- (1.)SUDHIR Agarwal, J. Writ petition has been restored to its original number vide order of date passed on restoration application.
(2.)SINCE counter and rejoinder affidavits have already been exchanged, as requested by learned Counsel for the parties this Court proceeds to hear this matter and dispose of finally under the Rules of the Court.
This writ petition is directed against the order dated 27. 4. 2005 passed by Additional Collector (Finance and Revenue) Chandauli, filed as Annexure 5 to the writ petition, whereby it has directed Tehsildar Chandauli, Sakaldiha and Chakia to calculate the amount paid in excess to various persons working as Seasonal Collection Amins and to recover the same therefrom. It is said that the petitioners were working Seasonal Collection Amins in district Chandauli. They were paid salary applicable to regular Collection Amin by the District Magistrate concerned pursuant to the alleged decision of the Board of Revenue contained in its letter dated 22. 9. 1997 but subsequently it was realized that the said letter was only a proposal sent by the Board of Revenue to the State Government requesting to take a decision whether Seasonal Collection Amins should be paid same salary as applicable to the regular Collection Amins pursuant to revision of pay by the State Government w. e. f. 1. 1. 1996 and, in fact, there was no such decision taken by the State Government or Board of Revenue for giving the said benefits appli cable to regular Collection Amins and the salary at par was wrongly paid to the Seasonal Collection Amins. Accordingly, directions were issued to recover the amount paid in excess to the petitioners and others working as Seasonal Collec tion Amins, pursuant whereto, the impugned order has been issued.

The State Government has filed counter affidavit stating that Seasonal Collection Amins are paid salary and dearness allowance equivalent to initial basic pay as well as dearness allowance applicable to regular collection amins but no increment etc. are payable. In the case in hand, the respondents have paid salary and other benefits to the petitioners working as Seasonal Collection Amins at par with the regular Collection Amins which was neither permissible under the Rules nor could have been done since no such decision was taken either by State Government or Board of Revenue and, hence, the order was issued to recover the amount paid in excess to the petitioners.

(3.)I have heard learned Counsel for the parties and perused the record. Learned Counsel for the petitioners could not show that in law they were rightly paid by the respondents and they were entitled for payment of salary in regular pay scale with all other benefits as applicable to regularly appointed collection amins. How ever, it is contended that the salary and other benefits paid to the petitioners at par with regularly collection amins is not on account of any fraud or misrepresen tation played on the part of the petitioners, but if there is any error or mistake committed by the respondents, they may rectify the same but in any case can not recover the alleged excess amount already paid to the petitioners since the same has already been consumed in catering to the need of themselves and their family members. Moreover, in view of the law laid down in B. N. Singh v. State of U. P. and another, 1979 ALJ 1184; Shyam Babu Verma and another M. Union of India and others, 1994 (2) SCC 521; Gabriel Saver Fernandas and others v. State of Karnataka and others, 1995 Suppl. (1) SCC 14. 9; Mahmood Hasan v. State of U. P. , JT1997 (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: 2006 (1) ESC 379 (FB); Purushottam Lal Das and others v. State of Bihar and others, 2006 (10) SCALE 89, such amount cannot be recovered.
It has further been contended that in any case, no order adverse to the interest of the petitioner could be passed without affording any opportunity and therefore, the impugned order is in utter violation of principles of natural justice. In my view, once learned Counsel for the petitioners could not show that the salary and other benefits which were paid to them could be sustained having sanction of law under any Rules or Regulations applicable to the petitioner, in the circum stances, it cannot be said that salary and other benefits paid to the petitioners were being paid rightly and the same could not have been corrected/rectified by the respondents by passing an appropriate order. If there is any error or mistake committed by the respondents in fixation of pay or payment of salary to its em ployees such mistake can always be rectified and principle of estoppels or waiver etc. shall not apply in such cases. But where simultaneously it is found that an employee has been given certain monetary benefits or salary by the employer on its own or by its own mistake and for which, the employee is not responsible or has not played any fraud or misrepresentation, the amount paid in excess on account of such lapse or mistake of employer should not be recovered from the employee, particularly after a long time. It is worthy to notice that relief, i. e. , restraining recovery of excess amount is granted by Courts not because of any right in the employee but in equity in exercise of judicial discretion, to relieve the employee from the hardship that he would suffer if recovery is implemented. Looking to this aspect of the matter in Col. (Retd.) B. J. Akkara v. Government of India and others, JT 2006 (9) SC 125, the Apex Court has observed: "such relief, restraining recovery back 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 hardships 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 subse quent 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 pay ment, 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. "