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We have heard the learned Counsels for both parties. As submitted by the respondents, the pay of the applicants has been stepped up with a view to remove the genuine anomaly arising from the wrong fixation of pay of their junior Mrs. Abha Misra of K.V. Noida at a higher stage. When the respondents realized that the pay of Mrs. Abha Misra was wrongly fixed at Rs. 6200 instead of Rs. 6025, they have rectified the mistake. By this time the applicants have already drawn the pay at the higher stage. The respondents have not issued any show cause notice why the pay of the applicants should not be regulated by fixing at the original stage at which they have been drawing before the stepping up was ordered. In view of the above facts of the case, we do not find any illegality in withdrawing the step up of pay granted to the applicants vide the impugned letter dated 14.9.04 and regulate their pay accordingly. However, as far as the recovery is concerned, it is well settled that recoveries on account of mistakes not attributable to the applicants cannot be made and the ratio of the decision of their Lordships in the case of Shyam Babu Verma v. Union of India , can be clearly invoked.

3. The reply filed by the respondents was on similar lines as in O.A. 837/04 and O.A. 845/04 (supra). However, the Counsel for the respondents Mr. Sunil Shanker, brought to our notice a recent judgment dated 14.10.05 of the Hon'ble High Court of Kerala in the case of Santhakumari P.J. v. State of Kerala and Ors. ILR 2005 (4) 563 wherein it has been held that if the mistake is mutual, both the Department as well as the employees are bound by the statutory rules and the reasoning that unless the mistake is committed by the beneficiary, the amount cannot be recovered is not the correct enunciation of law. In the said judgment, the Division Bench was considering the conflicting views expressed by two learned Single Judges in two cases. In Rose v. State of Kerala , a learned Single Judge rejected the plea that the Government is disabled from demanding the over payments because if a petitioner is denied any benefits he has aright to insist for payment and likewise he owes a duty to pay back the excess amount received by him. The learned Single Judge also held that the plea that amount paid have already been appropriated and one may find it difficult to pay it back can only be a self serving argument and not equitable. However, Another learned Single Judge of the Hon'ble High Court in the case of Sivankutty Nair v. Secretary to the Government took the view that the excess amount paid on account of wrong fixation of pay cannot be recovered unless the employee has in any way contributed to the mistake. The question before the Hon'ble High Court was whether the Government is entitled to recover the amount paid to an employee in violation of the statutory provision on account of wrong fixation of pay in a case where employee has not contributed to the mistake. The facts of the case before the Hon'ble High Court was that the petitioner while working as HSA in S.V.V.H.S. Miyapadavu from 19.9.1967 attained the age of superannuation on 30.9.93. As per the provision contained in the Kerala Service Rules, being a teaching staff, the petitioner was entitled to continue in service till the end of the academic year. But the petitioner was not entitled to any leave except casual leave as per Ruling No. 2 of Rule 60 of Part I, KSR. The petitioner had applied for commuted leave for nine days for the period from 9.12.93 to 17.12.93 vide application dated 3.12.93. As per the provisions contained in the Kerala Service Rules from the date of commencement of leave, service of the petitioner would stand terminated. Accordingly, the order was issued treating the petitioner retired from service with effect from 9.12.93, the date of the availing leave. Later, the pay of the petitioner was re-fixed as Rs. 2070 w.e.f. 15.7.93 and Rs. 2240 w.e.f. 15.7.94 and the liability certificate showing the liability of Rs. 16,297 was issued being the irregular payment of pay and allowances from 9.12.1993 to 31,3.1994.

9. In Nand Kishore Sharma and Ors. v. State of Bihar and Ors. 1995 (Supp) SCC 722 the Apex Court has been considering the same question of recovery of over-payment on wrong fixation of pay and held as under:

We agree with the High Court that unless there was an order of the Government sanctioning and granting revised pay scales to the appellants, they were not entitled to claim the same. But at the same time, we are of the view that the appellants cannot be blamed. The Anomaly Committee recommended grant of higher pay scales of them. The Finance Department also concurred with the same and as a result thereafter the appellants were given the pay scales and were disbursed the arrears as a lump-sum, Having paid the arrears to the appellants, the State Government could not have reversed the same specifically without complying with the rules of natural justice. It is not disputed that no opportunity was afforded to the appellants before passing the order of recovery. We, therefore, grant limited relief to the appellants to the extent that we quash the order directing recovery of the amount paid to the appellants in the year 1981. The State Government shall not effect recovery of the arrears in the revised pay scale for the period from 1.1.1976 to 1.1.1981. We, however, agree with the High Court that the appellants were not entitled to the revised pay scale and as such we hold that it was rightly withdrawn from them.

15. This Tribunal has also been following the principle laid down by the Hon'ble Supreme Court regarding recovery of excess payment in a number of its orders. In the case of Neelakanta Shaha v. Union of India and Ors. 1987 (3) SLJ (CAT) 306, the Calcutta Bench of this Tribunal decided a case where recovery of over payment of more than 13,000 due to wrong fixation of pay was involved. The Government ordered the recovery of the 50% of this amount waiving the balance of dues on compassionate grounds. But this recovery was not allowed from the applicant. In the said judgment dated 11.2.87 the Division Bench observed as follow: