JUDGMENT Hon’ble Shishir Kumar, J.—The present writ petition has been filed for quashing the order dated 29.4.2000 passed by respondent No. 2, Annexure-8 to the writ petition and the order dated 26.2.1997, Annexure-5 to the writ petition and further prayer is in the nature of the mandamus directing the respondents to refund the amount of Rs. 58,543/- along with 18% interest. 2. The case of the petitioner is that the petitioner was appointed on 1.7.1965 as JTC teacher in Ishwar Sharan Inter College, Allahabad. After one year the petitioner was transferred to the post of Science Demonstrator in the same college. Government has issued an order dated 19.3.1964 for giving advance increment to the Science teachers and since the petitioner who was having the same qualification and was working on the post of Demonstrator was also entitled to get the advance increment as the same was being given to other science teachers, the matter was represented by the Demonstrators and on 21.12.1965 the Government has made applicable the Government Order dated 19.3.1964 and the Demonstrators were also made entitled for the advance increment. By a notification dated 10.3.1971 the State Government made it clear that the Government order dated 19.3.1964 by which the advance increment was accorded to the science teachers was not made applicable to those science teachers who were appointed after 10.3.1971. From the perusal of the aforesaid Government Order it is clear that the teachers who were given appointment after 10.3.71 will not be entitled for the advance increment. But as the petitioner was appointed prior to the cut off date as such the petitioner was entitled and the same was being paid to the petitioner. The petitioner was promoted to the post of Lecturer Biology in the year 1984 and retired from service on 30.6.1996. After retirement in the year 1997 i.e. 26.2.1997 the respondents have raised an objection that the petitioner has received excess amount to the tune of Rs. 58,543/- as advance increment and he was not entitled, therefore, the said amount be recovered from the pensionary benefit of the petitioner. The petitioner made representations to the competent authority that the contention of the respondents is not correct but the amount was being deducted from the pension of the petitioner and no orders were passed by the respondents regarding the representation of the petitioner. The petitioner made representations to the competent authority that the contention of the respondents is not correct but the amount was being deducted from the pension of the petitioner and no orders were passed by the respondents regarding the representation of the petitioner. Then the petitioner has approached this Court by means of Writ Petition No. 21464 of 1997 and this Court vide its order dated 17.2.2000 was pleased to dispose of the writ petition finally to decide the representation of the petitioner dated 10.3.97 within two months from the date of production of certified copy of the order. 3. On the basis of the order passed in the writ petition, the respondents vide its order dated 29.4.2000 has passed an order holding therein that the petitioner was not entitled for six advance increments and the same have been given wrongly and, as such, from 1.7.1967 to 30.6.1990, the amount to the tune of Rs. 58,543/-has been received in excess by the petitioner and the recovery of the said amount was justified. Aggrieved by the aforesaid order the petitioner has filed the present writ petition. 4. Notices were issued and counter and rejoinder affidavits have been filed as such with the consent of the parties, the writ petition is being disposed of finally. It has been submitted on behalf of the petitioner that the petitioner was given benefit on the basis of the G.O. dated 19.3.1964. The Government Order of 1971 is not applicable as a cut off date has been mentioned to the effect that the persons appointed after 10.3.1971 will not be entitled for advance increments as the appointment of the petitioner is of 1.7.1965, therefore, the same will not be applicable in the case of the petitioner. It has further been submitted on behalf of the petitioner that even though some amount has been received by the petitioner in excess prior to passing any order or to recover any excess amount, the respondents have to follow the procedure like show cause notice and opportunity. As no notice or opportunity has been given prior to the order, therefore, the order is bad in law and as, such, has been arbitrarily passed. It has further been submitted on behalf of the petitioner that the total amount has already been deducted from the pension of the petitioner. As no notice or opportunity has been given prior to the order, therefore, the order is bad in law and as, such, has been arbitrarily passed. It has further been submitted on behalf of the petitioner that the total amount has already been deducted from the pension of the petitioner. Reliance has been placed on a judgment of the Apex Court in Gorakhpur University & others v. Dr. Shitla Prasad Nagendra & Others, 2001 (4) ESC 590 (SC) and has referred to para 5 of the said judgment which is reproduced below : “5. We have carefully considered the submissions on behalf of the respective parties before us. The earlier decision pertaining to this very university reported in 1996 (2) ESC 211 (All) (supra) is that of a Division Bench-rendered after considering the principles laid down and also placing reliance upon the decisions of this Court reported in (JT 1994 (6) SC 354 : 1994 (6) SCC 589 ) which, in turn, relied upon earlier decisions in State of Kerala v. M. Padmanabhan Nair, 1985 (1) SCC 429 and AIR 1981 SC 212 (supra). This Court has been repeatedly emphasizing the position that pension and gratuity are no longer matters of any bounty to be distributed by Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest. Withholding of quarters allotted, while in service, even after retirement without vacating the same has been viewed to be not a valid ground to withhold the disbursement of the terminal benefits. Such is the position with reference to amounts due towards Provident Fund, which is rendered immune from attachment and deduction or adjustment as against any other dues from the employee. In the context of this, mere reliance on behalf of the appellant upon yet another decision of a different Division Bench of the very High Court rendered without taking note of any of the earlier decisions of this Court but merely proceeding to decide the issue upon equitable considerations of balancing conflicting claims of respective parties before it does not improve the case of the appellant any further. Reliance place for the appellant University on the decision reported in (JT 2000 Suppl. Reliance place for the appellant University on the decision reported in (JT 2000 Suppl. (1) SC 515) (supra) does not also sound well on the facts and circumstances of this case. It is not clear from the facts relating to the said decision as to whether the person concerned was allowed to remain in occupation on receipt of the normal rent as in the present case. As noticed earlier, the case of the contesting respondent in this case is that the University authorities regularly accepted the rent at normal rates every month from the petitioner till the quarters was vacated and that in spite of request made for the allotment of the said quarters in favour of the son of the respondent, who is in the service of the University, no decision seems to have been taken and communicated though it is now claimed in the Court proceedings that he is not entitled to this type of accommodation. Further, the facts disclosed such as the resolutions of the University resolving to waive penal rent from all Teachers as well as that of the Executive Council dated 18.7.1994 and the actual such waiver made in the case of several others cannot be easily ignored. The lethargy shown by the authorities in not taking any action according to law to enforce their right to recover possession of the quarters from the respondent or fix liability or determine the so-called penal rent after giving prior show-cause notice or any opportunity to him before ever even proceeding to recover the same from the respondent renders the claim for penal rent not only a seriously disputed or contested claim but the University cannot be allowed to recover summarily the alleged dues according to its whims in a vindictive manner by adopting different and discriminatory standards. The facts disclosed also show that it is almost one year after the vacation of the quarter and that too on the basis of certain subsequent orders increasing the rates of penal rent, the applicability of which to the respondent itself was again seriously disputed and to some extent justifiably too, the appellant cannot be held to be entitled to recover by way of adjustment such disputed sums or claims against the pension, gratuity and provident fund amounts indisputably due and unquestionably payable to the respondent before us. The claims of the University cannot be said to be in respect of an admitted or conceded claim or sum due. Therefore, we are of the view that no infirmity or illegality could be said to be vitiated the order, under challenge in this appeal, to call for our interference, apart from the further reason that the disbursements have already been said to have been made in this case as per the decision of the High Court.“ 5. Reliance has also been placed on a Division Bench Judgment of this Court in Dr. Gopal Mishra v. State of U.P. and others, 2004 (2) E.S.C. 791 (All) and has referred to para 20 of the said judgment and has submitted that in view of the Apex Court judgment as there was no misrepresentation on the part of the petitioner or any fraud has been played by the petitioner, the amount so paid to the petitioner by the respondents cannot be recovered. 6. The counter affidavit filed on behalf of the State has not disclosed any reason. Only in para 5 of the counter affidavit it has been stated that the advance increment to science teachers appointed after 10.3.1971 were stopped. The matter was considered by the State Government and vide its Circular dated 25 10.1982 has made it clear that the Government has rejected the demand of Science Demonstrators for advance increment. It has been submitted that as the petitioner was not entitled for the said increment and the same has wrongly been taken by the petitioner, as such, the excess amount paid to the petitioner has been recovered from the pension of the petitioner. 7. I have heard the learned counsel for the petitioner and the Standing Counsel and have perused the record. From the perusal of the record it is clear that initially the petitioner was appointed as Demonstrator as he was qualified for the same and regarding the entitlement of special increment the various representations were sent to the State Government for payment of advance increment to the demonstrators as the same was being paid to the Science teachers because the Demonstrators were having the same qualification and only the designation was changed. The State Government vide its order dated 21.1.1965 has made it clear that the G.O. dated 19.3.1964 will also be applicable in the case of the Demonstrators. The State Government vide its order dated 21.1.1965 has made it clear that the G.O. dated 19.3.1964 will also be applicable in the case of the Demonstrators. In such situation the petitioner was being paid the benefit. It is also clear from the record that no notice or opportunity has been given to the petitioner prior to the deduction of any amount from the pension of the petitioner. It is now well settled that if certain amount has been paid to an employee not on the basis of misrepresentation and fraud by the employee concerned, if the employer has paid some excess amount, the same cannot be recovered. In the present case also the amount alleged to have been paid excess by the respondents has not been paid on the basis of misrepresentation and fraud played by the petitioner, therefore, in view of the well settled principles of law the amount alleged to have been paid in excess to the petitioner cannot be recovered. But it has been brought to the notice of the Court that the amount of Rs. 5,843/- has already been recovered from the pension of the petitioner, the Apex Court in case of Gorakhpur University (supra) has clearly emphasized that “this Court has been repeatedly emphasizing the position that pension and gratuity are no longer matter of any bounty to be distributed by Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest.” It has also been observed by the Apex Court “the appellant cannot be held to be entitled to recovery by way of adjustment such disputed sums or claims against the pension, gratuity and provident fund. It has also been held by the Division Bench of this Court that recovery of excess amount paid to an employee for which the employee was not entitled, as there was no fraud or misrepresentation on the part of the petitioner, he cannot be asked to refund the said amount and the recovery is not permissible. 8. In such circumstances the writ petition is allowed and the amount paid to the petitioner by the respondents in excess as alleged by the respondents cannot be recovered, even too without notice and opportunity. 8. In such circumstances the writ petition is allowed and the amount paid to the petitioner by the respondents in excess as alleged by the respondents cannot be recovered, even too without notice and opportunity. In my view the orders passed by respondent No. 2 dated 26.2.1997, Annexure-5 to the writ petition and the order dated 29.4.2000, Annexure-8 to the writ petition cannot be sustained and the same are hereby quashed. As it has been informed that the amount has already been deducted from the pension of the petitioner, respondent No. 2 is directed to refund the said amount to the tune of Rs. 58,543/- to the petitioner within a period of three months along with simple interest at the rate of Rs. 6% and accordingly respondent No. 2 is further directed to fix the pension of the petitioner without taking into consideration the orders dated 29.4.2000 and 26.2.1997, Annexures-8 and 5 respectively, from the date of production of a certified copy of the order. No order as to costs. Petition Allowed. ———