K.S. Radhakrishnan, J.

This matter has been placed before us on a reference by a learned single judge of this court in view of the conflicting views expressed by a learned single judge of this court in Rose v. State of Kerala (2004 (1) KLT 934) and by another learned single judge in Sivankutty Nair v. Secretary to Government (2005 (3) KLT 512).

2. The question posed is whether Government is entitled to recover the amount paid to an employee on account of wrong fixation of pay in a case where employee has not contributed to the whole mistake. Learned judge in Rose’s case, supra (2004 (1) KLT 934) rejected the plea that the Government is disabled from demanding the over payments. Learned judge held that if an officer is denied any benefits he has a right to insist for payment. Likewise, he owes a duty to pay back the excess received by him. The plea that amounts paid are appropriated and one may find it difficult to pay it back can only be a self serving argument and not equitable. We notice that though the decision in Rose’s case has been placed before the learned judge who decided Sivankutty Nair’s case, supra (2005 (3) KLT 512), the learned judge found no reason to follow the principle laid down therein and took the view that excess amount paid on account of wrong fixation of pay cannot be recovered unless the employee has in any way contributed to the mistake. Learned judge also distinguished the bench decision of this court in United India Insurance Co. Ltd. v. Roy (2005 (2) KLT 63). That was a case where amount was sought to be recovered since the payment was made by mistake contrary to the direction given by the General Insurance Company of India which is binding on all the insurance companies. Learned judge also placed reliance on the decision of the apex court in Union of India vs. Indian Railways SAS Staff Association and others (1995 Suppl. (3) S.C.C. 600).

3. Original petition was filed challenging the order of the Government dated 25.6.1997 whereby the Government rejected the petition challenging recovery of excess amount paid to the petitioner from the pensionary benefits. Petitioner was working as High School Assistant in S.V.V.H.S., Miyapadavu from 19.9.1967 and she attained the age of superannuation on 30.9.1993. As per the provisions contained in the Kerala Service Rules, being a teaching staff petitioner was entitled to continue in service till the end of the academic year. Petitioner was not entitled to any leave except casual leave as per ruling No.2 of Rule 60 of Part I, K.S.R. Petitioner had applied for commuted leave for 9 days for the period from 9.12.1993 to 17.12.1993, vide application dated 3.12.1993. As per the provisions contained in the Kerala Service Rules, from the date of commencement of leave service of the petitioner would stand terminated. Accordingly Ext.P1 order was issued treating the petitioner retired from service with effect from 9.12.1993, date of availing of the leave. Later, pay of the petitioner was refixed as Rs.2,070/- with effect from 15.7.1993 and Rs.2,240/- with effect from 15.7.1994 and liability certificate showing the liability of Rs.16,297/- was issued being the irregular payment of pay and allowances from 09.12.1993 to 31.3.1994. Petitioner was liable to repay the excess amount drawn during the period 9.12.1993 to 31.3.1994.

4. Ruling No.2 of Rule 60 of Part I K.S.R. is a statutory provision binding not only on the departmental official who has paid the amount but also on the recipient of the amount. The said provision is extracted below for easy reference.

“The teaching staff of educational institutions who are allowed to continue in service beyond the date of superannuation till the end of the academic year will not be eligible for any leave other than casual leave during the period of their service beyond the date of superannuatoin and if they apply for any leave other than casual leave during the period they shall be retired from service from the date of such ap