Gauhati High Court
Page No.# 1/19 vs Tillottama Brahma And Anr on 24 April, 2025
Page No.# 1/19
GAHC010274012024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/132/2025
THE UNION OF INDIA AND 2 ORS.
REP BY THE SECRETARY TO THE GOVT OF INDIA, MINISTRY OF HEALTH
AND FAMILY WELFARE, NEW DELHI
2: THE DIRECTOR
LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL
HEALTH
TEZPUR
SONITPUR
ASSAM
784001
3: THE ADMINISTRITATIVE OFFICER
LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL
HEALTH
TEZPUR
SONITPUR
ASSAM
78400
VERSUS
TILLOTTAMA BRAHMA AND ANR.
W/O KULDIP BASUMATARY, D/O- SACHINDRA NATH BRAHMA, C/O-
LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL
HEALTH, TEZPUR, SONITPUR, ASSAM
2:THE COMPTROLLER AND AUDITOR GENERAL OF INDIA
CAG
DEEN DAYAL UPADHAYA MARG
NEW DELHI 11012
Advocate for the Petitioner : MR AJIT KUMAR DUTTA,
Page No.# 2/19
Advocate for the Respondent : , FOR CAVEATOR
Linked Case : WA/52/2025
THE UNION OF INDIA AND 2 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA
MINISTRY OF HEALTH AND FAMILY WELFARE
NEW DELHI
2: THE DIRECTOR
LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL
HEALTH
TEZPUR
DIST. SONITPUR
ASSAM
PIN-784001.
3: THE ADMINISTRATIVE OFFICER
LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL
HEALTH
TEZPUR
REP. BY ITS OSD
DEPUTY DIRECTOR I/C
TEZPUR
DIST. SONITPUR
ASSAM
PIN-784001.
VERSUS
MANJUMA HAZARIKA AND ANR.
W/O. SRI PRASANNA SARANIA
C/O. LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF
MENTAL HEALTH
TEZPUR
DIST. SONITPUR
ASSAM
PIN-784001.
2:THE COMPTROLLER AND AUDITOR GENERAL (CAG) OF INDIA
DEEN DAYAL UPADHAYA MARG
NEW DELHI-110124.
------------
Advocate for : MR. A K DUTTA Advocate for : FOR CAVEATOR appearing for MANJUMA HAZARIKA AND ANR. Page No.# 3/19 Linked Case : WA/50/2025 THE UNION OF INDIA REP BY THE SECRETARY TO THE GOVT OF INDIA MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI 2: THE DIRECTOR LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR SONITPUR ASSAM 3: THE ADMINISTRATIVE OFFICER LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR SONITPUR ASSAM VERSUS DHARMEN NAIDU S/O. LT. DHARAMDAS NAIDU PERMANENT R/O. FULBARI TEA ESTATE P/O. BALIPARA DIST. SONITPUR ASSAM PIN-784101 PRESENTLY RESIDING AT LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR SONITPUR ASSAM 2:THE COMPTROLLER GENERAL (CAG) OF INDIA AND AUDIT DEEN DAYAL UPADHAYA MARG NEW DELHI-110124.
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Advocate for : MR. A K DUTTA Advocate for : MR. S C BISWAS appearing for DHARMEN NAIDU Linked Case : WA/129/2025 Page No.# 4/19 THE UNION OF INDIA AND 2 ORS.
REP BY THE SECRETARY TO THE GOVT OF INDIA MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI 2: THE DIRECTOR LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR SONITPUR ASSAM 784001 3: THE ADMINISTRITATIVE OFFICER LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR SONITPUR ASSAM 784001 VERSUS KALPANA HAZARIKA AND ANR.
W/O SRI ACHYUT BORAH R/O- VILLAGE SANTIBAN DEWRIGOAN P.O- KETEKIBARI DIST- SONITPUR ASSAM PIN-784001.
2:THE COMPTROLLER AND AUDITOR GENERAL OF INDIA CAG DEEN DAYAL UPADHAYA MARG NEW DELHI 110124
------------
Advocate for : MR AJIT KUMAR DUTTA Advocate for : appearing for KALPANA HAZARIKA AND ANR.
Linked Case : WA/107/2025 THE UNION OF INDIA AND ORS.
REP BY THE SECRETARY TO THE GOVT OF INDIA MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI Page No.# 5/19 2: THE DIRECTOR LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR SONITPUR ASSAM 784001 3: THE ADMINISTRITATIVE OFFICER LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR SONITPUR ASSAM 784001 VERSUS ESTHER GEORGE AND ANR.
C/O LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR SONITPUR ASSAM-784001.
2:THE COMPTROLLER AND AUDITOR GENERAL OF INDIA CAG DEEN DAYAL UPADHAYA MARG NEW DELHI 110124
------------
Advocate for : MR AJIT KUMAR DUTTA Advocate for : appearing for ESTHER GEORGE AND ANR.
Linked Case : WA/79/2025 THE UNION OF INDIA AND 2 ORS.
REP BY THE SECRETARY TO THE GOVT OF INDIA MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI 2: THE DIRECTOR LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR SONITPUR ASSAM Page No.# 6/19 784001 3: THE ADMINISTRITATIVE OFFICER LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR SONITPUR ASSAM 784001 VERSUS JOYSHREE DUTTA AND ANR.
W/O SRI BIJIT KUMAR GOGOI LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR SONITPUR ASSAM-784001.
2:THE COMPTROLLER AND AUDITOR GENERAL OF INDIA CAG DEEN DAYAL UPADHAYA MARG NEW DELHI 110124
------------
Advocate for : MR AJIT KUMAR DUTTA Advocate for : MR. S C BISWAS appearing for JOYSHREE DUTTA AND ANR.
Linked Case : WA/51/2025 THE UNION OF INDIA REP. BY THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI 2: THE DIRECTOR LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR SONITPUR ASSAM PIN-784001.
3: THE CHIEF ADMINISTRATIVE OFFICER LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR Page No.# 7/19 DIST.- SONITPUR ASSAM PIN-784001.
VERSUS LAXMI DEVI W./O. LT. BUL BARTHAKUR R/O. VILL.- GHARPARA CHUBURI LALIT BARUAH PATH P/O. TEZPUR DIST.- SONITPUR ASSAM PIN-784001.
2:THE COMPTROLLER AND AUDITOR GENERAL (CAG) OF INDIA DEEN DAYAL UPADHAYA MARG NEW DELHI PIN-110124.
------------
Advocate for : MR. A K DUTTA Advocate for : MR. S C BISWAS appearing for LAXMI DEVI Linked Case : WA/130/2025 THE UNION OF INDIA AND 2 ORS.
REP BY THE SECRETARY TO THE GOVT OF INDIA MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI 2: THE DIRECTOR LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR DIST. SONITPUR ASSAM PIN-784001 3: THE ADMINISTRATIVE OFFICER LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR DIST. SONITPUR ASSAM PIN-784001.
VERSUS Page No.# 8/19 PURNIMA NARZARY AND ANR.
W/O LATE GOKUL DEORI LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR SONITPUR ASSAM-784001.
2:THE COMPTROLLER AND AUDITOR GENERALOF INDIA CAG DEEN DAYAL UPADHAYA MARG NEW DELHI-110124.
------------
Advocate for : MR AJIT KUMAR DUTTA Advocate for : appearing for PURNIMA NARZARY AND ANR.
BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR Date of Hearing : 09.04.2025 Date of Judgment : 24.04.2025 JUDGMENT & ORDER (CAV) (N. Unni Krishnan Nair. J) Heard Mr. A. K. Dutta, learned counsel appearing for the appellants in the above noted writ appeals. Also heard Mr. B. D. Das, learned Senior Counsel along with Mr. S. K. Biswas, learned counsel appearing for the respondent no. 1 in all the writ appeals and Mr. R. K. Talukdar, learned counsel appearing for the respondent no. 2 in all the writ appeals.
2. The above noted writ appeals were, with the consent of the parties, taken up for final consideration and are being disposed of by this common judgment and order, in view of the fact that all the appeals have been filed, assailing the common order dated 13.09.2022, passed by the learned Single Judge in the connected writ petitions.
3. The respondent no. 1 in the above noted writ appeals, who were working as Page No.# 9/19 Nursing personnel in the Lokopriya Gopinath Bordoloi Regional Institute of Mental Health, Tezpur, (hereinafter referred to as 'the Institute' for the sake of brevity), had instituted WP(C) No. 5271/2021, WP(C) No. 258/2022, WP(C) No. 5433/2021, WP(C) No. 5541/2021, WP(C) No. 5225/2021, WP(C) No. 5269/2021, WP(C) No. 5239/2021 and WP(C) No. 5577/2021 , raising a grievance against the direction passed by Office Order dated 25.06.2021, towards effecting recovery from their salaries at the rate of Rs. 20,000/-(Twenty Thousand) per month (except the Respondent no. 1 in WA No. 51/2025) in view of the wrong fixation of pay made in their respective cases by the authorities of the Institute, while fixing their pay in pursuance to the recommendations of the 6 th Central Pay Commission (CPC) w.e.f., 01.01.2006. In respect of the respondent no. 1 in Writ Appeal No. 51/2025, who had instituted WP(C) No. 258/2022, the recovery in her case was directed to be effected at the rate of Rs. 10,000/- (Ten Thousand) per month, inasmuch as, she had retired from her services on 30.01.2018.
4. The above noted writ petitions filed by the respondent nos. 1 in the writ appeals involved, were taken up for consideration by the learned Single Judge. The learned Single Judge, on considering the issues arising in the writ petition and after hearing the parties to the proceeding, was pleased vide order dated 13.09.2022 to allow the writ petition by interfering with the recovery sought to be made from each of the respondent no. 1 in the above noted writ appeals, on account of wrong fixation of pay made in their respective cases w.e.f., 01.01.2006.
The operative portion of the order dated 13.09.2022, being relevant, is extracted herein below: -
"7. In the case of Shyam Babu Verma & Others vs. Union of India & Others, reported in (1994) 2 SCC 521, the Apex Court was of the view that recovery after several years of paying the higher pay scale would not be just and proper, as the same was not due to the fault of the employee.
Page No.# 10/19
8. In the case of Col. (Retd. ) B. J. Akkara vs Govt. of India & Others, reported in (2006) 11 SCC 709, the Apex Court has held that restraining recovery of excess payment is granted by courts, not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees from the hardship that will be caused if recovery is implemented. It further held that a Government servant in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. Any subsequent action to recover the excess payment would cause undue hardship to him. The Apex Court further held that where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The Apex Court thus held that the matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.
9. In the case of Rafiq Masih (White Washer) (supra), the Apex Court has held that recovery from employees belonging to Class-III & Class-IV service would be impermissible in law, if the excess payment had been made for a period in excess of 5 (five) years.
10. Paragraph 18 of the Rafiq Masih (White Washer) (supra) is reproduced below :-
"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, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
Page No.# 11/19
(iii) Recovery from 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 be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
11. As can be seen from the judgments of the Apex Court, where there has been excess payment made for a number of years, it would be impermissible for recovery of the same from the Class-III & Class-IV employees. The petitioners herein are Class-III employees and there is nothing to show that the wrong fixation of pay made in the year 01.01.2006, had been made on the basis of any fraud or misrepresentation on the part of the petitioners. There is also nothing to show that the petitioners were aware they were getting a salary beyond their entitlement."
5. The appellants herein, being aggrieved with the order dated 13.09.2022 had instituted a review petition being Review Petition No. 172/2022, assailing the order dated 13.09.2022; passed in the above noted writ petitions. The appellants herein, in the review petitions, inter alia, had contended that while fixing the pay of the petitioners in the year 2008, w.e.f., 01.01.2006; an undertaking was executed by each of the respondent no. 1 in the above noted writ appeals to the effect that in the event it is detected that there was a wrong fixation of pay effected in their case, they would refund the excess amount so working out. The appellants, accordingly, had further contended in the review petition that the respondent no. 1 in each of the writ appeal were actually holding Group 'B' post and not Group 'C' post, as held by the learned Single Judge in the order dated 13.09.2022. The learned Single Judge, upon hearing the parties to the proceeding and on perusal of the materials brought on record, was Page No.# 12/19 pleased vide order dated 20.09.2024, to dismiss the review petition being Review Petition No. 172/2022, by holding that the recovery as sought to be made in respect of the respondent no. 1 in the above noted writ appeals, after lapse of 15(fifteen) years, on the basis of wrong fixation made in their respective cases w.e.f., 01.01.2006, was not permissible, in view of the Proposition no. 3, laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (White Washer), reported in (2015) 4 SCC 334.
6. With regard to the contention of the appellants that the respondent no. 1 in the above noted writ appeals, were actually holding Group 'B' posts and not Group 'C' posts, the learned Single Judge rejected the said contention by holding that the said stand was never an issue taken by the appellants at the time of disposal of the writ petition. The learned Single Judge also held that the review petition was so filed for a rehearing in the matter, which was clearly impermissible and that there was no mistake or error apparent on the face of the order dated 13.09.2022.
Being aggrieved, the appellants have instituted the above noted writ appeals, assailing the order dated 13.09.2022, passed by the learned Single Judge in the above noted writ petitions.
7. Mr. A. K. Dutta, learned counsel appearing for the appellants in the above noted writ appeals, has submitted that the pay of each of the respondent nos. 1 in the above noted writ appeals, admittedly, came to be fixed at a higher stage than that they were entitled to. The said fixation of pay in respect of the appellants herein was so done in the year 2008, w.e.f., 01.01.2006, in terms of the recommendation of the 6th CPC, as accepted by the Govt. of India. Mr. Dutta has submitted that the pay so fixed in respect of each of the respondent no. 1 in the above noted appeals, was so fixed after an undertaking was received from them to the effect that in the event any excess payment is found to be made in view of incorrect fixation of pay, the same would be refunded by them and/or adjusted against future payments due to them. Page No.# 13/19
8. Mr. Dutta, by relying upon the decision of the Hon'ble Supreme Court in the case of High Court of Punjab and Haryana & Ors. Vs Jagdev Singh, reported in (2016) 14 SCC 267 has submitted that the Hon'ble Supreme Court has in respect of a recovery made on account of wrong fixation, on the basis of the undertaking similar to the one submitted by the respondent no. 1 in the above noted writ appeals, had held that the principle involved in Proposition no. 2 in the case of State of Punjab Vs Rafiq Masih, reported in (2015) 4 SCC 334 would not be applicable, inasmuch as, the officer concerned was already put to notice that any payment found to have been made in excess would be required to be refunded. Accordingly, the officer being bound by the undertaking, the Hon'ble Supreme Court had proceeded to uphold such recovery.
9. Mr. B. D. Das, learned counsel appearing for the respondent no. 1 in the above noted writ appeals, has submitted that the learned Single Judge had passed the order dated 13.09.2022, by taking into consideration all circumstances arising in the matter and also by noticing that the recovery so sought to be made in respect of each of the respondent no. 1 in the above noted writ appeals, were being so made after a lapse of 15 years from the date their pay was so fixed in the revised scale of pay coming into force. Mr. Das has submitted that the learned Single Judge had rightly applied the decision of the Hon'ble Supreme Court in the case of Rafiq Masih (supra), to the facts of the matter and recoveries of excess payments not being permissible to be so recovered after a lapse of 5(five) years, from the date the same was so authorized, the learned Single Judge had rightly interfered with the order dated 25.06.2021, to the extent that it provides for recovery of excess salaries paid to the respondent nos. 1 in the above noted writ appeals. Mr. Das has submitted that the decision of the Hon'ble Supreme Court in the case of Jagdev Singh (supra), relied upon by the learned counsel for the appellant would have no application to the facts involved in the present proceeding. Accordingly, Mr. Das has submitted that the above noted writ appeals would not mandate an acceptance and the same would be required to be Page No.# 14/19 dismissed.
10. We have heard the learned counsel for the parties and also perused the materials available on record.
11. The issue arising in the present proceeding is as to whether the recovery sought to be made from the respondent no. 1 in the above noted writ appeals after a lapse of more than 15 years, would be sustainable.
12. The learned Single Judge, on consideration of the issues arising in the matter, had by applying the decision in the case of Rafiq Masih (supra), interfered with the recoveries so sought to be made in respect of the respondent nos. 1 in each of the above noted writ appeals by holding that such recoveries would not be permissible to be so made after lapse of 15 years from the date the pay in respect of each of respondent no. 1 in the above noted writ appeals, were so erroneously fixed i.e. w.e.f., 01.01.2006. As noticed hereinabove, the review petition as filed by the appellants herein was also dismissed by the learned Single Judge vide the order 20.09.2024.
13. The appellants in the present proceeding, in support of their case, have placed reliance on the decision of the Hon'ble Supreme Court in the case of Jagdev Singh (supra).
14. We have perused the decision of the Hon'ble Supreme Court in the case of Jagdev Singh (supra) and find that the case of the employee involved in the said case was fixed in terms of the revised Pay Rules notified on 07.05.2023. Thereafter, an exercise was undertaken for adjustment of the excess payment made to the officer concerned, following the notification of the Pay Rules and accordingly, on 08.02.2024, a letter for recovery of the excess amount paid was served on the employee concerned.
15. The Hon'ble Supreme Court had proceeded to reject the claim of the employee therein, on the ground that his case would not be covered by the decision of the Page No.# 15/19 Hon'ble Supreme Court in the case of Rafiq Masih (supra), inasmuch as, the officer concerned was put to notice that any payment found to have been made in excess of his entitlement would be required to be refunded and the employee had furnished an undertaking while opting for the revised pay scale
16. A perusal of the said decision of the Hon'ble Supreme Court in the case of Jagdev Singh (supra) would go to reveal that the recovery involved was so made within a period of around 1(one) year from the date of notification of the revised scale of pay. The appellants herein, have not brought on record any materials to show as to why such wrong fixation effected in respect of each of the respondent no. 1 in the above noted writ appeals w.e.f. 01.01.2006, were not detected prior to the audit carried out for the years 2017-2020. The appellants herein have been regularly enjoying their respective pay and allowances in terms of the fixation made w.e.f.
01.01.2006, in pursuance to the recommendations of the 6 th CPC. Further, the appellants have not contended that the respondent nos. 1 in the above noted writ appeals were, in any manner, responsible for the wrong fixation of their pay w.e.f., 01.01.2006; and/or that they had misrepresented in the matter leading to such wrong fixation of pay. Accordingly, the appellants herein, could not have proceeded to effect recovery from the respondent no. 1 in the above noted writ appeals of the purported excess amount paid to them after lapse of around 15 years from the date when the purported wrong fixation was so made. In the facts and circumstances of the matter, such recovery is clearly iniquitous.
17. The Hon'ble Supreme Court in a recent decision in the case of Jogeswar Sahoo and Ors. Vs District Judge, Cuttack and Ors , reported in (2025) SCC Online SC 724, by noticing its earlier decision on the issue had drawn the following conclusions:
-
"7. The issue falling for our consideration is not about the legality of the retrospective promotion and the financial benefit granted to the appellants on 10.05.2017. The issue for consideration is whether recovery of the amount extended Page No.# 16/19 to the appellants while they were in service is justified after their retirement and that too without affording any opportunity of hearing.
8. The law in this regard has been settled by this Court in catena of judgments rendered time and again; Sahib Ram vs. State of Haryana1, Shyam Babu Verma vs. Union of India2, Union of India vs. M. Bhaskar3 and V. Gangaram vs. Regional Jt. Director4 and in a recent decision in the matter of Thomas Daniel vs. State of Kerala & Ors.5.
9. This Court has consistently taken the view that if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous, such excess payments of emoluments or allowances are not recoverable. It is held that such relief against the recovery is not because of any right of the employee but in equity, exercising judicial discretion to provide relief to the employee from the hardship that will be caused if the recovery is ordered.
10. In Thomas Daniel (supra), this Court has held thus in paras 10, 11, 12 and 13:
"10. In Sahib Ram v. State of Haryana1 this Court restrained recovery of payment which was given under the upgraded pay scale on account of wrong construction of relevant order by the authority concerned, without any misrepresentation on part of the employees. It was held thus: "5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. 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. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs."
11. In Col. B.J. Akkara (Retd.) v. Government of India2 this Court considered an identical question as under:
"27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-6-1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121], Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652]):
Page No.# 17/19
(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.
(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.
29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7-6-1999 till the issue of the clarificatory circular dated 11-9-2001. Insofar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made."
18. Applying the decision of the Hon'ble Supreme Court in the case of Rafiq Masih (supra) as well as in J. Sahoo (supra) to the facts of the present case, we are of the considered view that the recovery now sought to be made from the respondent no. 1 in the above noted appeals, is clearly iniquitous, harsh and arbitrary. Accordingly, the said recovery would not be permissible to be so made.
19. The learned Single Judge, vide impugned order dated 13.09.2022, having drawn Page No.# 18/19 conclusions to the effect that no recovery of the excess payment made to the respondent nos. 1 in the above noted writ appeals was permissible in view of such recovery being effected after a lapse of 15 years from the date their pay was so erroneously fixed and such conclusion being supported by the decisions of the Hon'ble Supreme Court noticed hereinabove, in our considered view, would not call for any interference. Further, the order dated 13.09.2022, passed by the learned Single Judge, impugned in the present appeals, in our considered view also does not suffer from any perversity.
20. At this stage, reliance is placed on the decision of the Hon'ble Supreme Court in the case of Airport Authority of India Vs Pradip Kumar Banerjee, reported in (2025) SCC Online SC 232, wherein, it has been held by the Hon'ble Supreme Court that in an intra-court appeal, the finding of fact of the learned Single Judge, unless such finding is concluded by the appellate bench to be perverse, would not be called to be disturbed. It has been further held that merely because another view or a better view is possible; there should be no interference with or disturbance of the order passed by the learned Single Judge unless both sides agree for a fairer approach on relief.
21. Applying the decision of the Hon'ble Supreme Court, referred to above, to the facts of the present case, we having not found any perversity with regard to the conclusions reached by the learned Single Judge in the impugned order dated 13.09.2022, and the view taken by the learned Single Judge being a plausible view; we are not persuaded by the submissions of the learned Counsel for the appellants, to take a different view in the matter. Accordingly, we are of the considered view that the impugned order, dated 13.09.2022, passed by the learned Single Judge in WP(C) No. 5271/2021, WP(C) No. 258/2022, WP(C) No. 5433/2021, WP(C) No. 5541/2021, WP(C) No. 5225/2021, WP(C) No. 5269/2021, WP(C) No. 5239/2021 and WP(C) No. 5577/2021, would not warrant any interference. Page No.# 19/19
22. In view of the above discussions; we do not find any merit in these writ appeals and consequently, the same stands dismissed. However, there shall be no order as to costs.
JUDGE CHIEF JUSTICE Comparing Assistant