Judgment:
P.K. Saikia, J.
1. This appeal is directed against the judgment and order dated 29.08.2012, passed by learned single Judge in WP(C) No. 5740/2011, whereby it was held that no adjustment of excess payment can be made from the salary of the petitioner in W.P.(C) No. 5470/2011 (sole respondents in the present appeal), consequently directing the respondents therein (who is the appellant herein) to pay admissible salary to the petitioner in W.P.(C) No. 5470/2011 for the period from October, 2010 to March, 2011.
2. Heard Mr. GN Sahewalla, learned Sr. counsel for the appellants. Also heard Ms. D. Borgohain, learned counsel appearing for the respondent.
3. The brief facts necessary for disposal of the present proceeding as they emerge from the petition in writ proceeding in W.P.(C) No. 5470/2011 are that the petitioner in W.P.(C) No. 5470/2011 is an Inspector (AB) Assam Police. Consequent upon advertisement dated 09.06.2008, inviting offers from the qualified police personnel for induction as Security Officers in various level in Oil and Natural Gas Co-operation Ltd.,(in short, the ONGC) on deputation basis from the period between March, 2009 to March, 2011.
4. It has been stated that in the notice dated 09.06.2008 at Annexure-A to the writ petition, it was stated amongst others that in the event of selection of an Inspector (AB) in Assam Police, he would be posted as Senior Security Officer in ONGC on deputation basis in the scale of Rs. 13750- 18700/-. In pursuance to such notification, the petitioner offered his candidature for the post of Senior Security Officer in ONGC and in due course, he was selected for which he had joined as above on 13.02.2009 and continued to discharge his duty.
5. After joining the ONGC, he also received his salary in the aforesaid time scale of Rs. 13750- 18700/-up to September, 2010. However, his salary was stopped from October, 2010 to March, 2011 on the ground that he was paid salary in the scale far above the scale which he was entitled to. In that connection O.M dated 26.11.2008 and O.M. dated 08.06.2009 was referred to by the ONGC.
6. Those memoranda provide that the officer who is serving the ONGC on deputation basis would get salary in the scale of pay in which he was drawing his salary in the parent department. On detecting such anomalies, in the pay of the petitioner and others, as stated above, the ONGC/respondents stopped payment of salary to the petitioner from October, 2010 to March, 2011, presumably for his drawing salary in excess of what was actually entitled to.
7. However, considering such withholding of salary as illegal and impermissible in law, the petitioner made several representation to the respondent authorities seeking the release of his salary for the period aforesaid which were, however, not responded to by the respondents authority for which the petitioner approached this Court by the way of filling W.P.(C) No. 5470/2011 seeking directions requiring the respondents to release his salary from October, 2010 to March, 2011.
8. The notice of the proceeding was served on the respondents in W.P.(C) No. 5470/2011. The respondents having filed common counter affidavit contended that in view of the O.M. dated 26.08.2008 and O.M. dated 08.06.2009; the petitioner is entitled to the salary which he had drawn in the parent department.
9. Since he was given a pay far higher than the pay he was entitled to, in view of the memorandum aforementioned, the petitioner is duty bound to refund the amount which he had drawn in excess of his actual salary. On the above contentions the respondents prayed for dismissal of the petition preferred by the petitioner.
10. Learned single Judge on hearing the parties allowed the petition with the following observations. The relevant parts of the judgment is reproduced below:-
âAs recorded in the order dated 09.08.20012, the petitioner was paid salary from 14.02. 2009 to September, 2010 in the higher scale of pay as was notified in the aforesaid Annexure-A letter dated 09.06.2008. The respondent corporation paid salary to the petitioner of their own and there is no mistake on the part of the petitioner. Now in the name of adjusting the excess salary drawn by the petitioner, he cannot be deprived of salary from October, 2010 to March, 2011. According to the respondent corporation, the petitioner is entitled to receive salary in the time scale of pay in which he was working in the parent department.
In view of the above, the writ petition is disposed of directing the respondents to pay the admissible salary to the petitioner from October, 2010 to March, 2011 in the time scale of pay applicable in the parent department.â
11. Being aggrieved by the aforesaid order, the respondents/appellants had preferred this appeal contending that the decision, rendered by the learned single Judge is unsustainable in law since it runs counter to the decisions rendered by Apex Court of the Country on the point under consideration and as such, same is liable to be quashed and set aside.
12. To substantiate its claim that the payment made in the excess of the actual salary is liable to be refund by the employee concerned, the appellants have referred us to the decision of the Honble Supreme Court in the case of Chandi Prasad Uniyal and Ors., reported in (2012) 8 SCC 117. In that case regarding the excess payment of Honble Supreme Court held as follows:-
âIt is a matter of concern that the excess payment of public money which is often described as âtaxpayers moneyâ which belongs neither to the officers who have effected overpayment nor to the recipients. It is not understood why 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 reasons like negligence, carelessness, collusion, favourtism, etc. because money in such situation does not belong to the payer or the payee. Situation 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 or right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.â
13. Controverting the above submissions, learned counsel appearing of the respondent/petitioner argues that the decision relied has no application to the case under consideration since both the proceeding are situated differently as far as facts and circumstances are concerned. In the present case, the respondent/petitioner opted to join the ONGC as Senior Security Officer on deputation basis only on the basis of notification dated 09.06.09.
14. The notification dated 09.06.09, among other things, clearly stated that an officer of Assam Police in the rank of Inspector (AB), if selected as Senior Security Officer would be drawing his salary in the scale of Rs. 13750-18750/- and only on such offer, the petitioner opted to join ONGC. Being so, once he joined the aforesaid post, the respondents cannot refused to pay him salary in the aforesaid scale citing O.M which speaks otherwise, more so, when petitioner is no way responsible for the alleged mistake, committed by the respondent authorities.
15. We have considered the rival submissions having regard to the pleaded case of the parties. On making such an exercise, we have found that the petitioner opted to join ONGC in the rank of Senior Security Officer on the basis of information, furnished in the notification dated 09.06.2009. We have also found that said notification amongst other things states that in the event of posting of Inspector (AB) in Assam Police as Senior Security Officer in ONGC, he would be allowed to draw Rs. 13750- 18700/-.
16. Since the offer, made by ONGC in the notification dated 09.06.09 was duly accepted by the petitioner, in our opinion, a valid contract came into existence and the respondents cannot be allowed to backtrack from the same stating that the notification aforementioned had been wrongly issued since it is not in tune with O.M. dated 26.08.2008 and O.M. dated 08.06.2009.
17. It may be stated that under the Law of Contract, a contract may be rescinded by a party thereto or by both the parties on the ground of mistake only under certain eventualities mentioned in the Law of Contract itself. However, in our instant case, none of those eventualities exists to make the contract voidable at the instant of one of the party thereto.
18. That being so, in our considered opinion, the appellants/respondents cannot be allowed to take shelter under the Office Memoranda aforementioned to deprive the petitioner of his salary for the period from October, 2010 to March, 2011, more so, when the petitioner was no way responsible for issuance of such notification in pursuance to which he offered his candidature and got selected to serve the ONGC in the pay scale of Rs. 13750- 18700/-.
19. We may note here that the learned counsel for the petitioner has submitted that the facts and circumstance of the present case are fundamentally different from the facts and circumstances of the case referred to above. On perusal of the decision, aforementioned, in the light of facts and circumstance of the case at hand, we have found reasons to concur with the submissions, advanced by the learned counsel for the petitioner on this count.
20. Resultantly, we see no reasons to interfere with the judgment passed by the learned single Judge.
21. Consequently, this writ appeal is dismissed. No costs.