JUDGMENT :

1. The instant writ petitions are filed at the behest of the Union of India assailing a common order dated 15th November, 2021 passed by the Central Administrative Tribunal disposing of several tribunal applications filed by the respective applicants therein by which the direction was passed upon the writ petitioners to refund recovered amount within a period of two months from the date of the receipt of the said order.

2. The respondents being the applicants before the Tribunal were employed in different cadres in several zonal railways through the Railway Recruitment Board. Subsequently they were promoted and absorbed as motorman in the Metro Railway. By acceptance of the recommendation of 6th Pay Commission, they were entitled to Grade Pay of Rs.4,200/- in Pay Band 2 because of the stagnancy in the promotional avenues in the Metro Railway. Subsequently the Board adopted the Modified Assured Career Policy (MACP) scheme in the year 2009 and the applicants, respondents herein, were given the financial upgradation under the said scheme and received such benefits until the circular dated 28th April, 2017 was issued.

3. By the said circular, the recruited motorman in the Metro Railway were entitled to upgradation in Grade Pay of Rs.4,600/-, 4,800/- and 5,400/- in Pay Band 2 on completion of 10, 20 and 30 years of service respectively and the Grade Pay of Rs.4,600/-, which was allowed in the year 2011, was withdrawn. By virtue of the said circular, the writ petitioners attempted to recovery the excess amount paid by mistake and in fact, recovered partial amount from the salary or the retiral benefits.

4. The challenge was made to the recovery of excess amount unilaterally when the respondents herein have neither practised fraud upon the employer i.e. the petitioners herein nor such benefit was extended by making incorrect representation.

5. The Tribunal disposed of the application relying on a judgment of the Supreme Court in case of State of Punjab and Others vs. Rafiq Masih (White Washer) and Others, (2015) 4 SCC 334 directing the refund of the amount already deducted and/or recovered within a specified time.

6. The learned Advocate appearing for the writ petitioners submits that the Apex Court in Rafiq Masih (supra) have laid down the conditions, circumstances and situations, when the recovery of excess amount is impermissible by law and Clause (iii) in paragraph 18 thereof indicates that any excess payment made for a period in excess of five years before the order of recovery is issued is impermissible. It is further submitted that the mistake was detected within three years from the date of extending such benefits and in view of exposition of law by the Supreme Court in Rafiq Masih (supra), there is no impediment on the part of the writ petitioners to recover the excess amount paid to the respective respondents.

7. On the other hand, the learned Advocate appearing for the respondents in the aforesaid writ petitions submits that the benefit was extended by the writ petitioners voluntarily in the year 2009 and the recovery was sought for the first time in the year 2017 when the circular was issued on 28th April, 2017. It is thus submitted that the aforesaid contentions of the writ petitioners is untenable and the case falls within the peripheral of the judgment of the Supreme Court rendered in case of Rafiq Masih (supra).

8. On the conspectus of the aforesaid submissions made before us and the facts pleaded in the writ petitions as well as the tribunal application, it is no doubt true that the recovery of an excess amount if paid to the employee by mistake cannot be recovered in absence of any fraud or misrepresentation committed by the employee. The Apex Court in case of Rafiq Masih (supra) considered various judgments of the Apex Court rendered in this regard where the recovery of excess amount at the behest of the employer is impermissible and the Apex Court held that the decision to recover the excess amount amounts to h