IMPORTANT POINT
There is no 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.

JUDGMENT

K. S. Radhakrishnan, J.

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 co