Akashwani Doordarsan Administrative Staff Association vs M/o Information And Broadcasting on 30 October 2026

ORDER

By Dr. Chhabilendra Roul, Member (A)

The instant Original Application has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985. When the matter was taken up for hearing on 30.09.2026, the learned counsel for the applicants, on instructions, submitted (paragraph 4 of the daily order) that the applicants are now confining their relief only to a direction to the respondents not to recover amounts already paid to them in pursuance of their earlier pay fixation which was

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withdrawn vide order dated 5.01.2016. Hence, this Tribunal will now adjudicate the issue whether the respondents are within their right to recover any excess amount paid to the applicants in view of the re-fixation of their pay vide final order dated 05.01.2016.

2. Factual Matrix 2.1 Before implementation of the 6th CPC recommendations, the employees holding the ministerial posts of Head Clerk and Assistants were in the pay scale of Rs. 5500-9000. While recommending parity between Field and Secretariat Offices the 6th CPC recommended merger of few grades in the subordinate/field offices at para 3.1.14 of its Report. The Commission recommended that in case of ministerial post in non-Secretariat Offices, the posts of Head Clerks, Assistants, Office Superintendent and Administrative Officers Grade III in the respective pay scales of Rs.5000- 8000, Rs.5500-9000 and Rs.6500-10500 will stand merged. The revised pay structure for all these categories of employees recommended by the Commission was Pay Band: 2 in the Grade Pay of Rs. 4200/-.

2.2 Pursuant to the Notification No. 470 issued by the Government, notifying the Revised Pay Rules [CCS (Revised Pay) Rules, 2008] for fixation of pay of Central Government employees in the Pay Bands recommended by the 6th CPC

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w.e.f. 01.01.2006, various Offices/Stations of DG:AIR issued orders fixing the pay of officers posted in various grades/posts in their respective offices. Aggrieved by the pay fixations, some of the employees of the Directorate represented for re-fixation of their pay as per Note 2-A read with illustration 4-A in Part-B Section II of the Gazette Notification.

2.3 The said representations of the employees were examined by the DG:AIR and all Offices/Stations of AIR and also Directorate General of Doordarshan were informed to fix the pay of Head Clerks, Assistants and Stenographers Grade- II working in All India Radio and Doordarshan as per illustration 4-A in accordance with Note 2-A below Rule 7 of the Ministry of Finance Notification dated 29.08.2008 vide Circular No. A-26022/02/2012-S.II dated 3/4.10.2012. Accordingly, the pay of Head Clerks, Assistants and Stenographers Grade-II working in All India Radio and Doordarshan were fixed by their respective Head of Offices by notionally fixing their basic pay in the corresponding revised (upgraded) pay scale (i.e. Rs.6500-1 0500) applying Rule 7-A

(i) and (ii) of CCS (RP) Rules, 2008, thereafter applying benefit of bunching on the revised (upgraded) scale, wherever applicable as per proviso to the said Rule, to arrive at the stage in the Pay Band of Rs. 9300-34800 (PB-2).

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2.4 The matter was subsequently re-examined by DG:AIR in consultation with their Internal Financial Unit (IFU) and it was found that there was an error apparent in giving bunching effect, therefore, it was decided to withdraw the pay fixation of Head Clerks, Assistants and Stenographers Grade- II done by applying the multiplication factor of 1.86 at Rs. 6500 as on 01.01.2006 and further giving bunching effect as described in previous paragraph and to recover the overpayment so made to these categories of employees. The representations against the said action was again received by DG: AIR and in view of representations from employees associations, DG:AIR referred the matter to Prasar Bharati Secretariat for confirmation of the proposed action vide their I.D. No. A-26022/02/2012-S.II dated 22.05.2013.

2.5 The issue was examined in Prasar Bharati Secretariat and a reference with certain recommendations was made to the Ministry of I & B by the Prasar Bharati Secretariat vide I.D.No. Misc.l/330/2012- PPC dated 10.02.2014. Ministry of l & B in its turn examined the issue in consultation with the Deptt. of Expenditure and clarified vide their letter No. A- 26015/3/2014-BAP dated 20.8.2014 that the pay of Head Clerks, Assistants and Stenographers Grade-II in All India Radio and Doordarshan were to be fixed as per Note 2-B of Rule 7 of CCS (RP) Rules 2008 as per illustration 4-B. A copy

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of the advice received in this regard from the Department of Expenditure vide their I.D. Note dated 12.08.2014 was also enclosed by the Ministry of I & B alongwith their clarification dated 20.8.2014.

2.6 Further another reference was made by Prasar Bharati Secretariat to the Ministry vide letter No.Misc.l/330/2012- PPC(Pt.) dated 20.10.2014 reiterating that the case of Head Clerks, Assistants and Stenographers Grade-II of All India Radio and Doordarshan, was a case of upgradation of pay scales and as such pay fixation in respect of such employees would need to be considered as per illustration 4 (A) Read with clause (A) (i) and (ii) of Rule 7 and further that similar view had been taken by CAT (Ernakulam Bench) in respect of its staff in its order dated 07.03.2013 and also that the CAT (Ernakulam Bench) had also directed that the said decision be considered as a judgment in rem, i.e. similarly situated persons be also granted the same benefit in order to avoid multiplicity of litigation. The Ministry of I & B took up the matter with the Department of Expenditure again, who vide their I.D. Note dated 19.2.2015 advised as follows:- "The provision of the Rule 7, read with Note 2A and 2B belowthis are quite clear. The same may be invoked based on the facts of this case and the provision of the CCS (RP) Rules, 2008. But it may be ensured that fixation of pay in the applicable pay band will be done by multiplying the existing basic pay (pay drawn in the pre-revised pay scale) as on 1.1.2006 by a factor of 1.86 and rounding the

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resultant figure to the next multiple of 10 and thereafter the applicable grade pay will be payable. "

2.7 The Department of Expenditure vide their OM No.FTS154226/2015//E-III(A) dated 28.07.2015 addressed to the Ministry of I & B with copy to Prasar Bharati Secretariat informed that the instructions issued by Prasar Bharati Secretariat vide its order dated 18.06.2015 were not in conformity with CCS (RP) Rules 2008. The said order reads as follows:

"As per Rule 7 of the CCS (RP) Rules, 2008, where a post has been upgraded as a result of the recommendations of the Sixth CPC as indicated in Part B or Part C of the First Schedule, the pay in the pay band will be determined by multiplying the existing basic pay as on 1.1.2006 by a factor1.86 and rounding the resultant figure to the next multiple of ten. The grade pay corresponding to the upgraded scale as indicated in Column 6 of Part B or C will be payable in addition. To ease the complexity of multiplication and rounding off, this Department had issued Fitment Tables for various pre-revised pay scales. In the case of posts which have been upgraded as a result of the recommendations of the Sixth CPC, the fitment tables of the pre-revised scale of pay in which the officer has drawn his pay as on 1.1.2006 has to be used for arriving the pay in the Pay Band and thereafter the Grade Pay corresponding to the upgrades pay as indicated in Column 6 of Part B or C will be payable."

2.8 In view of the above, the instructions issued by Prasar Bharati Secretariat to give the minimum of the corresponding stage of Rs.6500/- in the pre-revised scale of pay of Rs.6500- 1 0,500/- was wrong and needed to be rectified immediately.

2.9 Responding to the above, Department of Expenditure issued OM No. FTS154226/2015//E-III(A) dated 28.07.2015, whereby instructions were issued to the DG AIR among

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others, to put on hold the Prasar Bharati Secretariat's Order No.Misc.l/330/PPC dated 18.6.2015 regarding fixation of pay of Head Clerks, Assistants and Stenographers Grade-II. Simultaneously, another attempt was made to justify the case to the Ministry of Finance, Department of Expenditure by sending another Letter No. Misc.1/330/2012-PPC dated 19.08.2015 to the Ministry of I & B. But the Ministry of I & B advised Prasar Bharati to implement the directions given by the Ministry of Finance, Department of Expenditure vide its OM No. FTS154226/2015//E-III(A) dated 28.07.2015. Consequently, revised instructions were issued to the DG AIR by the Prasar Bharati Secretariat vide letter No. Misc. 1/330/2012-PPC (vol.II) dated 31.12.2015 to fix the pay of Head Clerks, Assistants and Stenographers Grade-II working in AIR and Doordarshan as per CCS (RP) Rules, 2008. Based on Prasar Bharati Secretariat letter dated 31.12.2015, further instructions were issued by the DG, AIR vide letter No. A- 26022/02/2012-S.II dated 05.01.2016 to all offices of AIR and Doordarshan. 2.10 In pursuance of the final order regarding pay fixation of the applicants and similarly placed employees vide order dated 31.12.2015, the respondents issued order dated 5.1.2016 to recover excess amounts paid to the employees as per earlier pay fixation order. Being aggrieved, the applicants filed the present OA seeking the aforementioned relief, now

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modified to restrict only in respect of recovery of excess payments.

3. Pursuant to the notices issued, the respondents entered appearance and filed their reply, to which the applicants have filed their rejoinder.

4. The chronology of further litigation -

(i) Initial order dated 22.02.2023 in the OA.

(ii) Respondents challenged the order before Hon’ble High Court by filing Writ Petition (C) No.2263/2024. Respondents withdrew the Writ Petition with liberty to prefer their remedies before this Tribunal.

(iii) Then filing of MA No.3792/2024 by Respondents seeking reconsideration of OA.

(iv) MA No.3792/2024 was dismissed vide order dated 16.10.2024.

(v) Filing of fresh WP (C) No.74846/2024 challenging the order in MA No.3792/2024.

(vi) Hon’ble High Court of Delhi vide order dated 08.01.2025 remanded the case for fresh decision in MA.

(vii) Decision in MA for fresh hearing dated 22.01.2026

5. Submissions by Learned Counsel for the Applicants 5.1 The learned counsel for the applicants reiterated that his submissions as recorded in order dated 22.01.2026 from 2.1

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till 2.7 shall be considered as his submission in the OA. The same is extracted here: “2.1 Per contra, the learned counsel for the respondents in MA refers to paragraph 3 the order dated 22.02.2023 passed in OA No. 261/2016, which is reproduced as under: “3. Learned counsel for the respondents on the other hand submits that being custodians of the public fund, the respondents are obliged to effect recovery once it is detected that over payment has been made to the applicants. She further submits that all the applicants at the time of fixation of pay had furnished a written undertaking that in case any over payment is made, they shall be liable to refund the same view of this undertaking as also the low laid down by the Hon'ble Supreme Court in Civil Appeal No. 3500 of 2006 titled Jagdev Singh vs. High Court of Punjab and Haryana and Ors., the respondents have no option but to effect the recovery She elaborates that in the aforementioned matter, the Hon'ble Supreme Court had categorically stipulated that once the employee has given an undertaking, he cannot escape recovery of any excess payment which may have been granted to him beyond entitlement.” Further he refers to paragraph 5 of the order dated 16.10.2024 which is reproduced below: “5. The decision of the Hon'ble Apex Court in Jagdev Singh (supra) the OA, was decided in light of the decision of the Hon'ble Apex Court in Rafiq Masih. According to us, the respondents are in fact trying to seek review of the order dated 22.02.2023. As there is no error of fact or law pointed out in the order, more so learned counsel for applicant in the MA, the contends of the MA, had been duly dealt with by the Tribunal as detailed above. Accordingly, we do not find merit in the MA, the same is dismissed.”

In view of the above, the learned counsel for the applicants in the OA submits that it is not the case that this Tribunal has failed to consider the ratio of the judgment in Jagdev Singh (supra). The Tribunal has duly considered both the judgments of the Hon’ble Apex Court in Rafiq Masih (supra) as well as Jagdev Singh (supra) and upon considering the facts and circumstances of the present case, was pleased to allow the OA and also to dismiss the earlier MA. In view thereof, there is no necessity to reconsider the matter, as the Tribunal has taken appropriate steps after considering both the judgments of the Hon’ble Apex Court.

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2.2 He further submits that in the order dated 25.09.2024 passed in W.P.(C) No. 2663/2024, as well as the order dated 08.01.2025 passed in W.P.(C) No. 17590/2024, the Hon’ble Delhi High Court has not expressed any opinion on the issue as to whether the applicants in the present MA are entitled to effect any recovery. 2.3 As regards the undertakings allegedly given by the applicants in the OA, he refers to Annexure A-5 at page 26 and reemphasizes that the said undertakings pertain only to any excess payment in respect of the grant of 2nd ACP w.e.f. 06.02.2008, and not to the refixation of pay of the applicants in the OA, which was effected w.e.f. 01.01.2006. The subject matter of the Original OA is the fixation of pay of the applicants therein w.e.f. 01.01.2006. He further refers to Annexure A-1 of the OA and the first paragraph of the same is reproduced as under: “Reference is invited to DG:AIR's letter dated 4.10.2012 regarding pay fixation of Head Clerks/Assistants/Steno Grade II working in DG:AIR and Doordarshan as per Illustration 4 (A) In note to below Rule 7 of 6th CPC Gazette Notification. While reviewing the pay fixation case by FMRRS, it was noticed-that-pay of Head Clerks/UDCs/ Stenos/Accountants etc drawing pay scale of 5000- 9000 has wrongly been upgraded in the pay scale of Rs. 6500-10500 after given the benefit of bunching. However, there is no provision of bunching in 6th Central Pay Commission.”

2.4 As brought to the notice of the Tribunal by the learned counsel for the applicants in the OA, the undertakings relied upon by the respondents pertain to the grant of 2nd ACP, whereas the relief sought in the OA relates to the refixation of pay w.e.f. 01.01.2006. Therefore, the said undertakings have no relevance to the relief claimed by the applicants in the OA. 2.5 He further submits that, in a similar factual situation, an identical matter was adjudicated by a Coordinate Bench of this Tribunal at Madras, vide order dated 30.10.2018, passed in OA No. 310/1693/2016. He refers to paragraph 5 of the same, which is reproduced as under: “5. Further, a perusal of the order of the Hon'ble Apex Court in the case of High Court of Punjab & Haryana & Ors v. Jagdev Singh in Civil Appeal No. 3500/2016 dated 29.07.2016, cited supra would show that the Hon'ble Supreme Court had made the observations in respect of a Civil Judge, who was not a Class-III and Class-IV employee. As the Hon'ble Apex Court had made its observations regarding the undertaking given by the employee in category (ii) of the citation referred to therein which pertained to "recovery from retired employees, or employees who are due to retire within one year, of the order of recovery" and not a

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situation mentioned against category (1) that related to "recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service'), we are of the view that the ratio of State of Punjab & Ors. vs. Rafiq Masih (Whiter Washer) case would be applicable to the applicant's case and not the case relied upon by the respondents unless the applicant is regarded as a Class II officer.”

The said order of the Tribunal was challenged before the Hon’ble Madras High Court in W.P. No. 1369/142/2019, wherein the decision of the Tribunal was upheld. Subsequently, the applicants in the present MA also approached the Hon’ble Supreme Court by filing SLP No. 35335/2024, which was dismissed vide order dated 13.09.2024. 2.6 In view of the above, the issue relating to recovery from employees by applying the ratio of the judgments in Rafiq Masih (supra) vis-à-vis Jagdev Singh (supra) has already been duly considered, and the matter has been settled through various OAs decided by this Tribunal. 2.7 He further refers to the judgment of the Hon’ble Apex Court dated 04.04.2025 in Jogeswar Sahoo & Ors. v. The District Judge, Cuttack & Ors., SLP (C) No. 5918/2024, wherein it was once again reaffirmed that the judgment in Rafiq Masih (supra) would apply in all cases, irrespective of the existence of any undertaking. Particularly he refers to paragraph 11, which is reproduced as under: “11. In Col. B.J. Akkara (Retd.) v. Government of India 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 76-1999. 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 Bhaskar [(1996) 4 SCC 416 India v. M. 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139: 1997 SCC (L&S) 1652]):

(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

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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. 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.”

5.2 In addition, the learned counsel for the applicants submits that the respondents have cited the judgment of the Hon’ble Apex Court in High Court of Punjab and Haryana vs. Jagdev Singh, Civil Appeal No.3500/2016 decided on

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29.07.2016 where an employee has received any benefit on account of wrong fixation of pay and has furnished an undertaking to refund the excess amount, recovery of such excess payment is permissible in law. Learned counsel for the applicants further submits that no undertaking was furnished by the employees while accepting the pay as fixed in the year 2013. Hence, the ratio laid down by the Hon’ble Apex Court in Jagdev Singh (supra) is not applicable to the facts and circumstances of the present case. 5.3 Learned counsel for the applicants also refers to the order dated 22.01.2026 passed by this Tribunal in MA No. 3792/2024, wherein this Tribunal has taken into consideration the judgment of the Hon’ble Apex Court in Jogeswar Sahoo and Others v. District in SLP No. 5918/2024. It is submitted that the Hon’ble Apex Court has categorically held that the principles laid down in State of Punjab and Ors. vs. Rafiq Masih, (2015) 4 SCC 334 would apply irrespective of the existence of any undertaking. 5.4 Learned counsel for the applicants further refers to the spreadsheet wherein various judgments of the Coordinate Bench of this Tribunal, Cuttack Bench, have been mentioned, including the judgment in OA No. 260/000/466/2018, decided on 06.12.2023.

6. Submissions by learned counsel for the Respondents

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6.1 Per contra, referring to order dated 31.12.2015 (Annexure A-2), learned counsel for the respondents states that the issue involved in the present case is not that of bunching but refixation of pay which was wrongly given to the applicants and she refers to paragraphs 2 and 3 of the aforesaid order, which is reproduced below: "2. The matter has been re-examined in consultation with Budget & Accounts Division, Prasar Bharati in the light of clarification issued by Department of Expenditure vide their O.M. No. 154226/2015-E-III(A) dated 28.07.2015 (copy enclosed) as conveyed by Ministry of Information & Broadcasting vide their letter No. A-26015/03/2014-BAP dated 29.10.2015 (copy enclosed). The matter of pay fixation as on 01.01.2006 in respect of Head Clerks/Assistants/Stenographers Grade II working in All India Radio and Doordarshan is rectified as under: "The pay in the pay band will be determined by multiplying the existing basic pay as on 01.01.2006 by a factor of 1.86 and rounding the resultant figure to the next multiple of ten. To ease the complexity of multiplication and rounding off, the fitment tables of pre-revised scales of pay in which the officer has drawn his pay as on 01.01.2006 has to be used for arriving at the pay in the pay band and thereafter, the grade pay corresponding to the upgraded scale as indicated in Column-6 of Part-B or Part-C of CCS (Revised Pay) Rules, 2008 will be payable in addition."

3. This issues in supersession of Prasar Bharati Secretariat's above referred Communication dated 18.06.2015 and Communication of even number dated 11.08.2015."

6.2 Learned counsel for the respondents submits that the issue involved is not one of bunching; rather, the pay was multiplied by the factor of 1.86 to an incorrect base. It is submitted that the base for such multiplication ought to have been the pre-revised pay scale, and not the revised pay scale.

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6.3 On the other hand, learned counsel for the respondents submits that the judgment of the Coordinate Bench of this Tribunal at Cuttack as well as the judgment in Jogeswar Sahoo (supra) are distinguishable on facts, as the factual circumstances prevailing in those cases are different from those in the present case. 6.4 She further referred to her averments as recorded in order dated 22.01.2026 in MA 3792/2024: “3.1 In rejoinder, the learned counsel for the applicants in the MA submits that it is not correct to state that the undertakings were taken only in respect of the grant of 2nd ACP. According to her, the undertakings were also taken in relation to the refixation of pay, and she refers to such undertakings, a sample whereof has been placed at page 33 of the MA.

3.2 She further refers to paragraphs 6 and 7 of the order dated 30.10.2018 passed by the Coordinate Bench of this Tribunal at Madras in OA No. 310/1693/2016, and submits that there is no specific finding therein with regard to the applicability or otherwise of the ratio of the judgment in Jagdev Singh vis-à-vis Rafiq Masih in that case.

3.3 The aforesaid case, therefore, stands distinguished from the present case. It is submitted that, in that matter, the undertakings appear to have been taken after retirement, whereas in the present case, the undertakings were obtained at the time of refixation of pay. To substantiate her claim, she refers to paragraph 3 of the judgment dated 09.03.2020 in W.P(C) No. 13690 and 14032 of 2019, where the Madras High Court has held as follows:

“3. We do not find any reason to interfere with the orders passed. The petitioners cannot produce any material before this Court to contend. On the contrary what was produced before Tribunal was the undertaking given after the retirement. If the petitioners have got any undertaking before retirement, there is no necessity to produce and rely upon the undertaking given after retirement”

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7.

Analysis

7.1 The matter regarding recovery of wrongful payments to an employee during and after superannuation has been succinctly discussed in its judgment by the Hon’ble Supreme Court in Rafiq Masih (supra). This judgment derived its basis from the Directive Principles of the Constitution of India enshrined in Articles 38, 39, 39-A, 43, 46. A holistic essence of these Articles mandates the state to ensure adequate means of livelihood and by providing for adequate wages so as to ensure appropriate standards of living to the citizens of this country. This extends to the employees, serving or retired, of the State. Hence, any action by the State, as an employer, ordering recovery from an employee would be sustainable as long as it is not rendered iniquitous to the extent that action of recovery would be more unfair, wrongful, improper, unwarranted than corresponding right of employer to recover. 7.2 Against the above background, can it be said that the State is barred to recover any amount due from the employee due to any circumstance, if it does not satisfy the cannons of ensuring adequate means of livelihood? The Apex Court has not prohibited, in the Rafiq Masih (supra) case, that recovery of such benefit of overpayment cannot be effected from an employee who was involved in the mistake committed by

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employer in wrong fixation, or was guilty of furnishing any factually incorrect information, or fraud or misinterpretation and who has furnished an undertaking to refund such payment which would be found in excess or irregular or illegal. The Rafiq Masih (supra) judgment has not completely taken away the right of the State to recover any amount from the employee under these circumstances, but it has restricted the scope of non-recovery to specific instances, keeping the basic duty of the State to ensure the basic standards of livelihood to the employee to maintain dignity of life as the gold standard for such recovery. Though, this judgment has given a list of circumstances when recovery is impermissible by law, it has left to the scope to add other such circumstances to qualify such gold standard for non- recovery. Pargraphs 8 and 10 of the said judgment say: “8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. xxx xxx xxx

10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all

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governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law.”

7.3 Many a time, employees are given monetary benefits which were in excess of their entitlement. These benefits flows to them, consequent upon a mistake committed by the authority concerned, in determining the emolument payable to them. The mistake could have occurred on account of a variety of reasons; including the grant of a status which the employee concerned was not entitled to; or payment of salary in a higher scale, than in consonance with the right of the employee, consequent upon the upward revision of pay scale; or a wrongful fixation of salary of the employee; or for having been granted allowances, for which the employee concerned was not authorized. 7.4 With the above contextual background, the Apex Court has laid down specific instances/circumstances when recovery from the employee would be impermissible “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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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(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.

(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.”

7.5 When the matter was under consideration in Rafiq Masih (supra) case a reference was made to a Three Member Bench of the Apex Court because of the apparent difference of opinion expressed on one hand in the cases of Shyam Babu Verma and Ors. vs. Union of India & Ors., (1994) 2 SCC 521 and Sahib Ram Verma vs. State of Haryana, (1995) Supp. 1 SCC 18 and on the other hand, in Chandi Prasad Uniyal and Ors. v. State of Uttarakhand & Ors., (2012) 8 SCC 417. The two Judge Bench in Rafiq Masih (supra) matter was referred to a three Judge Bench of the Apex Court. The order of reference made by two Judge Bench of the Apex Court reads as under: "In view of an apparent difference of views expressed on the one hand in Shyam Babu Verma and Ors. vs. Union of India & Ors. (1994) 2 SCC 521 and Sahib Ram Verma vs. State of Haryana (1995) Supp. 1 SCC 18; and on the other hand in Chandi Prasad Uniyal and Ors. vs. State of Uttarakhand & Ors. (2012) 8 SCC 417, we are of the view that the remaining special leave petitions should be

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placed before a Bench of Three Judges. The Registry is accordingly directed to place the file of the remaining special leave petitions before the Hon'ble the Chief Justice of India for taking instructions for the constitution of a Bench of Three Judges, to adjudicate upon the present controversy."

7.6 The three Judge Bench of the Apex Court furnished its opinion in the following manner: “5. In Shyam Babu Verma's case (1994) (Supra), this Court while observing that the petitioners-therein were not entitled to the higher pay scales, had come to the conclusion that since the amount has already been paid to the petitioner, for no fault of theirs, the said amount shall not be recovered by the respondent-Union of India. The observations made by this Court in the said case are as under: "Although we have held that the petitioners were entitled only to the pay scale of Rs.330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs.330-560 but as they have received the scale of Rs.330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them.

6. In Sahib Ram Verma's case (Supra), this Court once again held that although the appellant therein did not possess the required educational qualification, yet the Principal granting him the relaxation, had paid his salary on the revised pay scale. This Court further observed that this was not on account of mis-representation made by the appellant but by a mistake committed by the Principal. In a fact situation of that nature, the Court was pleased to observe that the amount already paid to the appellant need not be recovered. In the words of the Court: "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 appellant cannot be held to be fault. Under the circumstances the amount paid till date may not be recovered from the appellant."

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7. In our considered view, the observations made by the Court not to recover the excess amount paid to the appellant-therein were in exercise of its extra-ordinary powers under Article 142 of the Constitution of India which vest the power in this Court to pass equitable orders in the ends of justice.

8. In Chandi Prasad Uniyal's case (Supra), a specific issue was raised and canvassed. The issue was whether the appellant-therein can retain the amount received on the basis of irregular/wrong pay fixation in the absence of any misrepresentation or fraud on his part. The Court after taking into consideration the various decisions of this Court had come to the conclusion that even if by mistake of the employer the amount is paid to the employee and on a later date if the employer after proper determination of the same discovers that the excess payment is made by mistake or negligence, the excess payment so made could be recovered. While holding so this Court observed at paragraphs 14 and 16 as under: "14.We are concerned with the excess payment of public money which is often described as "taxpayers' money" which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see when the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reason like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

16. The appellant in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However we order that excess payment made be recovered from the appellants salary in 12 equal monthly instalments.”

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9. In our view, the law laid down in Chandi Prasad Uniyal's case, no way conflicts with the observations made by this Court in the other two cases. In those decisions, directions were issued in exercise of the powers of this Court under Article 142 of the Constitution, but in the subsequent decision this Court under Article 136 of the Constitution, in laying down the law had dismissed the petition of the employee. This Court in a number of cases had battled with tracing the contours of the provision in Article 136 and 142 of the Constitution of India. Distinctively, although Page 20 20 the words employed under the two aforesaid provision speak of the powers of this Court, the former vest a plenary jurisdiction in supreme court in the matter of entertaining and hearing of appeals by granting special leave against any judgment or order made by a Court or Tribunal in any cause or matter. The powers are plenary to the extent that they are paramount to the limitations under the specific provisions for appeal contained in the Constitution or other laws. Article 142 of the Constitution of India, on the other hand is a step ahead of the powers envisaged under Article 136 of the Constitution of India. It is the exercise of jurisdiction to pass such enforceable decree or order as is necessary for doing ‘complete justice’ in any cause or matter. The word ‘complete justice’ was fraught with uncertainty until Article

of the Constitution received its first interpretation in Prem Chand Garg v. Excise Commissioner, U.P., AIR (1963) SC 996 which added a rider to the exercise of wide extraordinary powers Page 21 21 by laying down that though the powers are wide, the same is an ancillary power and can be used when not expressly in conflict with the substantive provisions of law. This view was endorsed by a Nine-Judges Bench in Naresh Shridhar Mirajkar v. State of Maharashtra, (1966) 3 SCR 744 reiterated by a Seven Judge Bench in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 and finally settled in the Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409.

10. Article 136 of the Constitution of India, confers a wide discretionary power on the Supreme Court to interfere in suitable cases. Article 136 is a special jurisdiction and can be best described in the words of this Court in Ramakant Rai v. Madab Rai, (2003) 12 SCC 395, “It is a residuary power, it is extraordinary in its amplitude, its limits when it chases injustice, is the sky itself”. Article 136 of the Constitution of India was legislatively intended to be exercised by the Page 22 22 Highest Court of the Land, with scrupulous adherence to the settled judicial principle well established by precedents in our jurisprudence. Article 136 of the Constitution is a corrective jurisdiction that vest a discretion in the Supreme Court to settle the law clear and as forthrightly forwarded in the case of Union of India v. Karnail Singh, (1995) 2 SCC 728, it makes the law operational to make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as under Article 141 of the Constitution.

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11. Article

of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute. It is a power that gives preference to equity over law. It is a justice oriented approach as against the strict rigors of the law. The directions issued by the court can normally be categorized into one, in the nature of moulding of relief and the other, as the declaration of law. ‘Declaration of Law’ as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the Highest Court of the land. This Court in the case of Indian Bank v. ABS Marine Products (P) Ltd., 2006 5 SCC 72, Ram Pravesh Singh v. State of Bihar, (2006) 8 SCC 381 and in State of U.P. v. Neeraj Awasthi (2006) 1 SCC 667, has expounded the principle and extolled the power of Article 142 of the Constitution of India to new heights by laying down that the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Court have compartmentalized and differentiated the relief in the operative portion of the judgment by exercise of powers under Article 142 of the Constitution as against the law declared. The directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. This Court on the qui vive has expanded the horizons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the case.

12. Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first Page 25 25 two judgments and the latter judgment.

13. In that view of the above, we are of the considered opinion that reference was unnecessary. Therefore, without answering the reference, we send back the matters to the Division Bench for its appropriate disposal.”

7.7 As there is no conflict between the Chandi Prasad Uniyal (supra) case (Invoking Article 136/141 and the Shyam Babu Verma (supra) and Sahib Ram Verma (supra)

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buttressed by Rafiq Masih case (18th December, 2014), the principles laid down in Chandi Prasad (supra) case are also valid. The principles laid down in Chandi Prasad Uniyal (supra), where recoveries are possible are as follows: The amount is recoverable when:

(i) If the excess payment is due to any misrepresentation or fraud on the part of the recipient (para 9)

(ii) When an undertaking is given by the employee that in case wrong fixation he/she refund the excess payment ( implicit in Para 18) 7.8 In Paragraph 17, the Apex Court in Chandiprasad Uniyal (supra) case has held: “We are, therefore, of the considered view that except few instances pointed out in Sayed Abdul Qadir case(supra) and in Col J.B. Akkara (Rtd) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered.”

7.9 The question comes: what are those few instances? In all those cases, hardship to the employee had been considered. The Rafiq Masih (Dec 2014) has expanded the hardship cases. 7.10 After the Rafiq Masih (supra) judgment, was further analysed and expanded by the Apex Court in High Court of Punjab & Haryana Vs. Jagdev Singh in Civil Appeal No.

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3500 of 2006 decided on 29.7.2016. The Apex Court in Jagdev Singh (supra) case held: “11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking. 12 For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years. 13 The judgment of the High Court is accordingly set aside. The Civil Appeal shall stand allowed in the above terms. There shall be no order as to costs.”

7.11 Perusal of the judgment of the Apex Court in Jagdev Singh (supra) case shows that it has expanded/clarified the only clause (ii) of the Rafiq Masih (supra) decision. The clause (ii) of the said paragraph in Rafiq Masih (supra) case states “Recovery from retired employees, employees who are due to retire within one year, of order of recovery” is impermissible by law. In Jagdev Singh (case), the Apex Court put a rider or proviso that such recoveries are permissible when an employee was put to notice or intimated in respect of such recovery and the employee has furnished an undertaking that if it was found that excess payment have been made, he/she shall refund such excess amount.

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7.12 The learned counsel for the applicants has reiterated that the ratio of the Judgment of the Apex Court in Jageswar Sahoo (supra). In Paragraph 6 of the judgment it has been mentioned that: “It is also argued that such financial benefit upon retrospective promotion was granted with the condition that excess amount, if any, paid shall be refunded by the appellants and the appellants have furnished their respective undertakings to the said effect, therefore, they are estopped from challenging the recovery.”

7.13 After considering the judgments in 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]), Syed Abdul Qadir v. State of Bihar as well as Rafiq Masih (supra) and Thomas Daniel v. State of Kerala, AIR 2022 SC 2153, the Apex Court in Jogeswar Sahoo (supra) case passed the following judgment/order dated 04.04.2025: “11. In the case at hand, the appellants were working on the post of Stenographers when the subject illegal payment was made to them. It is not reflected in the record that such payment was made to the appellants on account of any fraud or misrepresentation by them. It seems, when the financial benefit was extended to the appellants by the District Judge, Cuttack, the same was subsequently not approved by the High Court which resulted in the subsequent order of recovery. It is also not in dispute that the payment was made in the year 2017 whereas the recovery was directed in the year 2023. However, in the meanwhile, the appellants have retired in

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the year 2020. It is also an admitted position that the appellants were not afforded any opportunity of hearing before issuing the order of recovery. The appellants having superannuated on a ministerial post of Stenographer were admittedly not holding any gazetted post as such applying the principle enunciated by this Court in the above quoted judgment, the recovery is found unsustainable.

12. For the aforestated, we are of the considered view that the appeal deserves to be allowed. Accordingly, we allow the appeal and set aside the order of the High Court and in consequence the orders dated 12.09.2023 and 08.09.2023 by which the appellants were directed to deposit the excess drawn arrears are set aside.”

7.14 It is fact that the Apex Court in Jogeswar Sahoo (supra) case, has not referred to the judgment of the Apex Court in Jagdev Singh (supra) case (dated 29.7.2016), but, the factual position in Jogeswar Sahoo (supra) case falls under the same factual matrix as Jagdev Singh (supra) i.e. undertaking given by employees at the time of pay fixation to the effect that in the event it was found that excess payment has been given, the same shall be recovered from the employee. Both the judgments in Jagdev Singh (supra) and Jogeswar Sahoo (supra) have been delivered by Benches consisting two Hon’ble Judges. As per judicial precedence, the latest judgment of Apex Court of Benches having equal strength shall prevail. The learned counsel for the respondents has just submitted that the facts and circumstances prevailing in Jogeswar Sahoo (supra) case are distinguishable from those obtaining in the present case. However, this tribunal, after scrutinising the facts in respect of undertakings (which we

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will further discuss in the following section) could agree to accept such verbal assertions without substantiation. 7.15 The learned counsel for the respondents has averred that the present applicants have given undertaking to refund if they have received any excess payment. These Undertakings were taken, as per her assertion, at the time of original pay fixation with effect from 01.01.2006. However, the learned counsel for the applicants has countered this assertion stating that the undertaking pertains to granting of ACP based on such refixation, not for refixation per se, which was carried out earlier. Perusal of records in the OA shows that no such pleadings were taken by the respondents in their counter affidavit. Though only one sample example mentioned in Paragraph 1.4 of the order dated 22.01.2026 in MA No.3792/2024, the same pertains to ACP benefits. For better appreciation, the said paragraph is reproduced below: “1.4 The learned counsel for applicant in the MA submits that the applicants in OA No. 261/2016, who were the employees of the respondents, were asked to give undertakings to the effect that in case of excess payment on account of refixation of pay they shall refund such amount. She refers to one sample undertaking which is placed at page 26 of the MA, which is reproduced below: “With reference to DG: AIR, S-II letter No. A- 26022/02/2012S.ll dated 03.10.2012. I hereby exercise option for fixation of my pay from the date of 2nd ACP Le. 06.02.2008 in the revised pay scale of 6th Pay Commission In PB-2, Rs. 9300shall remain drawing pay in my pre-revised scale of 34800/with GP 4200/-Rs, 4000-6000/- upto 05.02.2008. I also undertake that any excess payment that may be found to have been made as a result of incorrect fixation of pay or any excess payment detected in the light of

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discrepancies noticed subsequently will be refunded by me to the Government either by adjustment against future payments due to me or otherwise.”

7.16 As there is no pleading by the respondents in their counter affidavit in the OA nor are there any fresh documentary evidence produced that the respondents had taken undertaking from the applicants at the time of alleged wrong fixation of their pay scales w.e.f. 01.01.2006, and the sole example pertains to grant of ACP benefits to a particular employee, this Tribunal cannot accept that all the applicants had given undertaking to refund any excess amount received due to pay fixation after the recommendations of 6th CPC, valid from 01.01.2006. 7.17 The learned counsel for the applicants has submitted the compilation of judgments/orders where various Tribunals have disallowed recovery even if such undertakings were given. The following judgements/orders have particularly discussed the applicability of the ratio of judgments of the Apex Court in Jagdev Singh (supra) case:

Rajan Nair vs. Union of India, OA No.180/00312/2020 decided on 06.09.2024 by Erankulam Bench of this Tribunal.

Dushmanta Kumar Bal vs. Union of India and others, OA No.260/00466/2018 decided on 06.12.2023 by Cuttack Bench of this Tribunal.

G.Appukuttan Pillai vs. Deputy Director General, Doordarshan, OA No.180/00891/2017 decided on 24.09.2018 by Ernakulam Bench of this Tribunal.

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C.Raveendran vs. Union of India and ors., OA No.180/01012/2018 decided on 23.09.2022 by Ernakulam Bench of this Tribunal.

R.Ganesan vs. Union of India and others, OA No.543/2020 decided on 13.01.2023 by Chennai Bench of this Tribunal.

7.18 In all these orders of the Coordinate Benches of this Tribunal, the applicability of the ratio of judgments had been analysed and despite undertakings given by the respective employees, the recoveries were not allowed. The said judgments have been upheld by the respective High Courts based on the principle of equity and consideration of hardship to retired employees. It is a fact that the present applicants were in service when they filed the present OA. 7.19 The Apex Court in a recent judgment dated 23.09.2026 in Civil Appeal Nos.8329-8336 of 2016 titled Dr. M.K. Ravi Varma Etc. Etc. vs. National Institute of Technology and ors., 2026 INSC 1080 analysed the contrasting judgments in Chandi Prasad Uniyal (supra), Rafiq Masih (supra) and Thomas Daniel (supra) cases along with Jagdev Singh (supra). It is worthwhile to extract the following paragraphs of said judgment: “11. The reference was ultimately answered by a 3-Judge Bench of this Court in State of Punjab v. Rafiq Masih. While holding that there was no conflict in the views expressed in Sahib Ram (supra) and Shyam Babu (supra) on the one hand and Chandi Prasad Uniyal (supra) on the other, it was emphatically observed as follows:

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“8. In our view, the law laid down in Chandi Prasad Uniyal case : (2012) 8 SCC 417, no way conflicts with the observations made by this Court in the other two cases. In those decisions, directions were issued in exercise of the powers of this Court under Article 142 of the Constitution, but in the subsequent decision this Court under Article 136 of the Constitution, in laying down the law had dismissed the petition of the employee. This Court in a number of cases had battled with tracing the contours of the provision in Articles 136 and 142 of the Constitution of India. Distinctively, although the words employed under the two aforesaid provisions speak of the powers of this Court, the former vest a plenary jurisdiction in the Supreme Court in the matter of entertaining and hearing of appeals by granting special leave against any judgment or order made by a court or tribunal in any cause or matter. The powers are plenary to the extent that they are paramount to the limitations under the specific provisions for appeal contained in the Constitution or other laws. Article 142 of the Constitution of India, on the other hand is a step ahead of the powers envisaged under Article 136 of the Constitution of India. It is the exercise of jurisdiction to pass such enforceable decree or order as is necessary for doing “complete justice” in any cause or matter.” (emphasis ours)

12. What logically follows from a bare reading of the above passage is that Chandi Prasad Uniyal (supra) was held to have declared the law in exercise of this Court’s jurisdiction under Article 136 of the Constitution, which we understand would be binding on all courts under Article 141; whereas Sahib Ram (supra) and Shyam Babu (supra) were held to be decisions where this Court had invoked powers under Article 142 thereof.

13. Despite the line of decisions following Sahib Ram (supra) and Shyam Babu (supra) being held by the 3- Judge Bench to be decisions invoking Article 142 of the Constitution which, according to us, do not have the efficacy of a binding precedent, the coordinate Bench in Rafiq Masih (White Washer) (supra) did not apply the law laid down in Chandi Prasad Uniyal (supra) and preferred to abide by the course of action adopted in Sahib Ram (supra), Shyam Babu (supra) and Syed Abdul Qadir (supra).

14. We have also found that Thomas Daniel (supra) neither considers Chandi Prasad Uniyal (supra) nor the 3-Judge Bench decision in Rafiq Masih (supra).

15. Curiously, not a single precedent has remarked on the applicability of Section 7215 of the Contract Act, 1872; however, without referring to it, we find that the ratio of Chandi Prasad Uniyal (supra) draws inspiration from it.

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16. It is farthest from our mind to cast any shadow of doubt on either of the two decisions of the coordinate Benches in Rafiq Masih (White Washer) (supra) and Thomas Daniel (supra). The above discussion is necessitated only for the purpose of highlighting that the law, perhaps, has not developed on correct lines. Be that as it may, while considering the present appeal, we are not required to be guided by either of the aforesaid two decisions, in view of the stark factual distinction and the able guidance that can be drawn from another subsequent decision of a coordinate Bench of this Court in High Court of Punjab & Haryana v. Jagdev Singh.

17. In Jagdev Singh (supra), the coordinate Bench considered paragraph 18 of Rafiq Masih (White Washer) (supra), extracted above, and explained the legal position as follows: “11. The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.” Liability of person to whom money is paid, or thing delivered, by mistake or under coercion.-A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it.

18. Respondents, as appellants before the Division Bench of the High Court, had placed Exhibit R2(c) which contained an undertaking given by the appellants conveying their willingness to permit recovery of such amounts in the event that the pay fixation was found to be erroneous. It was, thus, contended that the respondents had merely corrected the mistake in accordance with the entitlement of the appellants under the applicable rules.

19. The contention was accepted by the Division Bench in the impugned judgment. While placing reliance on Chandi Prasad Uniyal (supra), it was held as follows: “32. Apex court was considering a batch of cases relating to recovery and re-fixation of pay of teachers in rectification of mistakes occurred while implementing the 5th and 6th pay commission orders. Apex court while upholding the same, held that unjust enrichment cannot be permitted. It is also pertinent to note that petitioners were not required to perform any additional duties on account of the placement as Associate Professors. Admittedly the petitioners have given their undertaking Ext R2(c) expressing their willingness for re- fixation of pay, refund of excess pay etc., as and when any mistake was detected, as in the cases considered by the apex

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court. The case of the petitioners do not come under that of exceptional categories. However we are of the view that fairness in action required that a notice was issued to them, before effecting re-fixation and recovery as well as de-designation.

33. Now that the reasons for re-fixation are already made known to petitioners and their contentions are already in the pleadings before this court, we do not think that issuance of a notice will serve any purpose, especially when we have found that they were not entitled to any benefits as originally granted. Moreover the petitioners approached this court only in 2012, much after the re- fixation of pay and recovery were effected in early 2010. At this stage therefore we are not directing the appellants to undertake the empty formality of issuing notice or opportunity of hearing to petitioners.”

20. It is, therefore, clear that a mistake was committed in extending financial benefits to the appellants; and this was immediately withdrawn upon detection of such mistake. Such recovery of the amounts paid by mistake to the appellants, in view of the undertakings given by them, did not warrant interference by the Single Judge in exercise of writ jurisdiction and the Division Bench appears to be right in its interdiction.”

7.20 In view of the above latest judgment of the Apex Court in Dr. M.K.Ravi Varma (supra) case, the respondents in the instant case are within their rights to recover any excess/irregular amounts from them, which were paid to the present applicants taking undertakings from them that such excess/irregular amount, if determined, shall be refunded by such employees.

8.

Conclusion

8.1 In view of the above analysis, the present OA is disposed off with the following directions:

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(i) The respondents shall examine and scrutinize each of the case pertaining to present applicants and determine whether the applicants have furnished any undertaking at the time of pay-fixation as per the recommendations of the 6th CPC w.e.f. 01.01.2006.

(ii) If any of the applicants had furnished such undertaking, then the respondents are entitled to recover any excess/irregular amount paid to them in pursuance to such initial pay fixation which was subsequently modified and recovery orders issued to recover the overpayments.

(iii) In case of those applicants, who have not furnished such undertaking, shall not recover any such overpayment.

(iv) This exercise shall be completed within eight weeks from the date of receipt of a certified copy of this order.

9. No order as to costs.

10. Pending MAs, if any, shall also stand disposed of.

(Rajveer Singh Verma)

(Dr. Chhabilendra Roul) Member (J)

Member (A)

‘SD’

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