi Prasad Uniyal, Principal, Shri Nirmal Sanskrit Mahavidhyalaya, Kankhal, Haridwar.”
The appellants herein are some of the teachers named in that letter; similar communications had gone to few other institutions, where the appellants work.
6. We may point out undisputedly, that Appellants 1 and 2 herein were not in the pay scale of Rs 4250-6400 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 8000-13,500 on 1-1-1996, they would have been entitled to be placed in the pay scale of Rs 10,000-15,200 as on 1-7-2001. Further, Appellants 3 to 5 were working as Assistant Teachers and drawing the pay scale of Rs 3600-5350 as on 1-1-1996 and were placed in the pay scale of Rs 5500-9000 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 Rs 8000-15,500 as on 1-1-1996 to get the benefit of the pay scale of Rs 10,000-15,200 as on 1-7-2001. We also find that only a few persons like the appellants 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.
7. 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 District Education Officer concerned. 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.
8. We are of the considered view, after going through the 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.
9. Shyam Babu Verma case (1994) 2 SCC 521, (1994) 27 ATC 121 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 the 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.
10*. In Sahib Ram case 1995 Supp (1) SCC 18 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 (2010) 14 SCC 323, a two-Judge Bench of this Court after referring to the abovementioned 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 misrepresentation nor fraud could be attributed to the appellants therein and hence, this Court restrained the recovery of the excess amount paid.
11. We may in this respect refer to the judgment of a two-Judge Bench of this Court in Col. B.J Akkara case (2006) 11 SCC 709 where this Court after referring to Shyam Babu Verma case (1994) 2 SCC 521, (1994) 27 ATC 121, Sahib Ram case 1995 Supp (1) SCC 18 and a few other decisions held as follows: (Col. B.J Akkara case (2006) 11 SCC 709)
“28. 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.”
12. Later, a three-Judge Bench in Syed Abdul Qadir case (2009) 3 SCC 475, after referring to Shyam Babu Verma (1994) 2 SCC 521, (1994) 27 ATC 121, Col. B.J Akkara (2006) 11 SCC 709, etc. restrained the department from recovery of excess amount paid, but held as follows: (Syed Abdul Qadir case (2009) 3 SCC 475)
“59. Undoubtedly, the excess amount that has been paid to the appellant 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 appellant 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 appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.”
(emphasis added)
We may point out that in Syed Abdul Qadir case (2009) 3 SCC 475 such a direction was given keeping in view 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.
13. 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 were on the verge of retirement or were occupying lower posts in the administrative hierarchy.
14. We are concerned with the excess payment of public money which is often described as “taxpayers' money” which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in in such situations. The 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 the 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 the 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.
15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (2009) 3 SCC 475 and in Col. B.J Akkara case (2006) 11 SCC 709, the excess payment made due to wrong/irregular pay fixation can always be recovered.
16. The 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 that the excess payment made be recovered from the appellant's salary in twelve equal monthly instalments starting from October 2012.
17. The appeal stands dismissed with no order as to costs. IAs Nos. 2 and 3 are disposed of.