JUDGMENT By the Court.—Bharat Sanchar Nigam Limited (BSNL) through its Chief Managing Director, New Delhi and three others are before this Court assailing the validity of the order dated 1.10.2015 passed by the Central Administrative Tribunal, Allahabad (the Tribunal) in Original Application No. 1599 of 2012 (Hukum Singh v. Bharat Sanchar Nigam Ltd. through its Chief Managing Director and others), whereby the Tribunal had proceeded to allow the Original Application (O.A.) in view of the recent judgment of Hon’ble Supreme Court in State of Punjab and others v. Rafiq Masih (White Washer), (2015) 4 SCC 334 and quashed the impugned order dated 19.10.2012 by which the respondents had proceeded to recover an amount of Rs. 1,07,505/- from the retiral dues of the respondent No. 1 (Original Applicant) as excess amount had been paid to him. 2. Brief facts giving rise to the writ petition are that the respondent No. 1 was working as Sub Divisional Engineer, which is a Board Level Executive Employee of BSNL and attained the age of superannuation on 31.1.2012. Thereafter, the respondent authorities, at the time of finalisation of his retiral dues, has proceeded to recover the excess salary of Rs. 96,380/-, which was paid to him from 7.7.2003 to 31.1.2012 due to mistake in fixation of his pay-scale and Rs. 11,125/- as excess payment of encashment of earned leave. Therefore, total amount of Rs. 1,07,505/-, which was paid excess to him was deducted from his gratuity. Aggrieved with the said deduction, the respondent No. 1 had proceeded to file O.A. No. 1599 of 2012 with following reliefs: “(A) Order No. E-1/GMTD/BJO/Retirement/Hukum Singh/SDE/36 dated 19.10.2012 passed by SDE (HR/Admn) O/o General Manager, Telecom District (GMTD), Bijnor regarding recovery of excess payment of Rs. 1,07,505/- during period of 7.7.2003 to 31.1.2012 towards excess payment of salary and also recovery of Rs. 11,125/- toward excess payment of earned leave from the retiral benefits of the applicant may be quashed. In wrong fixation of pay-scale of the applicant, there was no fraud or misrepresentation on the part of the applicant and no opportunity of hearing was given to the applicant before deducting the aforesaid amount from his retiral benefits. Above excess payment was determined after the retirement of the applicant. Therefore Section 71 of C.C.S. Pension Rule, 1972 applicable for the aforesaid recovery. B. Direction may be issued to return the amount of Rs. Above excess payment was determined after the retirement of the applicant. Therefore Section 71 of C.C.S. Pension Rule, 1972 applicable for the aforesaid recovery. B. Direction may be issued to return the amount of Rs. 1,07,505/- alongwith interest of 12% per annum to the applicant which was deducted from the pensionary benefits to the applicant. As the respondents wrongly deducted the above amount from the pensionary benefits of the applicant.” 3. The respondents in the original application (petitioners herein) had filed their counter-affidavit and refuted the claim, which had been set out by the respondent No. 1 (original applicants) precisely on the ground that due to clerical mistake, wrong fixation was made and as such the amount of Rs. 1,07,505/- as excess payment had been made since 7.7.2003 to 31.1.2012 and in the light of Rule 71 of C.C.S. Pension Rules, 1972, the department has every right to recover the said excess amount, which had been paid to the petitioner under wrong impression. For ready reference, Rule 71 of C.C.S. Pension Rules of 1972 is quoted as below : “71. Recovery and adjustment of Government dues : (1) It shall be the duty of the Head of Office to ascertain and assess Government dues payable by a Government servant due for retirement. (2) The Government dues as ascertained and assessed by the Head of Office which remain outstanding till the date of retirement of the Government servant, shall be adjusted against the amount of the 1[retirement gratuity] becoming payable. (3) The expression ‘Government dues’ includes - (a) dues pertaining to Government accommodation including arrears of licence fee * [as well as damages for the occupation of the Government accommodation beyond the permissible period after the date of retirement of the allottee)] if any; (b) dues other than those pertaining to Government accommodation, namely, balance of house building or conveyance or any other advance, overpayment of pay and allowances or leave salary and arrears of income tax deductible at source under the Income Tax Act, 1961 (43 of 1961).” 4. Learned counsel for the petitioners has made precise submission that the Tribunal has wrongly applied the judgment rendered by the Apex Court in State of Punjab and others v. Rafiq Masih (White Washer) (Supra), as the said judgment is applicable only in case of Group-C and D employees of the department and the respondent No. 1 was working as Board Level Executive Employee/Officer of the department and as such the said judgment would not be applicable in the present case. 5. Learned counsel for the petitioners has placed reliance in the judgment passed by the Division Bench in Writ Petition No. 32179 of 2007 (Sri J.C. Pandey v. Union of India and others) decided on 4.4.2012, whereby Hon’ble the High Court has held that deduction of excess payment of salary wrongly made to an employee can be recovered and has rightly been recovered from the pensionary benefit under Rule 71 of CCS Pension Rules, 1974. He submits that the Division Bench has proceeded in the matter relying on the judgment rendered in Bhrigu Raj Singh v. State of U.P. and others, (2008) 3 UPLBEC 2428; Budhi Ram v. State of U.P. and others, (2008) 3 UPLBEC 2502 and Shiv Prakash Richaria v. State of U.P. and others, (2008) 3 UPLBEC 2517 : 2008(9) ADJ 411 . 6. Learned counsel for the petitioners has further placed his reliance on the judgment of Hon’ble Apex Court in Chandi Prasad Uniyal and others v. State of Uttarakhand and others, 2012 AIR SCW 4742, wherein Hon’ble the Apex Court had considered that the excess payment made to the employees can be recovered, recovery cannot be limited only to the cases of fraud or misrepresentation. Learned counsel for the petitioners submits that as such the judgment passed by the Tribunal is liable to be set aside. 7. Shri A.K. Singh, learned counsel for respondent No. 1 has opposed the writ petition with vehemence and submitted that the Tribunal in the present facts and circumstances has rightly proceeded to allow the original application strictly as per the observations made by Hon’ble Apex Court in State of Punjab and others v. Rafiq Masih (White Washer) (Supra). 8. 7. Shri A.K. Singh, learned counsel for respondent No. 1 has opposed the writ petition with vehemence and submitted that the Tribunal in the present facts and circumstances has rightly proceeded to allow the original application strictly as per the observations made by Hon’ble Apex Court in State of Punjab and others v. Rafiq Masih (White Washer) (Supra). 8. We have proceeded to examine the record and find that the respondent No. 1 (original applicant) has proceeded in the matter for fixation of his pension and as such the relevant papers were transmitted to the Department of Telecommunication for finalisation and making appropriate order for payment of pension. The Controller of Communication Accounts Officer (Pension), Department of Telecommunication, while scrutinizing the documents and checking the financial calculations, such as pay fixation etc. at different stages found that while fixation of pay of respondent No. 1 on promotion to the post of Junior Telecom Officer JTOI on 7.7.2003 the basic pay was wrongly fixed as Rs. 10,100/- instead of Rs. 9850/- w.e.f. 7.7.2003. It has also come on record that subsequently on 7.7.2010 his pay was fixed as Rs. 26,820/- instead of Rs. 26,810/- w.e.f. 1.7.2010. Therefore, it is apparent that nothing has been brought on record by the petitioners that at any point of time the fixation, which was made in the year 2003 and 2010 was not approved by any competent authority. No ground has been taken while filing the counter-affidavit before the Tribunal to the extent that at any point of time the respondent No. 1 has placed wrong facts or manoeuvred the records in the wrong fixation. No such allegations had ever been taken by the department either before the Tribunal or before this Court. 9. In this background, we have proceeded to peruse the various judgments cited at the Bar. In Shyam Babu Verm v. Union of India, (1994) 2 SCC 521 , a three judge Bench of Hon’ble Apex Court considered a case where higher pay-scale was erroneously paid in the year 1973, the same was sought to be recovered in the year 1984 after a period of eleven years. The Court felt that the sudden deduction of the pay-scale from Rs. 330-560/- to Rs. 330-480/- after several years of implementation of said pay-scale had not only affected financially but even the seniority of the petitioners. The Court felt that the sudden deduction of the pay-scale from Rs. 330-560/- to Rs. 330-480/- after several years of implementation of said pay-scale had not only affected financially but even the seniority of the petitioners. Under such circumstance, this Court had taken the view that it would not be just and proper to recover any excess amount paid. 10. In Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18, Hon’ble Apex Court noticed that the appellants therein did not possess the required educational qualification and consequently would not be entitled to the relaxation but having granted the relaxation and having paid the salary on the revised scales, it was ordered that the excess payment should not be recovered applying the principle of equal pay for equal work. In our view, this judgment is inapplicable to the facts of this case. In Yogeshwar Prasad v. National Institute of Education Planning and Admn., (2010) 14 SCC 323 , Hon’ble Apex Court after referring to the above mentioned judgments took the view that the grant of higher pay could not be recovered unless it was a case of misrepresentation or fraud. On facts, neither misrepresentation nor fraud could be attributed to appellants therein and hence, restrained the recovery of excess amount paid. 11. Reliance has also been placed in the case of Col. B.J. Akkara v. Government of India, (2006) 11 SCC 709 , wherein Hon’ble Apex Court has observed as under: “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 hardship 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 subsequent 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 payment, Courts will not grant relief against recovery. 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 payment, 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.” 12. The same view was also taken by Hon’ble the Apex Court in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 , observing as under : “Undoubtedly, the excess amount that has been paid to the appellants teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned Counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.” 13. Hon’ble the Apex Court in a recent judgment in State of Punjab v. Rafiq Masih (Supra) following the earlier judgments passed by the Apex Court in Syed Abdul Qadir v. State of Bihar (Supra), Shyam Babu Verma v. Union of India (Supra), Sahib Ram Verma v. Union of India (Supra) and Co. B.J. Akkara v. Government of India (Supra) has held that if any excess salary has been paid to the employee and no case of fraud or misrepresentation is alleged then there should be no recovery after the retirement of the employee concerned. Relevant paragraph-12 of the judgment is reproduced as under : “12. B.J. Akkara v. Government of India (Supra) has held that if any excess salary has been paid to the employee and no case of fraud or misrepresentation is alleged then there should be no recovery after the retirement of the employee concerned. Relevant paragraph-12 of the judgment is reproduced as under : “12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group ‘C’ and Group ‘D’ service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.” 14. The judgment of State of Punjab v. Rafiq Masih (Supra) is the recent judgment covering this controversy and holds the field. It is well-settled that if there are two conflicting judgments of the Supreme Court of Benches with equal number of Judges, then the latter will prevail over the earlier. 15. In the present case, we find that earlier fixation was made in the year 2003 and subsequently re-fixation was made in the year 2010, which clearly gives an impression to the Court that twice the competent authority had given the higher pay-scale to the respondent No. 1 and once this has also not been disputed that at any point of time the respondent No. 1 was instrumental in the fixation, therefore, we are not inclined to interfere in the order impugned. The case of the respondent No. 1 falls in the categories given by Hon’ble Apex Court in State of Punjab v. Rafiq Masih (Supra) and as such the petitioners are not entitled for any recovery from the respondent No. 1 but it will be open to them to fix the pension of the respondent No. 1 strictly in consonance with his eligibility. In view of above, the writ petition is dismissed. ———————