- (1.) HIS intra-Court appeal arises out of the judgment of Hon'ble Single Judge dated 27.5.2004 in Writ Petition No. 15313 of 1998 dismissing the appellant's writ petition against the order of recovery, which is being sought to be made from his pension and gratuity on account of excess payment of salary when he was in service.
(2.) WE have heard learned Counsel for the petitioner-appellant as well as learned Standing Counsel for the respondents. It appears that the appellant was appointed on 15.12.1956 as Health Visitor in the pay scale of Rs. 354-550. In the year 1994 the pay scale of Rs. 470-735 was given to the Multipurpose Health Workers and others with effect from 23.7.1981. Consequently, the petitioner-appellant was paid the difference on account of enhancement of the scale by virtue of the aforesaid Government Order. However, the aforesaid Government Order was subsequently set aside and was modified by another Government Order dated 23.5.1995. The petitioner-appellant in the meanwhile retired after attaining the age of superannuation. Now after lapse of several years, respondents by the impugned order dated 19.1.1998 have sought to recover the excess payment of salary made to the petitioner from his pension as well as gratuity. Learned Counsel for the petitioner relying on various judgments of this Court as well as the Apex Court namely, B. N. Singh v. State of U.P. and another, 1979 ALJ 1184; Shyam Babu Verma and another v. Union of India and others, 1994 (2) SCC 521; Gabriel Saver Fernandes and others v. State of Karnataka and others, 1995 Suppl. (1) SCC 149; Mohmood Hasan v. State of U.P., JT 1997 (1) SC 353; State of Karnataka and another v. Mangalore University Non-Teaching Employees' Association and others, 2002 (3) SCC 302, Surya Deo Mishra v. State of U.P., 2006 (1) ADJ 467 (All) (FB): 2006(1) ESC 379 (All) (FB) and Purshottam lal Das and others v. State of Bihar and others, 2006 (4) ESC 452 (SC), vehemently contended that the excess payment made by the State Government cannot be recovered from an employee unless it is found that the excess payment was made on account of misrepresentation or any fraud or misleading act on the part of the employee. It is submitted that the aforesaid benefit of revision of pay scale was granted by the State Government by issuing a Government Order pursuant whereto payment was also made. If the State Government has subsequently recalled or withdrawn the aforesaid G.O., the benefit which has already been extended and granted pursuant to which payment was already made cannot now be recovered.
(3.) ON the other hand, learned Standing Counsel opposing the prayer vehemently contended that since the G.O., itself by which payment was made has been recalled by the State Government, the petitioner has no right to draw the revised pay scale and payment has rightly been sought to recover.;