Recovery of excess salary due to irregular/wrong pay fixation can be made even without misrepresentation or fraud, except in exceptional cases of extreme hardships, and the obligation on the payee to repay the money received without the authority of law, as it would amount to unjust enrichment.

These five writ petitioners are working as First Grade Warders or upgraded First Grade Warders and are at present posted to work at Arur Sub Jail and in one case Sub Jail, Uthangarai. By the impugned order dated 23.07.2012, the second respondent informed them that pay fixation given to them with effect from 01.01.2009 on par with one P.Manickam, who was working as upgraded Warder Grade-I in District Jail, Athur has been correctly fixed earlier. But, however, the subsequent fixations granted have been objected to by the Audit report for the year 2009-2010. The first respondent informed them that the pay fixation wrongly fixed has to be set at right and that the excess amount should be recovered in equal installments from the salary payable from July, 2012.

2. Contending that the said recovery was illegal, it was stated that no opportunity was given to them and even if any excess amount paid by way of misrepresentation, that amount cannot be recovered in the light of the an unreported judgment of this court in W.A.No.1302 of 2006, dated 19.03.2009. In paragraph 5 of the affidavit, the operative portion of the division bench order is set out, which reads as follows :

"As far as the recovery of excess salary, or excess payment made to an employee, the law is well settled. If the excess payment is made on the misrepresentation of the employee concerned, the State Government would certainly be entitled to direct for recovery of such excess payment. On the other hand, if the excess payment is made by the State even though by mistake, such excess payment cannot be recovered. To support the above, we may refer to the following judgments in (1) Col.B.J.Akkara (Retd) Vs. Government of India and others reported in (2006) 11 Supreme Court Cases 709, (2) Shyam Babu Verma Vs. Union of India reported in (1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121, (3) Union of India Vs. M.Bhaskar reported in (1996) 4 SCC 416 : 1996 SCC (L&S) 967 and (4) V.Gangaram Vs. Regional Joint Director reported in (1997) 6 SCC 139 : 1997 SCC (L&S) 1652 apart from referring to the judgment of the Apex Court referred by the learned Single Judge."

3. Except placing reliance upon the aforesaid passage quoted from the division bench order, the petitioners have not made out any case for interfering with the impugned order. In this context, it is necessary to refer to the latest judgment of the Supreme Court in ChandiPrasad Uniyal and others Vs. State of Uttarakhand and others reported in (2012) 8 SCC 417, wherein all these contentions have been considered and in paragraphs 7 to 16, it was observed as follows :

"7. We may also indicate that when the revised pay scale/pay fixation was fixed on the basis of the 5th Central Pay Scale, a condition was superimposed which reads as follows:

“In the condition of irregular/wrong pay fixation, the institution shall be responsible for recovery of the amount received in excess from the salary/pension.”

The appellants are further bound by that condition as well. The facts, mentioned hereinabove, would clearly demonstrate that the excess salary was paid due to irregular/wrong pay fixation by the District Education Officer concerned. The question is whether the appellants can retain the amount received on the basis of irregular/wrong pay fixation in the absence of any misrepresentation or fraud on their part, as contended.

8. We are of the considered view, after going through the various judgments cited at the Bar, that this Court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered.

9. ShyamBabu Verma case1was a three-Judge Bench judgment, in that case the higher pay scale was erroneously paid in the year 1973, the same was sought to be recovered in the year 1984 after a period of eleven years. The Court felt that the sudden deduction of the pay