The Chief Engineer(General) Public Works Department, The Chief Engineer (Buildings) Public Works Department and The Executive Engineer, Public Works Department vs M. Thanasekaran

D. Murugesan, J.—This appeal raises the question as to whether recovery could be ordered in respect of erroneous payment made to an

employee. The respondent was appointed as Nominal Muster Roll employee under the Control of the Chief Engineer, Public Works Department

during the year 1970. After completion of 10 years of service, his service was regularised as Fitter with effect from 01.01.1991 and thereafter he

was accorded selection grade on completion of 10 years of service in the said post. His scale of pay as Fitter was prescribed as per pay rules at

Rs. 1200-2040/- Thereafter it was revised after the Pay Commission Recommendations to Rs. 4000-6000/- by the proceedings of the Assistant

Executive Engineer, dated 15.07.1996 and arrears due with effect from 01.01.1991 was also extended to the petitioner. However, by

proceedings of the Executive Engineer, Public Works Department, dated 23.10.2002 directed recovery of excess payment of salary (i.e) he is

entitled only to Rs. 3625-4900/- and instead his scale was fixed at Rs. 4000-6000/- the said order was questioned before the Tamil Nadu State

Administrative Tribunal, which was later transferred to this court and converted into one of W.P. No. 27601 of 2005.

The main contention of the employee, namely, the respondent is that there is neither irregularity nor illegality in fixing the pay scale at Rs. 4000-

Rs.6000/- on the basis of the recommendations of the Pay Commission and there was no mistake on his part in drawing the said salary and in such

circumstances, the alleged excess salary cannot be recovered. Further the impugned order was passed even without notice or any opportunity.

Having considered the grievance and also following the judgment of the Hon''ble Supreme Court in Sahib Ram Vs. State of Haryana and Others, ,

the learned single Judge had set aside the impugned order and consequently, quashed the recovery proceedings. The said order is put in issue in

this appeal.

As far as the recovery of excess salary, or excess payment made to an employee, the law is well settled. If the excess payment is made, on the

misrepresentation of the employee concerned, the State Government would certainly be entitled to direct for recovery of such excess payment. On

the other hand, if the excess payment is made by the State even though by mistake, such excess payment cannot be recovered. To support the

above, we may refer to the following judgments in (1) Col. (Retd.) B.J. Akkara Vs. The Govt. of India and Others, , (2) Shyam Babu Verma and

Others Vs. Union of India (UOI) and Others, , (3) Union of India (UOI) and Another Vs. M. Bhaskar and Others, and (4) V. Gangaram Vs.

Regional Joint Director and others, apart from referring to the judgment of the Apex Court referred by the learned single judge.

In view of the above, we find no merit in the appeal as admittedly, the scale of pay was fixed by the appellant themselves and not on the

representation or mis-representation of the employee concerned. Accordingly, the appeal is dismissed. Consequently, connected miscellaneous

petition is closed. No costs.