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TMI Blog2012 (8) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... ver 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. 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 not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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