Judgment Barin Ghosh, J. 1. The writ petitioner joined the service of the Board on 13th December, 1968. Upon attaining the age of superannuation, the petitioner retired on 31st January, 2004. At that time, when the petitioner retired, he was a Meter Reader. After his retirement, he was paid 90% of his pension, but he was not paid his gratuity, leave encashment, credit balance his G.P.F. account with statutory interest and the sum due on account of G.S.S. In such view of the matter, the petitioner tiled the present writ petition seeking a direction upon the Board to release the aforementioned lawful dues for the petitioner. During the pendency of the writ petition, the petitioner was paid 90% of his Gratuity, but the remaining 10% of the Gratuity was not paid. In such view of the matter, on 1st March, 2005 I directed production of a cheque in relation to the remaining 10% of the gratuity amount on 9th March, 2005 and also called upon the Board to file a further supplementary affidavit to state, unless final pension payable to the petitioner has been sanctioned in the meantime, why such pension has not yet been sanctioned and paid to the petitioner. 2. The Board did not produce the cheque, nor did it file a further supplementary affidavit. On the contrary the Board filed an application for re-calling of the order dated 1st March, 2005. In that application it is the case of the Board that on 16th July, 1979 the Board in exercise of its powers under Section 79(c) of the Electricity Supply Act, 1948 adopted the Bihar Government Servant (Hindi Examination) Rules, 1968, which were framed by the State Government in exercise of its powers under Article 309 of the Constitution of India, for its employees and officers, Rule 2 of the said rules laid down that it is essential for every Government servant, apart from class-4 employees, who are required to read and write in discharge of their duties, to pass the Hindi Reading and Writing Examination, in Devnagri Script within a year of their appointment, if such Government servant had not passed matriculation examination with Hindi or any examination of Hindi which was recognised by the State Government from time to time to be equivalent to matriculation examination. Rule-3 thereof laid down that it is essential for a Government servant, who has been appointed in such a post, where in discharge of his duties he is required to put up notes and drafts, to pass Hindi Noting and Drafting Examination in Devnagari Script within one year of his appointment. Ruie-7 of the said rules laid down that such employee who has not passed such examination will not be given any promotion or increment, nor be allowed to cross the efficiency bar till such time he has passed the required Hindi examination and Rule-8 thereof laid down that stoppage of increment shall have no cumulative effect. It is the case of the Board in the said application that the petitioner, having not passed such examination, was not entitled to increments, but the same were given to the petitioner by mistake and accordingly payments made in relation thereto are recoverable. In addition to that, it has been stated that in view of some mistake committed sometimes in 1971 followed by the some more mistakes committed from 1974 until 2003, the petitioner had been paid more than what he was entitled to and accordingly certain amount is also recoverable from the petitioner and those have to be recovered from the balance dues of the petitioner. That appears to be the reason for not releasing the balance dues of the petitioner. In paragraph-4 of the said application it has been specifically stated that the decision to adopt the said rules by the Board was made applicable from the date of issuance of the resolution dated 16th July, 1979. In Paragraph-11 of the said application it has been stated that the petitioner was required to pass matriculation examination with Hindi or the Hindi Reading and Writing Examination, but no information was available in that regard in his Service Book and despite letters having been written on 20th September, 2004 and 8th January, 2005, the petitioner did not convey to the Board that the petitioner has passed either the matriculation examination with Hindi or the Hindi Reading and Writing Examination. 3. 3. The petitioner has filed a counter to the said application and with that he has produced a copy of a letter dated 4th March, 2005 written by him in reply to the letters of the Board dated 20th September, 2004 and 8th January, 2005 enclosing therewith his matriculation examination certificate, a copy whereof has also been annexed to the said counter, which suggests that the petitioner passed matriculation examination with Modern Hindi language in the year 1960. This letter was sent under Registered Post. In any event, it is not possible to comprehend that the petitioner, who passed matriculation examination in 1960 and his date of birth has been mentioned in the certificate in relation thereto, which was the one and the only valid document relating to proof of age of the petitioner, was. hot filed at the time of his entering into the services on 13th December, 1968. The petitioner has been retired on the basis of his date of his birth as recorded in the certificate. In such circumstances, the contention that the petitioner was paid his increments after he reached the efficiency bar without passing the appropriate examination and accordingly by mistake he was paid in excess is a boggy and has no substance at all. 4. Be that as it may, Rules 7 and 8 of the said rules have been considered by the Supreme Court in the case of Bihar State Electricity Board and Another vs. Bijay Bhadur and Another, reported in (2000)10 S.C.C. 1999. In that case, it was the contention of the Board that the said rules became part of the service conditions of the employees of the Board and accordingly question of there being any entitlement de hors the same does not and cannot arise. This contention was rejected by the Supreme Court as it appears from paragraphs-7 and 8 of the report on two principles. Firstly, the Rule-7 provided that there shall be no increment, nor any promotion, but in that case, the board wanted to withdraw only the increments, but not the promotions. The Supreme Court held that was impermissible since dual standards are not only non-acceptable but ought to be avoided more so by reason of the factum of the Board being an authority within the meaning of Article-12 of the Constitution. The Supreme Court held that was impermissible since dual standards are not only non-acceptable but ought to be avoided more so by reason of the factum of the Board being an authority within the meaning of Article-12 of the Constitution. The second reason was that the deemed incorporation in the terms and conditions of service of the said rules is also not acceptable for unilateral change of terms cannot he had. The Supreme Court observed that there is no documentary evidence available on record that an intimation to the staff had been given before incorporation of those rules in the service conditions and in the absence thereof, affording any credence to the submission on this score does not arise. At the same time in paragraph-10 of the report, the Supreme Court held that the said order is restricted to the facts of that case with a clarification that Rule-8 will operate on its own and the Board will be at liberty to take appropriate steps in accordance with law except however in the case or cases which has/have attained finality. In other words, the Supreme Court held that the said Rules will apply in case of those employees who joined the services of the Board subsequent to the adoption of the said Rules i.e. 16th July, 1979; and as aforesaid in the said application it is the specific contention of the Board that the said resolution was made effective from the date thereof and as such whoever has joined after, to his service conditions the said Rules stand attached, but not to those who had joined prior to adoption of the said rules, unless they have been told to that effect. There is no evidence that the petitioner was told to that effect while he was in service. 5. Be that as it may, having regard to the facts of this case, as discussed above, in any event, the petitioner had the requisite qualification to have his increments and as such the efficiency bar did not apply to him even in terms of the said rules and on the basis thereof no increment due to the petitioner could be stopped. 6. The learned Counsel for the Board cited a Judgment of the Supreme Court in the case of V. Gangaram vs. Regional Joint Director and Ors. 6. The learned Counsel for the Board cited a Judgment of the Supreme Court in the case of V. Gangaram vs. Regional Joint Director and Ors. reported in A.I.R. 1997 S.C. 2276 for the proposition that if by mistake anything has been paid to an employee, the same is recoverable. In that case, the writ petitioner was entitled to two increments but he was given, by applying wrong principles, four increments. From the Judgment it does not appear when the mistake was detected and when steps were taken to recover excess payment made for granting two additional increments, but the Court held "since the department itself has adopted the above approach, we direct that arrears paid prior to 1985 are not to be recover and excess amount from 1985 is liable to be recovered from the pension payable to the appellant". The Court, therefore, held that till such time the mistake was not detected and the authorities proceeded on the basis that whatever is being paid is the entitlement of the employee, payments so made, even if made by mistake, cannot be recovered. In the instant case, sometime before filing of the said application, the mistake alleged to have been committed since 1971 was detected. At that time the petitioner was hot in service. Therefore, until such time the mistake was detected, the Board proceeded on the basis that whatever is being paid to the petitioner, he was entitle to the same. Nothing further was paid to the petitioner after detection of the mistake, as the petitioner retired prior to detection of the mistake. Accordingly, in terms of the Principles laid down by the Supreme Court, in the said Judgment, nothing is recoverable from the petitioner. 7. The learned Counsel for the Board also cited a Judgment of the Supreme Court in the case of Union of India and Others vs. Sujata Vedachalam and Another, reported in (2000)9 S.C.C. page 187. This Judgment is based on the Judgment of the Supreme Court in the case of Comptroller & Auditor General of India vs. Farid Sattar, reported in (2000)4 S.C.C. 13 . The principles enunciated in the said Judgments have no application to the facts of this case. In those cases, transfers were sought for by the employees and those were accorded. This Judgment is based on the Judgment of the Supreme Court in the case of Comptroller & Auditor General of India vs. Farid Sattar, reported in (2000)4 S.C.C. 13 . The principles enunciated in the said Judgments have no application to the facts of this case. In those cases, transfers were sought for by the employees and those were accorded. At the time of according such transfers it was stipulated that the transferred posts would be lower posts and the transferees would be treated in such post, at the lowest grade as direct recruits, but after the transfers were effected, taking note of the fact that the employees, prior to their transfers, were posted in higher posts, their pay was not fixed at the lowest grade as direct recruits, but at the higher scales commensurate with the scales which they were enjoying before their transfers. The question was whether fundamental Rule 22(i)(a)(2) would save the situation and the employee would be entitled to such higher fixation of pay. The Court held that when the transfers were accepted on certain terms, the fundamental rule contained in the said rule will not give pay protection to the concerned employees. 8. There is no dispute that the petitioner was never a self drawing officer. He had nothing to do with either fixation of his pay or fixation of his increment or to determine from when he would be entitled to what pay. He was paid his salaries by his employer. There is not one single whisper in any part of the said application that in the matter of commitment of the alleged mistake from 1971 until 2003 the petitioner had any role to play. 9. In Sahib Ram vs. The State of Haryana and Others, reported in 1995 Suppi. (1) S.C.C. 18, the Court held that when the employee had no role to play in the matter of revision of his pay and when there was no misrepresentation by him on the basis whereof his pay had been fixed in the higher scale, it would not be permissible to recover the amounts paid to him on the basis of the fixation made by his higher authorities but such mistake may be rectified and the rectification can be given effect to prospectively. 10. In other words, as was held by the Supreme Court in V. Gangaram vs. Regional Joint Director & Ors, (supra). 10. In other words, as was held by the Supreme Court in V. Gangaram vs. Regional Joint Director & Ors, (supra). so was held by the Supreme Court in Sahib Ram vs. The State of Haryana and Another (supra) that unless there is a contribution by the employee in the matter of fixation of a higher pay, payments made to the employee cannot be recovered for the period interior to the detection of the mistake committed in fixing such pay. 11. This Judgment of the Supreme Court in Sahib Ram vs. The State of Haryana and Another (supra) has been approved by the Supreme Court in the case of Bihar State Electricity Board and Another vs. Bijay Bhadur and Another(supra). 12. Inasmuch as the alleged mistakes were not detected during the time the petitioner was in service it should be deemed that when the petitioner was in service he had been paid to what he was otherwise lawfully entitled to and inasmuch as it is nobodys case that the petitioner contributed in any way in making the alleged mistakes in fixation of the pay of the petitioner and such mistake having been detected subsequent to the petitioner retiring, the question of recovery of the same does not arise. This appears to be also the view of the Supreme Court as appears from its decision delivered in Union of India vs. Indian Railways Staff Association and Ors., reported in (1995)31 Administrative Tribunals Cases 518. In that case a decision was rendered by the Full Bench of the Central Administration Tribunal in 1991 and by reason thereof the employees became entitled to something more than to what they were otherwise entitle to. This decision of the Tribunal was the subject matter of several special leave petitions. One of such I petitions was considered as the main petition, which was rejected summarily in 1991 without giving any reasons. Thereafter some other special leave petition against the same decision of the Central Administrative Tribunal came up for consideration of a Bench of Supreme Court comprising of two Hon ble Judges and by a Judgment rendered by the said Bench, the views of the Central Administrative Tribunal were not approved. As a result, a review petition was filed in respect of the first S.L.P, which was rejected summarily, but the review petition was also rejected. Thereafter an interlocutory application was failed. As a result, a review petition was filed in respect of the first S.L.P, which was rejected summarily, but the review petition was also rejected. Thereafter an interlocutory application was failed. The Court felt that the Full Bench decision of the Tribunal required rectification in the light of the decision of the Supreme Court as was rendered by the Bench comprising of two Hon ble Judges and since the review petition was dismissed without noticing the said decision, the said dismissal did not come in its way for taking the decision as required. The Court corrected the view of the Tribunal, but at the same time held that though recovery may be made on the basis of the pronouncement that the employees were entitle to revision with effect from 1st April, 1987 and not from 1st January, 1980, but no such recovery can be made from those employees who have already retired from service, for the correction was made only after the employees had retired. 13. It, thus, appears to me that the principle of law on the subject is that recovery can be made if the beneficiary of excess payment had anything to do with such excess payment, and if not, only from the date the mistake is corrected, he would be disentitled to receive more than what he was otherwise entitled to. There would be no recovery of the excess paid before the mistake was detected. If a person has retired before the mistake is detected, question of recovery from him anything paid in excess by mistake would not arise. That is so, for although a contract of employment is a contract and though the Contract Act, by Section 72, provides for recovery of money paid by mistake. but having regard to the relationship of the master and servant, when ever any salary is paid by the master to its employee, there is a representation by the master to the servant that the servant is entitle to such salary, though the same is more than what has been provided in the contract and accordingly, there is no payment by mistake. Since an employment in the Government or in a public authority is not an ordinary employment, it is permissible to hold out that the employee is entitle to, in terms of the contract, the salary to which he is entitled to and to pay to him the same since such holding out. Anything paid to him in excess, prior to such holding out, having been paid by making a representation that he is entitled to the same cannot be recovered from him, though the same may be recovered from the person who is responsible for making such representation. 14. The last Judgment cited by the learned Counsel for the Board is the Judgment of the Supreme Court in the case of State of Punjab vs. Devinder Singh, reported in (1998)9 S.C.C. 595 , where it was contended that the daily wage Ledger-Keepers were carrying on the work of regular Ledger-Keepers and accordingly they are entitled to get the same salary, which is being paid to regular Ledger-Keepers on the principle of equal pay for equal work. The Supreme Court held that since there is no dispute that the daily wage Ledger- Keepers were doing the same work as that of regular Ledger-Keepers, the daily wage Ledger-Keepers were entitled to, on the principle of equal pay for equal work, the basic minimum salary payable to the regular Ledger-Keepers and not the time scale available to the regular Ledger-Keepers, as was directed by the High Court and accordingly, directed recovery. The facts of this case will demonstrate that no payment was made to the daily wage Ledger-Keepers by mistake. They were paid at the rate as was applicable. They came to the Court and contended that since they were doing the same work they should be paid at the same rate. The High Court allowed their prayer and in consequence of the order of the High Court they became entitled to receive something more than what was being paid to them. The Supreme Court said that they were entitled to more than what they were being paid, but not to the extent as was directed by the High Court and accordingly directed recovery. The Supreme Court said that they were entitled to more than what they were being paid, but not to the extent as was directed by the High Court and accordingly directed recovery. There cannot be any dispute that if on the basis of an order of the Court someone receives some thing more than his entitlement, the moment the order is set aside or modified by the superior Court, it is well within the competence of the superior Court to direct what should be done to such benefit. 15. In those circumstances, the writ petition is allowed and the said application is dismissed and the decision to recover alleged excess payment made on the basis of alleged mistake is quashed with a direction upon the respondent Board to release the remaining terminal/pensionary dues of the petitioner as quickly as possible but not later than 12 weeks from the date of service of a copy of the order upon the Board. 16. This disposes of the writ petition as well as the said application. There shall be no order as to costs.