Q: I am a government employee. Two years ago, I received an order of promotion, promoting me to a higher post in our department. I began discharging my duties but was surprised to learn that another employee in our department who had put forth the claim that he should have been eligible for that post instead of me had challenged the said order of appointment. I did not take part in the litigation and got on with my work. As a matter of fact, I did not even bother to find out about the issue. For me, the matter was over once and for all.

Later, I heard that the state did not seriously contest the writ petition but submitted to the court that the writ petitioner had been overlooked by way of genuine mistake and as such, the order of appointment was set aside. In the mean time, I have already received salary on the basis of the higher post. Can the state demand refund of the salary paid to me? Will they be allowed to do so under a legal jurisdiction? What legal steps can I take if such demand is made? I am in a dilemma and cannot decide any way out. Please advise.

A.K. Das, Howrah

A: Usually, money received under a ?mistake? is repayable. This legal proposition is based on the ground that unless there is restitution of such payments, the person receiving the money (to which he is otherwise not entitled) will stand ?unjustly enriched?. But in your case, it appears that you have already discharged your duties as an incumbent of the higher post for which you have been paid and as such, the question of your being ?unjustly enriched? does not arise.

On the contrary, it would be unjust on the part of your employer to demand refund of ?excess? payment made to you. Do keep this point in mind that in similar cases, the courts have consistently adopted a fair and equitable approach and held that it would not be just and proper to direct re-payment of salary already paid under mistake, except where it has been shown that the employee himself was in some way fraudulently involved in obtaining the order of promotion.

As far as your case in concerned, it appears that there are no such allegations against you and thus you are entitled to keep the same. If the employer makes a demand for it, which is unlikely, it would be advisable to resist such claim.

Further if you have legitimate grounds to believe that the order of promotion should not have been set aside in the first place, you have a right to appeal against the order passed in the writ petition. In such a case however, you would be required to give adequate reasons as to why you did not contest the writ petition in the first place.