Recovery of excess payment is impermissible under law if it was not paid on account of misrepresentation or fraud, and if the excess payment was made by the employer with the knowledge that it was admissible to the employee.

JUDGMENT :

B.R. SARANGI, J.

The petitioner, who retired as a Headmistress, has filed this writ petition seeking to quash the order dated 10.01.2012 passed by opposite party no.3 under Annexure-6, and consequential order dated 12.03.2014 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 910 (C) of 2012 under Annexure-7, and to issue direction to the authority not to recover the so called excess payment made to her.

2. The factual matrix of the case, in brief, is that the petitioner had joined in a Matric C.T. post in L.S.E.S. cadre on 16.08.1978 and was appointed in a trained graduate post w.e.f. 1981. Thereafter, she was promoted to the Jr. S.E.S. cadre (Women Branch) on regular basis, vide order dated 17.08.1989, by the C.I. of Schools, Puri. On promotion to Jr. S.E.S. cadre, she was posted at Dandamukundapur High School, Puri against the vacancy of the year 1981, but she actually joined on 17.08.1989. The name of the petitioner was shown at sl.no.937 of the provisional gradation list for Jr. S.E.S. teacher published on 17.05.1999 by the opposite party no.2. In the said gradation list, the date of joining in Jr. S.E.S. cadre was shown to be 01.12.1981.

2.1. The Finance Department in its resolution dated 17.04.1998 and 03.06.1998 prescribed the rules for fixation of pay in time bound advancement scale in favour of government employee allowing 1st time bound advancement scale on completion of 15 years of service under O.R.S.P. Rules, 1989. Pursuant to such resolution, the petitioner filed the statement in the prescribed forms for allowing her time bound advancement scale of pay (Rs.5500-175-9000) with effect from 01.12.1996, i.e., on completion of 15 years of service from 01.12.1981, the date on which she joined in Jr. S.E.S. cadre. But the same was returned to the petitioner with an endorsement “she was appointed in Jr. S.E.S. cadre w.e.f. 22.08.1989 against the post, which was lying vacant since the year 1981. Her seniority was stipulated to be counted from 1981 of the promotion to next higher rank with financial benefit from the date of actual joining with T.G. post. So her 15 years service will be counted from 22.08.89.”

2.2. Aggrieved by the aforesaid order of the opposite parties, the petitioner preferred original application before the tribunal bearing O.A. No. 533 of 2000, which was disposed of with a direction that the petitioner is entitled to TBA scale of pay since 01.12.1981, i.e., since her date of joining in Jr. S.E.S. cadre, but disallowed the petitioner to get any relief regarding payment of consequential arrear and alleged incorrect fixation of her pay.

2.3. Challenging the aforesaid order of the tribunal, the petitioner preferred W.P.(C) No. 3098 of 2011, which was disposed of by this Court with a direction to opposite party no.2 to consider the prayer of the petitioner and take a decision thereon, as early as possible, preferably within a period of three months. Pursuant to the order of this Court, opposite party no.2, instead of considering the prayer of the petitioner in the light of observation made by this Court, rejected the prayer of the petitioner regarding allowing TBA scale of pay since 01.12.1981, i.e., the date of promotion to Jr. S.E.S. cadre and further directed that necessary steps may be taken to recover the salary amount from the petitioner which is alleged to be wrongly calculated and paid to the petitioner from 01.12.1996 to 31.12.2005. In pursuance of the order of opposite party no.2, opposite party no.3 passed order on 10.01.2012, with a direction to recover the aforesaid amount from the petitioner. It is contended that the order dated 10.01.2012 disallowing the TBA scale of pay to the petitioner since 01.12.1996 and consequential direction for recovery of salary amount, which was rightly disbursed to the petitioner from 01.12.1996 to 31.12.2005, is arbitrary and contrary to the established principle of law. Aggrieved by the aforesaid order of the authority, the pe