IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.03.2009 CORAM: THE HONOURABLE MR. JUSTICE D. MURUGESAN AND THE HONOURABLE MR.JUSTICE S. NAGAMUTHU W.A.NO.1302 OF 2006 and W.A.M.P.NO.2 OF 2006 1. The Chief Engineer(General) Public Works DepartmChepauk, Chepauk, Chennai.5 2. The Chief Engineer (Buildings) Public Works Department, Chepauk, Chennai.5 3. The Executive Engineer, Public Works Department, Buildings (C & M ) Division, Collectorate Campus, Kancheepuram. ..Appellants -Vs.- M.Thanasekaran ..Respondent Prayer:- Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 15.2.2006 in W.P.No.27601 of 2005 on the file of this court. Petition presented to this court under article 226 of the Constitution of India to issue a writ of certiorarified mandamus,calling for the records relating to the 3rd respondent proceedings made in Se.Mu.As.No.Ni3/576/2002 dated 23.10.02 and to quash the same to extend all benefits and oher reliefs stated therein. For Appellants : Mr.R.Thirugnanam,Spl. G.P. For Respondent : No appearance https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (Judgment of the Court was delivered by 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. 2. 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 reported in 1995 Supple.(1) S.C.C.18, 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. 3. 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 of mistake, such excess payment cannot be recovered. To support the above, we may refer to the following judgments in (1) Col.B.J.Akkara (Retd) VS Government of India and others reported in (2006) 11 Supreme Court Cases 709, (2) Shyam Babu Verma VS Union of india reported in (1994) 2 SCC 521 : 1994 SCC (L & S) 683:(1994) 27 ATC 121, (3) Union of India Vs M.Bhaskar reported in (1996) 4 SCC 416: 1996 SCC (L&S) 967 and (4) V.Gangaram VS Regional Joint Director reported in (1997) 6 SCC 139: https://hcservices.ecourts.gov.in/hcservices/ 1997 SCC (L&S) 1652 apart from referring to the judgment of the Apex Court referred by the learned single judge. 4. 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. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. pal To 1. The Chief Engineer(General) Public Works DepartmChepauk, Chepauk, Chennai.5 2. The Chief Engineer (Buildings) Public Works Department, Chepauk, Chennai.5 3. The Executive Engineer, Public Works Department, Buildings (C & M ) Division, Collectorate Campus, Kancheepuram. + 1 CC to Government Pleader,SR.NO.8596 W.A.NO. 1302 OF 2006 & Connected WAMP RL(CO) EM/26.3.09 https://hcservices.ecourts.gov.in/hcservices/