IMPORTANT POINTS
The officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.

JUDGMENT :

Gopinath, J.

This Original Petition (KAT) is filed by the State of Kerala and its officers challenging Ext.P3 order of the Kerala Administrative Tribunal in O.A.No.(EKM) No.256/2016.

2. The brief facts are that the 1st respondent herein was working as a Lower Primary School Assistant (LPSA) in an aided school during the period from 24.8.1990 to 30.1.2001. From 31.1.2001, he was appointed as LPSA, in a Government school, following the advice of the Kerala Public Service Commission. Taking into account his service as an aided school teacher, he was granted the first higher grade w.e.f 31.1.2001 i.e. after he joined Government service and before the declaration of his probation in Government service. Similarly, he was granted the second higher grade (18 years) with effect from 1.1.2007 and the third higher grade with effect from 1.1.2003.

3. While matters stood thus, the 1st respondent was served with a copy of an audit report dated 1.4.2014 wherein, in respect of him, it was noted that the grant of the first higher grade with effect from 31.1.2001, prior to the declaration of probation in Government service was not in order. Consequently, the dates on which the second higher grade and the third higher grade were granted, were also wrong. Though the 1st respondent submitted a detailed objection, the same was overruled. Faced with recovery proceedings, the 1st respondent approached the Tribunal by filing the aforesaid O.A.(EKM)No.256/2016. On a consideration of the matter and following the law laid down in State of Punjab and other v. Rafiq Masih (White Washer); (2015) 4 SCC 334 and noticing that the decisions in Registrar of Co-operative Societies v. Israil Khan; 2009(4) KLT SN 51 [for the full text of the judgment please see (2010) 1 SCC 440] and Syed Abdul Qadir and others v. State of Bihar and others; (2009) 3 SCC 475 were applied and followed in the judgment of this Court in W.P.(c) 17325 of 2010 dated 4.8.2011, the Tribunal came to the conclusion that there can be no recovery of excess salary paid on account of the wrong fixation. While reaching this conclusion the Tribunal also followed the Division Bench judgment of this Court in Kasaragod District Co-operative Bank Ltd. and another v. Radha.K.A and another; 2016(1)KHC 260(DB)

4. It is to be noted that the question as to whether the 1st respondent was entitled to fixation from a date earlier than the date of declaration of probation was not considered by the Tribunal. That issue has not been argued before this Court also. We are therefore called upon to examine only one question viz. whether recovery could have been ordered or proceeded with against the 1st respondent before the Tribunal. The Tribunal has answered that question against the State and its officers. We are now called upon to pronounce upon the validity of the decision taken by the Tribunal.

5. The learned Government Pleader submits that the judgment of the Supreme Court in Rafiq Masih is no longer good law, in the light of the later judgment of the Supreme Court in High Court of Punjab and Haryana and others v. Jagdev Singh; (2016) 14 SCC 267. He would state that the principle in Rafiq Masih cannot be applied in situations where undertakings had been given by the employee concerned, undertaking, to refund any excess payment received. He would refer to Exts.P4, P5 and P6 which are options submitted by the 1st respondent for the grant of higher grade and points out the fact that in each of these options, the 1st respondent had undertaken to refund any excess payment if it was found later that he was not entitled to any payment or part of it. He would, therefore, state that the present case is one that is squarely covered in his favour in terms of the ratio of the judgment of the Supreme Court in Jagdev Singh, and draws our attention, in particular, to paragraphs 10 and 11 of that judgment.

6. Sri.Subash Chand, learned counsel appearing for the 1st respondent would vehemently contend that the judgment of the