M. Karpaga Vinayagam, C.J.

1. The question requires to be determined in this case by the Full Court is whether the amount, if any, paid in excess to the employee while in service due to mistake, fault or any misrepresentation, can be recovered from the employee after retirement from the Pension or Gratuity of the Government employee.

2. The brief facts of the case could be summarized as follows:

(i) Laxman Prasad Gupta, the petitioner, herein, was appointed as Health Worker on 11.04.1968.

(ii) The first Time Bound Promotion was given to the petitioner in the year 1981. Subsequently he got Second Time Bound Promotion in the year 1993.

(iii) The petitions retired from the service on 30.09.2001. At the time of retirement, his last pay drawn was Rs. 5702/- per month.

(iv) After retirement, pension papers of the petitioner was sent to the Accountant General for the finalization of the pension and other retrial benefits.

(v) The Accountant General returned the pension papers to the authority with an observation that Second Time Bound Promotion was wrongly given to the petitioner as the same should have been given only after 10/25 years since First Time Bound Promotion was given to the petitioner in the year 1981.

(vi) Raising the said objection, the Accountant General recommended for the refixation of the pay scale of the petitioner and for the recovery of excess payment made to the petitioner.

(vii) The State, thereupon simply, accepted the said recommendation and adjusted the excess payment made to the petitioner from his retrial benefits and refixed the pay of the petitioner on tower side than the actually received by the petitioner at the time of retirement.

(viii) Challenging the same, this writ petition has been filed.

3. According to the petitioner, there was no illegality in the Second Time Bound Promotion given to the petitioner; The petitioner, having been appointed in the year 1968, was given First Time Bound Promotion only after 10 years, i.e., in the year 1981 and the Second Time Bound Promotion was given to the petitioner only after 25 years, i.e., in the year 1993; As such the adjustment of the alleged excess amount on the mere objection of Accountant General without giving opportunity to the petitioner to defend his case is illegal.

4. The learned Counsel for the petitioner cited the following decisions:

(i) Sahib Ram v. State of Haryana (1995) Suppl. 1 SCC 18

(ii) Nakul Raut v. State of Jharkhand 2002 (1) JLJR 597

(iii) Md. Usman v. State of Jharkhand

(iv) Ram Prasann Singh v. State of Jharkhand

(v) Bihar State Electricity Board v. Bijay Bhadur

(vi) State of Jharkhand v. Baleshwar Singh 2006 (4) JLJR 259

(vii) Nandipati Das v. Bihar State Electricity Board 2006 (4) JLJR 264

(viii) Nand Kishore Pandey v. Jharkhand State Electricity Board 2006 (4) JLJR 558

4. On behalf of the State, it is argued that the adjustment of the excess payment or recovery is perfectly justified on the strength of Girish Kumaris Case and Ram Chandra Singhs Case ].

5. We have heard the submissions made by both the counsel and given our anxious consideration.

6. Now, let us refer to the decisions cited by the counsel for the petitioner.

(i) In Sahib Ram v. State of Haryana (1995) Suppl. 1 SCC 18, the Supreme Court observed as follows:

...However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant.... [para 5]

(ii) In Nakul Raut v. State of Jharkhand 2002 (1) JLJR 597 the Single Judge, while dealing with the said question, has given the following answer:

...After retirement and more than three years from the date of promotion, now it is not open to respondents to raise the question of legality and propriety of promotion as was granted in favour of petitioner while he was in service....[para 6]

...the r