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3. While matters stood thus, the 1st respondent was served with a copy of an audit report dated 1.4.2014 wherein, in respect of him, it was noted that the grant of the first higher grade with effect from 31.1.2001, prior to the declaration of probation in Government service was not in order. Consequently, the dates on which the second higher grade and the third higher grade were granted, were also wrong. Though the 1st respondent submitted a detailed objection, the same was overruled. Faced with recovery proceedings, the 1st respondent approached the Tribunal by filing the aforesaid O.A.(EKM)No.256/2016. On a consideration of the matter and following the law laid down in State of Punjab and other v. Rafiq Masih (White Washer); (2015) 4 SCC 334 and noticing that the decisions in Registrar of Co-operative Societies v. Israil Khan; 2009(4) KLT SN 51 [for the full text of the judgment please see (2010) 1 SCC 440] and Syed Abdul Qadir and others v. State of Bihar and others; (2009) 3 SCC 475 were applied and followed in the judgment of this Court in W.P.(c) 17325 of 2010 dated 4.8.2011, the Tribunal came to the conclusion that there can be no recovery of excess salary paid on account of the wrong fixation. While reaching this conclusion the Tribunal also followed the Division Bench judgment of this Court in Kasaragod District Co-operative Bank Ltd. and another v. Radha.K.A and another; 2016(1)KHC 260(DB)

5. The learned Government Pleader submits that the judgment of the Supreme Court in Rafiq Masih is no longer good law, in the light of the later judgment of the Supreme Court in High Court of Punjab and Haryana and others v. Jagdev Singh; (2016) 14 SCC 267. He would state that the principle in Rafiq Masih cannot be applied in situations where undertakings had been given by the employee concerned, undertaking, to refund any excess payment received. He would refer to Exts.P4, P5 and P6 which are options submitted by the 1st respondent for the grant of higher grade and points out the fact that in each of these options, the 1st respondent had undertaken to refund any excess payment if it was found later that he was not entitled to any payment or part of it. He would, therefore, state that the present case is one that is squarely covered in his favour in terms of the ratio of the judgment of the Supreme Court in Jagdev Singh, and draws our attention, in particular, to paragraphs 10 and 11 of that judgment.

7. In the light of the contentions raised before us, it is necessary to consider the law laid down in Jagdev Singh and to see whether this later judgment of the Supreme Court makes a complete departure from the law laid down in Rafiq Masih. In Jagdev Singh, pay revision benefits were extended to a judicial officer (the employee concerned) from time to time. During each of these occasions, as per the rules applicable to him, he had undertaken to refund any excess payment that may be made. Following the revision of pay scales upon implementation of the First National Judicial Pay Commission ('Shetty Commission') recommendations, the pay of the officer was again revised. The officer was compulsorily retired from service, on January 7, 2002. In February 2004 proceedings for recovery of payments made in excess were initiated against him. On his writ petition, the High Court came to the conclusion that any excess payment made to him prior to his retirement could not be recovered, there being no fraud or misrepresentation on his part. The judgment of the High Court was reversed by the Supreme Court, on a short ground which we will notice after setting out the law laid down in Rafiq Masih. In Rafiq Masih the Supreme Court had, in paragraph 18 of the judgment, observed as follows:-

On a reading of both Rafiq Masih and Jagdev Singh, it is difficult for us to accept the contention of the learned Government Pleader that Jagdev Singh is a complete departure from the principles laid down in Rafiq Masih. From a reading of paragraphs 10 and 11 of Jagdev Singh, it appears to us that the Supreme Court had only clarified that in the case of recovery from retired employees or employees who are due to retire within one year of the order of recovery, there would be no bar in ordering recovery, if the employee concerned had executed an undertaking agreeing to refund any excess payment. We cannot read Jagdev Singh as having laid down the proposition that in every case where there is an undertaking as aforesaid, recovery can be ordered from the employee concerned whatever be the point of time that such payment was made. We cannot overlook the fact that there is not even a suggestion in Jagdev Singh that in the event of there being an undertaking to refund excess pay, none of the situations envisaged as items (i) to (v) of Rafiq Masih can be pressed into service.