Recovery of excess salary depends on factors such as fault, fraud, and hardship, and each case should be decided based on its own facts.

( 1 ) THIS writ petition has been filed challenging the Judgment and order dated May 23, 2003 passed by the Central Administrative tribunal, partly allowing the application of the respondents No. 1 to 5 issuing direction not to recover the amount already paid to them.

( 2 ) FACTS and circumstances giving rise to this case are that the said respondents were engaged as casual employees on different dates between 1979 to 1985. They were conferred temporary status in Group "d" category with effect from November 29, 1989. They were treated at par with temporary Group "d" employees after completing three years of service vide order dated November 22, 1995. After considering the recommendations of the fifth Pay Commission, they had been fixed in the pay scale of Rs. 750-940/-, i. e. revised pay scale of Rs. 2660/ -. Subsequently, vide Office memorandum dated October 24, 1997, the instructions were issued to fix their salary at rs. 2550/ -. The said order was not given effect to immediately and the said respondents continued to receive the pay as fixed earlier and hence the order was passed to make the recovery. Being aggrieved and dissatisfied, the said respondents approached the learned tribunal. By impugned judgment and order dated May 23, 2003, the Tribunal dismissed their applications to the extent that they were not entitled for the pay scale of Rs. 2,660/-and they could get the salary in the pay scale of Rs. 2,550-3200/ -. But considering the facts and circumstances of the case, it was directed that the present petitioner shall not recover the amount which had already been paid to them and if already recovered, it should be refunded to them. Hence, this petition.

( 3 ) THE only controversy involved in this case is as to whether the learned Tribunal could have passed the order not to make the recovery of the excess amount which had been paid to the said respondents for which they were not entitled in law.

( 4 ) IN Sahib Ram v. State of Haryana 1995 (Suppl) 1 SCC 18, the Honble Apex Court considered similar issue and observed as under:"the principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. 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. "

( 5 ) IN Shyam Babu Verma v. Union of india, 1994 (2) SCC 521: 1994-I-LLJ-815, the honble Apex Court examined the identical issue and held that if the employee has received the extra money due to no fault of his and that scale is reduced subsequently with effect from back date, it shall be just and proper not to recover any excess amount which has already been paid to him.

( 6 ) HOWEVER, in Union of India v. Ram gopal Agarwal AIR 1998 SC 783 : 1998 (2)scc 589 : 1998-I-LLJ-1233, the Apex Court has held that if the amount had been paid by mistake, and there has been no fraud or misrepresentation on the part of the employee, the recovery at a belated stage would result in great hardship. Therefore, in such circumstances, the amount already paid to him, even under the interim order of the Court, be not recovered.

( 7 ) IN State of Haryana v. O. P. Sharma, air 1993 SC 1903 : 1993 Supp (2) SCC 386 : 1993-II-LLJ-457, the Honble Apex Court held to avoid hardship, the excess amount paid should be recovered in instalments, i. e. in phased manner.

( 8 ) IN State of Haryana v. Kamal Singh saharwat, AIR 1999 SC 3775 : 1999 (8) SCC 44, while dealing with the same case, the honble Apex Court held that it was entitled to recover back from the employees whatever had been paid extra to them, if the employer decides to recover the excess amount even after a long lapse of time.

( 9 ) SIMILARLY, in Union of India v. Smt. Sujata Vedachalam