Judgment :- SATYANARAYANA, J., 1. The DDPI, Udupi District, 1st respondent in W.P.No.27555/2003 has come up in this appeal impugning the order dated 11.2.2005 passed in the said writ petition, wherein recovery of excess payment made to the petitioner pursuant to Annexure-A is upheld with a direction to 1st respondent/appellant herein to confirm the benefit provided under Annexure-A to petitioner and also to refund the recovery, if any, with reference to excess payment made to him. 2. Brief facts leading to this appeal are as under: Respondent herein was working as Assistant Teacher in Durgaparameshwari Higher Primary School, Bantakallu, Udupi Taluk. Since his appointment was found to be in excess of the sanctioned limit, his service was taken out from the said school. However, to accommodate him, he was re-deployed in K.M. Aided Higher Primary School, Karkala Taluk, Udupi District in terms of the order of redeployment. Admittedly, the said redeployment is pursuant to the conditions stipulated under Rule 11 Sub-Rule 6 proviso 3 to Karnataka Educational Institution (Recruitment and Terms and Conditions of Service of Employees in Private Aided Primary and Secondary Educational Institutions) Rules, 1999, which reads as under: “(6) On receipt of the vacancy position, the Government Authority shall without prejudice to initiating action under sub-rule (1) allot through computerized counseling, the retrenched employee on the basis of seniority and after taking into consideration the subject requirement and reservation and roster point, to any other institution where a regular sanctioned vacancy exists and direct the concerned management to issue appointment order to such candidates to report for duty in the said institution. Provided that in all cases where no person is available in the reservation category and roster as per the requirement of the institution, then the senior-most candidate irrespective of reservation and roster shall be allotted. Provided further that no recruitment shall be made by any aided institution, until the list of retrenched teacher are exhausted. Provided also that the retrenched employees so appointed in the new institution will get seniority in the new institution from the date of joining the institution. However, the services rendered in the earlier institution will count for pay, leave and pensionary benefits. Provided also further that the retrenched employee who is allotted to a new institution shall not be entitled to any compensation provided under the Act. However, the services rendered in the earlier institution will count for pay, leave and pensionary benefits. Provided also further that the retrenched employee who is allotted to a new institution shall not be entitled to any compensation provided under the Act. Provided also that no retrenched employees/staff shall be allotted to a minority institution for being appointed against a vacancy. Provided also that in so far as minority institutions are concerned, the competent authority on his own verification or on the report of his subordinate officers finds that there is an excess strength of teachers/staff on account of reasons mentioned in the above rules, shall take action to retrench the excess teachers/staff following the same procedure as specified under these rules. The Competent Authority shall withdraw salary grants in respect of such excess/retrenched staff”. 3. In terms of said provision of law, respondent herein will get seniority in the new institution from the date of joining with prospective effect pursuant to the order of redeployment. His earlier service in previous school will be taken into consideration for the purpose of pay, leave and pensionary benefits only. As such, last pay drawn by him in the previous school is saved for the purpose of fixing his pay in the new school in pursuance of aforesaid proviso referred to supra. 4. When matter stood thus, subsequent to respondent’s redeployment in KM Aided Higher Primary School a Government Order cam to be passed on 21.1.2002, wherein the Government decided to provide one increment to teachers who have put in more than 20 years and have not received any promotion during the said period. In terms of the said G.O. one increment was also provided to respondent herein and that was given effect for the period from March 2002 to September 2002. However, subsequently, after coming to know that the benefit provided under Annexure-A does not enure to the benefit of respondent, the same was withdrawn. Further a sum of Rs.1,609/- paid to him in implementation of Annexure-A, was recovered and one increment granted to him was discontinued. 5. Being aggrieved by the same respondent herein filed writ petition in No.27555/2003 seeking direction to set aside the order dated 22.10.2002 issued by the Block Educational Officer, for recovery of Rs.1609/- paid for the period from March 2002 to September 2002 and stoppage of one increment paid to him pursuant to Annexure-A. 6. 5. Being aggrieved by the same respondent herein filed writ petition in No.27555/2003 seeking direction to set aside the order dated 22.10.2002 issued by the Block Educational Officer, for recovery of Rs.1609/- paid for the period from March 2002 to September 2002 and stoppage of one increment paid to him pursuant to Annexure-A. 6. The said writ petition was allowed by the learned single judge holding that “whatever the scale of pay petitioner was getting earlier shall be the pay scale at the new posting. In that view of the matter, the order at Annexure-D is bad in law, accordingly, it is quashed. It is directed that the benefit of Annexure-A to be restituted to the petitioner and recovery effected if any to be refunded to the petitioner”, which order is challenged by respondent herein on the ground that redeployment of respondent to new school is subject to proviso 3 Sub-Rule 6 of Rule 11 of the Rules which disentitle him to seek additional increment taking his previous service in the earlier school. Therefore, there is error on the part of learned single judge in not looking into said Rule and considering the service of 22 and half years put by him in earlier school is in continuation to the service put in the redeployed place is incorrect. 7. Heard the Counsel for appellants and respondent. On careful perusal of the order impugned it is seen that the learned single judge has proceeded to hold that respondent herein has earned the increment in view of the fact that he has already put in 22 and odd years in the previous school. This is taken into consideration on the premise that rejection of that service would be highly inequitable and it would result in drastic situation in denying additional increment to the respondent herein taking into consideration the pay that is fixed for him in the earlier scale in the reposted institution. It was also observed that the provisions of Rule does not explicitly refer to such exclusion and the refund of same should be taken with liberal interpretation while taking the last drawn pay. The service rendered by him should be taken into consideration for the purpose of providing additional increment as provided under Government Order dated 21.2.2002, Annexure-A to the writ petition. 8. The service rendered by him should be taken into consideration for the purpose of providing additional increment as provided under Government Order dated 21.2.2002, Annexure-A to the writ petition. 8. After giving careful consideration to the observations made by the learned single judge, we are of the considered view that said observation is contrary to Rule and also redeployment order issued in favour of respondent. As could be seen from redeployment order respondent herein would be entitled to his seniority from the date of his entry into new institution which specifically exclude his service in the previous school for the purpose of considering his seniority. Therefore, the same cannot be the basis to calculate the number of years to claim benefit under G.O. dated 21.1.2002. Further, on perusal of G.O. dated 21.1.2002 the same is prospective in nature. Admittedly, in the present school respondent herein is working as teacher from 2001 and onwards. Therefore, if his service is taken into consideration from 2001, it will definitely not be in excess of 20 years as stipulated in G.O. dated 21.1.2002, vide Annexure-A to the writ petition where the benefit of one additional increment is provided to persons who have put in 20 years service without any promotion. In any view of the matter, the number of years of service in the earlier institution is being denied as the service accrued to his benefit, he is not entitled to claim one increment taking the same into consideration. 9. At this juncture so far as the recovery of excess salary paid to respondent the learned Counsel for respondent herein would rely upon the following decisions: 1) Sahib Ram -Vs- State of Haryana & Ors., 1995 (1) SCC 18 2) Registrar, Cooperative Societies Haryana & Ors., -Vs-Israil Khan & Ors., 2010 (1) SCC 440 3) Union of India & Ors., -Vs- Ram Gopalagarwal & Ors., 1998 (2) SCC 589 10. On perusal of the aforesaid judgments, it is seen that in the case of Sahib Ram where upgraded scale was given due to wrong construction by the authority concerned was given without any misrepresentation on the part of employee was ordered to be not to be recovered for the reason that such payment was made without there being misrepresentation on the part of appellant therein. 11. 11. In the case of Registrar, Cooperative Societies Haryana & Ors., the said principle was discussed at paragraph 7 as under: “7. There is no “principle” that any excess payment to employees should not be recovered back by the employer. This Court, in certain cases has merely used its judicial discretion to refuse recovery of excess wrong payments of employments/allowances from employees on the ground of hardship, where the following conditions were fulfilled: “(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.” 12. However, while considering the said case on merits the Apex Court at paragraph 10 has held as under: “10. In these cases, the Rules specifically provided that the employees should be paid a consolidated salary. Therefore without amendment of the Rules, the Managing committees could not have passed a resolution for giving the benefit or regular pay scales that too with retrospective effect to the employees. Further, the Societies did not have the funds to make such payments and illegally diverted the funds made available for disbursal of loans to farmers, for the purpose of making such excess payment to the employees. When the resolution extending such benefit was passed and the amounts earmarked for loans for formers were diverted for making payment to the employees, the Managing Committees as well as the employees were aware that the resolution and consequential payment was contrary to the Rules. There was no question of any wrong calculation or erroneous understanding of the legal position. Most of the employees who received similar relief have refunded or have agreed to refund the excess payment. Making any exception in the case of the respondents would also lead to discrimination.” 13. In the light of the finding of the Apex Court in the aforesaid judgment the recovery ordered by appellant herein in the instant case is just and proper. 14. So also on perusal of the judgment of Apex Court in the matter of Ram Gopalagarwal and others. It is with reference to ration money which was paid to the armed reserved police people. The facts in each of the cases are different. 14. So also on perusal of the judgment of Apex Court in the matter of Ram Gopalagarwal and others. It is with reference to ration money which was paid to the armed reserved police people. The facts in each of the cases are different. However, the ratio laid down by the Apex Court in the matter of Registrar, Cooperative Societies, Haryana & Ors., is closer to the facts on hand. Since the Apex court upheld the recovery of money in the said proceedings, this Court would follow the same and hold that in the instant case also recovery of Rs.1609/-made by appellants from out of the salary of respondent herein for the months of March 2002 to September 2002 is just and proper. Therefore, the order passed by the learned single judge in directing the refund of same and also resumption of providing additional increment to respondent herein is not only opposed to proviso 3 of sub-rule (6) of Rule 11 of the Rules and also the finding of the Apex Court in the matter of Registrar, Cooperative Societies, Haryana & Ors. 15. In the light of the above said decision and as well as Rule governing the pay payable to respondent herein, we do not hesitate to hold that the impugned order passed by learned single judge is required to be set aside. Consequently, the appeal filed by the DDPI, Udupi is allowed. The impugned order dated 11.2.2005 in W.P.No.27555/2003 is set aside. No order as to costs.