CHANDI PRASAD UNIYAL AND ORS.versusSTATE OF UTTARAKHAND AND ORS.

                      [2012] 7 S.C.R. 307


           CHANDI PRASAD UNIYAL AND ORS.                              A
                                v.
           STATE OF UTTARAKHAND AND ORS.
              (Civil Appeal No. 5899 of 2012)
                      AUGUST 17, 2012
                                                                      B
   [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.)

      Service Law - Pay scale - Fixation of pay scale based
on 5th Pay Commission Report - Excess payment made due
to wrong/irregular pay fixation - Recovery of - Permissibility -      C
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 fr om the appellants
who were serving as teachers or whether the appellants could
retain the amount received on basis of irregular/wrong pay            D
fixation in absence of any misrepresentation or fraud on their
part - Held: Any ::lmount 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,                E
otherwise it would amount to unjust enrichment - Appellants
did not fall in any of the 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         F
of the amount received in excess from the salary/pension -
Excess payment made accordingly ordered to be recovered
from appellant's salary in twelve equal monthly installments.

    The appellants-teachers/principals filed writ petition
before the High Court seeking a writ of certiorari to quash           G
an inter-departmental communication followed by a letter
issued by the District Education Officer to the Manager/
Principal of few Sanskrit Colleges in Hardwar where
excess payments had been made due to wrong fixation
                           307                                        H
    308      SUPREME COURT REPORTS            [2012] 7 S.C.R.


A of pay. The High Court rejected the writ petition holding
  that since payments were effected due to a mistake
  committed by the District Education Officer, the same
  could be recovered.

       In the instant appeal, the appellants submitted that
8
  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 was not legal. The respondent-State, on the other
C hand, submitted that over-payment was effected due to
  wrong fixation of pay and that where payments are made
  under a bona fide mistake, the beneficiaries have no right
  to retain the same.

       The question which therefore arose for consideration
D was 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 appellants who were serving as
  teachers or whether the aRpellants could retain the
E amount received on the basis of irregular/wrong pay
  fixation in the absence of any misrepresentation or fraud
  on their part.

          Dismissing the appeal, the Court

F      HELD: 1.1. When the revised pay scale/pay fixation·
  was fixed on the basis of the 5th Central Pay Scale, a
  condition was superimposed that in the case of irregular/
  wrong pay fixation, the institution shall be responsible for
  recovery of the amount received in excess from the
G salary/pension. The appellants are bound by that
  condition. The excess salary was paid due to irregular/
  wrong pay fixation by the concerned District Education
  Officer. This Court has not laid down any principle of law
  that only if there is misrepresentation or fraud on the part
H of the recipients of the money in getting the excess pay,
 CHANDI PRASAD UNIYAL AND ORS. v. STATE OF              309
              UTTARAKHAND

the amount paid due to irregular/wrong fixation of pay be      A
recovered. [Paras 8, 9] [314-E-G, 315-A-B]

     1.2. In the instant case, excess payment of public
money is involved which is often described as "tax
payers money" which belongs neither to the officers who
                                                               B
have effected over-payment nor that of the recipients. The
concept of fraud or misrepresentation was incorrectly
brought in such situations. Possibly, effecting excess
payment of public money by Government officers, may
be due to various reasons like negligence, carelessness,       C
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        D
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       E
it would amount to unjust enrichment. Except few
instances pointed out in Syed Abdul Qadir case and in
Col. B.J. Akkara (retd.) case, the excess payment made
due to wrong/irregular pay fixation can always be
recovered. The appellants will not fall in any of these        F
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             G
salary/pension. [Paras 16, 17, 18] [317-G-H; 318-A-E]

     1.3. There is no reason to interfere with the judgment
of the High Court. However, it is ordered that the excess
payment made be recovered from the appellant's salary
                                                               H
    310     SUPREME COURT REPORTS                    [2012] 7 S.C.R.


A   in twelve equal monthly installments starting from
    October 2012. [Para 18] [318-F]

       Shyam Babu Verma v. Union of India (1994) 2 SCC 521:
  1994 (1) SCR 700; Sahib Ram v. State of Haryana 1995
B Supp (1) SCC 18: 1994 (3) Suppl. SCR 674; Yogeshwar
  Prasad and Ors v. National Institute of Education Planning
  and Administration and Ors. (2010) 14 SCC 323: 2010 (14)
  SCR 22; Col. B.J. Akkara (retd.) v. Government of India and
  Ors. (2006) 11 SCC 709: 2006 (7) Suppl. SCR 58 and Syed
C Abdul Qadir and Ors. v. State of Bihar and Ors. (2009) 3 SCC
  475: 2008 (17) SCR 917 - referred to.

       State of Bihar v. Pandey Jagdishwar Prasad (2009) 3
    sec 117: 2008 (17) SCR 297 - cited.
                          Case Law Reference:
D
          1994 (1) SCR 700             referred to      Paras 3, 10,
                                                        12, 13

          1994 (3) Suppl. SCR 674 referred to           Paras 3, 11,
                                                        12
E
          2008 (17) SCR 297            cited            Para 3

          2010 (14) SCR 22             referred to      Paras 3, 11,

          2006 (7) Suppl. SCR 58       referred to      Paras 4, 12,
F                                                       13

          2008 (17) SCR 917            referred to      Paras 4, 13,
                                                        14

      CIVIL. APPELLATE JURISDICTION : Civil Appeal No.
G 5899 of 2012 etc.

        From the Judgment & Order dated 13.09.2011 of the High
    Court of Uttarakhand at Nainital in Writ Petition No. 280 of 2009
    (S/B)
H
 CHANDI PRASAD UNIYAL AND ORS. v. STATE OF 311
              UTTARAKHAND
                                WITH                                A
I.A. Nos. 2 & 3.

     Shivam Sharma, Ravi Kumar Tomar for the Appellants.

     Rachana Srivastava for the Respodents.
                                                                    B
    The Judgment of the Court was delivered by

     K.5. RADHAKRISHNAN, J. 1. Leave granted.

     2. The question that arises for consideration in this appeal C
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 D
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 E
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 F
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]. G

     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
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    312       SUPREME COURT REPORTS                     [2012] 7 S.C.R.


A   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 Co/. B.J. Akkara (retd.) v.
    Government of India and Ors. [(2006) 11 SCC 709] submitted
B   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.
c   Reliance was also placed on another judgment of this Court in
    Syed Abdul Qadir and Ors. v. State of Bihar and Ors. [(2009)
    3 sec 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.
D         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
E   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:
F
          ''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
G
          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
H
 CHANDI PRASAD UNIYAL AND ORS. v. STATE OF                   313
   UTTARAKHAND [K.S. RADHAKRISHNAN, J.]
    through enclosures. If pay fixation has been done by you         A
    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        B
    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 I Principal of the        C
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 D
    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 E
    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 ;                   F

    2. Sh. Markandey Prasad Semwal, Teacher, Sh. Udashin
    Sanskrit Mahavidhyalaya, Hardwar ;

    3. Sh. Chandi Prasad Uniyal, Principal, Sh. Nirmal Sanskrit G
    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.
                                                                     H
    314       SUPREME COURT REPORTS                 [2012] 7 S.C.R.


A         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
B   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
c   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
D   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.

E        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
F         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
G   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.

H         9, We are of the considered view, after going through
 CHAND! PRASAD UNIYAL AND ORS. v. STATE OF 315
   UTTARAKHAND [K.S. RADHAKRISHNAN, J.]
various judgments cited at the bar, that this court has not laid    A
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.
                                                                  B
     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 C
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.
                                                                  D
      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 E
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 F
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-       G
Judge Bench of this Court in Co/. 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:
                                                                    H
    316        SUPREME COURT REPORTS                   [2012} 7 S.C.R.


A          "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,
B         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
c         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
D         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
E (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
F         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
G         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
H
          because of inaction, negligence and carelessness of the
 CHAND! PRASAD UNIYAL AND ORS. v. STATE OF                     317
   UTTARAKHAND [K.S. RADHAKRISHNAN, J.]
     officials concerned of the Government of Bihar. Learned A
     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 B
     of the view that no recovery of the amount that has been
     paid in excess to the appellants-teachers should be
     made.

                                              (emphasis added)"        C

      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.                                           D

     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           E
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.                                              F

     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    G
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,               H
    318      SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A   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
B   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
c   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 Co/. B.J. Akkara (retd.) case (supra), the excess
    payment made due to wrong/irregular pay fixation can always
D   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
E   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
F   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.

    B.B.B.                                      Appeal dismissed.