BARIN GHOSH and JAYANANDAN SINGH JJ.

1. A full Bench of this Court has very recently pronounced that there is no impediment in recovering excess payment made to a Government employee by mistake. However, the Full Bench has decided if payment has been made on the basis of an understanding but subsequently by application of mind, it transpires that the basis was a wrong basis, then payment made on the wrong basis cannot be said to be payment made by mistake and accordingly, cannot be recovered.

2. In the writ petition, the original writ petitioner challenged an order dated 28.07.1998, whereby and under it was contended that during the period between 5th February, 1983 and 31.12.1997, the original petitioner was paid an excess amount of Rs. 1,49,805.80 and accordingly, the said sum of money is recoverable from him. It was stated that although the original petitioner did not pass the noting and drafting examination, he was accorded increments during the period mentioned above and as such excess payment had been made.

3. In the Boards Miscellaneous Rules, there is a direction for passing Hindi noting and drafting examination to earn eligibility for obtaining increments. The said Rules are applicable to the employees of the State, who work in their capacity as Clerks to the State. The original petitioner was the Head Master of Laxmi High School, Sitamarhi, a Government School and was not a Clerk thereof. In such circumstances, it is doubtful whether it was at all obligatory on the part of the original petitioner to pass Hindi noting and drafting examination for the purposes of obtaining increments. In such view of the matter, the decision taken on 28.07.1995 impugned in the writ petition should be deemed to be a decision to hold that the earlier decision to grant increments to the original petitioner was an erroneous decision. In view of the pronouncement of the Full Bench referred to above, the payment, thus, made even if on an erroneous decision, it cannot be said that the payment was made by mistake and accordingly, is not recoverable.

4. In the circumstances, there is no scope of interference, the appeal fails and the same is dismissed.