Recovery of excess salary paid due to an administrative error is impermissible when there is no misrepresentation by the employee, particularly when such recovery causes extreme hardship to the employee.

(Order of the Court was made by S.M.Subramaniam J.)

The Writ Petition has been filed calling for the records of the 6^th respondent in impugned proceedings in ROC No.1909/2022 dated 16.06.2022, quash the same, consequently direct the respondents to pay at the existing fixation of pay and not to recovery the excess amount paid.

2. The petitioner was initially appointed as Copyist on 10.12.1997.

Subsequently, she was promoted as Assistant with effect from 15.03.2016. The petitioner was informed through impugned order dated 16.06.2022 in Roc.No.1909/2022 that pursuant to the internal audit wing of this Court, the scale of pay was found to be excessive. Based on the audit objection, the pay was revised accordingly, and excess salary paid to the petitioner was sought to be recovered from the writ petitioner’s salary.

3. Unjust gain of public money is impermissible under law. In such circumstances, the Authorities Competent are empowered to rectify the errors in fixation of pay and grant the correct pay as applicable. Thus, the revised pay fixation granted by the respondents in accordance with the Pay Rules and Government Orders shall continue.

4. However, the respondents are unable to establish that there was a misrepresentation on the part of the employee during fixation of pay. It is an error committed by the Establishment for which the petitioner cannot be penalised after a lapse of many years. Recovery of excess salary at this length of time would result in extreme hardship to the employee.

5. In this regard, the Hon'ble Supreme Court of India also enumerated the legal principles in the case of State of Punjab v. Rafiq Masih, 12015 4 SCC 334 and held as hereunder:

“18.It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarize the following few situations,

wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii)Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.

6. In view of the facts and circumstances, the revision of pay effected pursuant to the Audit Objection is confirmed, but the recovery of excess pay alone is set aside. The excess amount recovered on account of the impugned order is directed to be re-paid to the petitioner within a period of 12 weeks from the date of receipt of a copy of this order. Accordingly, the impugned order is set aside, with reference to the recovery of excess salary alone. 7. Accordingly, the Writ Petition stands partly allowed. Consequently, the connected Miscellaneous Petition is closed. No costs.