JUDGMENT By the Court.—Aggrieved by orders dated 7.9.1996 and 25th August, 1999 passed by the Director Sainik Kalyan Evam Punarwas, Lucknow (respondent No. 3) the petitioner has invoked extraordinary jurisdiction of this Court under Article 226 of the Constitution of India seeking writ of certiorari for quashing the said orders. He has further sought a writ of mandamus commanding the respondents to pay full arrears and salary for the period 1.1.1996 to 31.8.1999 in the revised scale as per Finance Department’s letter dated 5.6.1999, 18.7.1998 and 16.3.1998 and the Government of India letter dated 14.10.1997. A writ of mandamus has also been sought directing respondent No. 1 to re-fix pay of the petitioner correctly with effect from 1.1.1986 and 1.1.1996. 2. The facts in brief as stated in the writ petition are that the petitioner was in Indian Army and retired as Major on 28th October, 1981. He was selected and re-employed on 7th August, 1983 as Zila Sainik Kalyan Evam Punarwas Adhikari which is a Class-I Gazetted Post in the pay scale of Rs.1000-1900 as per Para 525 of Civil Service Regulations (hereinafter referred to as CSR). The appointment letter was issued to the petitioner and thereafter an agreement was executed on 18th August, 1984 between the petitioner and respondents providing terms and conditions of re-employment on the aforesaid post. The petitioner was paid salary as fixed pay instead of regular pay scale. With effect from 1.1.1986 the pay scale of Class I Gazetted Officers was notified as 2350-4300 which was further revised to 8550-14600 with effect from 1.1.1996. The petitioner was serving against a permanent post inasmuch as there were 20 permanent and three temporary posts and the petitioner was at serial No. 1 in the seniority list. The scale was fixed under Para 526 of CSR on the basis of last pay drawn in Army and pension was also fixed. Vide Government Order dated 10th July, 1984 the petitioner and other similarly re-employed officers were sanctioned D.A. at old rates payable in the pay scale sanctioned prior to 1.7.1979. In accordance with agreement and provisions of CSR, as and when the pay was to be revised, the petitioner was entitled for revision of his emoluments along with increments etc. Vide Government Order dated 10th July, 1984 the petitioner and other similarly re-employed officers were sanctioned D.A. at old rates payable in the pay scale sanctioned prior to 1.7.1979. In accordance with agreement and provisions of CSR, as and when the pay was to be revised, the petitioner was entitled for revision of his emoluments along with increments etc. The petitioner made a representation for correct fixation of pay and in reply whereof the State Government vide order dated 13th December, 1989 informed that the amount which is being paid to the petitioner is correct and needs no re-fixation. A copy of the order is on page 65 of the writ petition. Further the State Government issued a Government Order dated 22nd March, 1991 (Annexure-6 to the writ petition) laying down certain additional guidelines for fixation of pay and allowance for re-employed persons. Since in many cases, Government Order dated 22nd March, 1991 was misinterpreted, therefore, a clarification was issued vide G.O. dated 10th July, 1991 (Annexure-7 to the writ petition) and it further directed the authorities to review all such matters, and where wrong payment has been received or given, to stop the same and recover unauthorised payment. It appears that some of the officers challenged the Government Orders dated 22nd March, 1991 and 10th July, 1991 in Writ Petition No. 27431 of 1991, Lt. Col. R.K. Sharma and others v. State of U.P. and others, wherein an interim order was passed on 24th September, 1991 restraining recovery from those petitioners. Thereafter the petitioner also claimed pay fixation under G.O. dated 22nd March, 1991 which was recommended by the District Magistrate. No step was taken by the higher authorities. The said recommendation was founded on revised pay scale and revised emoluments fixed as on 1.1.1986. However, pending decision of the competent authority, the petitioner himself drew his pay as per revised proposed pay and received payment accordingly. Respondent No. 3, however, issued a letter dated 23rd April, 1992 (Annexure-8 to the writ petition) declaring the aforesaid pay of the petitioner illegal and reducing it to the extent of 50% in accordance with Government Order dated 22nd March, 1991 and 10th July, 1991. The petitioner filed writ petition before this Court in the year 1992 which was disposed of vide judgment dated 6th January, 1993 directing the authorities to decide his representation within three months. The petitioner filed writ petition before this Court in the year 1992 which was disposed of vide judgment dated 6th January, 1993 directing the authorities to decide his representation within three months. Thereafter respondent No. 3 passed order dated 7.9.1996 (Annexure-11 to the writ petition) observing that the appointment of the petitioner was on fixed pay basis, therefore, benefit of interim relief is not applicable to him as per Government Orders dated 14th September, 1997 and 19th November, 1997. The petitioner having withdrawn the amount of interim relief himself in violation of said order, the said amount has to be recovered from him. Similarly as per Government Order dated 19.11.1997 ad hoc D.A. was not payable to the petitioner and the amount which has been withdrawn by him was to be deposited in the Government treasury. The petitioner, according to G.O. dated 22nd March, 1991, had received Rs. 1,720/- per month from 1.1.1986 to 1.5.1988 and with effect from 1.6.1988 at the rate of Rs. 1,834/- per month. Vide order dated 10th August, 1999 he was informed that he shall attain the age of superannuation on 31st August, 1999. Thereafter the petitioner made representation for correct fixation of pension and approached this Court in Writ Petition No. 397 of 1995 which was disposed of with the direction to the respondents to decide his representation. Pursuant thereto, respondent No. 2 has passed order dated 25th August, 1999 repeating his earlier decision of fixation of pay of the petitioner. 3. Respondents have filed a counter-affidavit stating that the petitioner was not appointed in the manner he has stated. His appointment was strictly on contract basis with the condition of payment of salary on fixed pay. It was clearly specified in the agreement dated 18.1.1984. Since the petitioner was appointed on fixed pay, he had no right to claim regular pay scale as admissible to the employees appointed in regular pay scale. However, the petitioner withdrew various amounts pursuant to the revision of pay on 1.1.1986 on his own which he was not entitled and therefore orders were issued for recovery of the said amount and direction was issued to the petitioner not to withdraw any amount other than what he was entitled to draw under the agreement. However, the petitioner withdrew various amounts pursuant to the revision of pay on 1.1.1986 on his own which he was not entitled and therefore orders were issued for recovery of the said amount and direction was issued to the petitioner not to withdraw any amount other than what he was entitled to draw under the agreement. Since the petitioner himself was Drawing and Disbursing Authority he received payment by drawing higher salary, therefore, he has to refund the excess amount which he has illegally withdrawn. 4. Learned Counsel for the petitioner vehemently contended that in para 5 of the agreement the word ‘monthly rate of pay’ was mentioned and it was also stated that the pay from time to time payable shall be in accordance with the provisions of the Rules enforced and applicable from time to time, meaning thereby when pay scale is revised and other benefits are extended, the petitioner shall also be entitled for the same. Any contrary view will be in violation to the principle of equal pay for equal work. He placed reliance on Deb Narayan Shyam and others v. State of West Bengal and others, (2005) 2 SCC 286 . He further contended that in any case the amount once received by the petitioner cannot be recovered after a long time and placed reliance on Apex Court judgment Mobarak Hussain v. State of Bihar and others, (2005) 10 SCC 429 . 5. We have heard learned Counsel for the parties and perused the entire record. From perusal of appointment letter issued to the petitioner, which is Annexure-1 to the the writ petition, it is evident that he was appointed on contract basis for a period of one year. Para 3 of the appointment letter specifically provides that during the period of re-employment the salary of the petitioner shall not be fixed on the basis of prescribed pay scale of the post but after deducting amount of pension as payable after retirement from armed forces and thereafter adding Rs. 250/-, a fixed amount shall be paid. The petitioner shall continue to receive pension from the armed forces besides fixed pay and the amount of fixed pay and allowances as admissible shall be paid. 250/-, a fixed amount shall be paid. The petitioner shall continue to receive pension from the armed forces besides fixed pay and the amount of fixed pay and allowances as admissible shall be paid. Para 3 of the appointment letter is reproduced below : **3- iquZfu;qfDr dh vof/k esa bu vf/kdkfj;ksa dk osru Lohd`r inksa ds osrueku ds vk/kkj ij ugha Lohd`r fd;k tk;sxk cfYd fu;qfDr dh vof/k esa vf/kdkfj;ksa dks muds }kjk lkl= lsok ls lsok fuo`fÙk ds le; izkIr osru dh /kujkfk esa ls mudh ldy isaku dh /kujkfk ?kVkdj voks"k esa :i;k 250 dh /kujkfk lfEefyr djrs gq;s fu;r ekfld osru fn;k tk;sxkA ldy isaku esa bu vf/kdkfj;ksa dks Lohd`r isaku ,oa vU; lsok fuo`fÙkd ykHk kkfey gksaxsA bu vf/kdkfj;ksa dh ldy isaku ds ckjs esa tkudkjh egkys[kkdkj mÙkj iznsk }kjk lh/ks dUVªksyj vkQ fMQsUl ,dkmUVl ¼isaku½ bykgkckn ls izkIr dh tk;sxhA bu vf/kdkfj;ksa dks lsuk ls isaku Hkh izkIr gksrh jgsxhA mudksa iquZ;ksftr in ij vuqeU; kq) osru ldy isaku ds ;ksx ij tks Hkh HkÙks ns; gksaxs fn;s tk;saxsA^^ 6. An agreement was executed between the petitioner and the State of U.P. on 18th August 1984 and para 5 thereof reads as under : “5. The scale of pay attached to the post of Zila Sainik Kalyan Evam Punarvas Adhikari to which the party of first part is appointed shall comprise the following monthly rates of pay in successive stages of twelve months’ service : Stages Pay W.e.f. 7th August 83 on date pay fixed on the basis of last pay drawn in Army Rs. 1090.70 He shall from the ............. be granted pay at the rate of rupees ............ per mensem in the aforesaid scale and shall receive pay in the succeeding stages provided for in that scale in accordance with the provisions of the rules from time to time in force and applicable to his case, service in the stages reckoning from the aforesaid date. The pay from time to time payable to him under these presents shall be paid for such time as he shall serve under this agreement and actually perform his duties commencing from the aforesaid date and ceasing on the date of his quitting service in Uttar Pradesh or on the day of his discharge therefrom or on the day of his death if he shall die while in service. PROVIDED that, if at any time the part of the first part proceeds as deputation out of India his pay during the period of his deputation shall be regulated by the ordinary rules regarding deputation.” 7. It is, therefore, evident that the petitioner was entitled for only fixed pay and could not have claimed any benefit of regular time scale. It is not disputed that petitioner himself was Drawing and Disbursing Authority. When pay revision was effected, pursuant to that, he, on his own, re-fixed his emoluments and withdrew the same which was illegal and unauthorised. In order to give certain advantages to the re-employed ex-army personnel, the Government issued an order on 22nd March 1991 but misconstruing the same, re-employed officers withdrew higher amount and as soon as it was detected directions were issued that wherever unauthorised payment has been released that should be stopped immediately and the excess amount withdrawn be recovered. The petitioner was also informed vide letter dated 7th September, 1996 (Annexure-11 to the writ petition) that he was not entitled for such benefits, therefore excess amount he has realised must be refunded. Learned Counsel for the petitioner could not place any material or provision to show that despite specific condition of appointment that benefit admissible to employees appointed in regular time scale shall not be applicable to the petitioner yet he was entitled for such benefits. Learned Counsel for the petitioner, however, sought to interpret para 5 of the agreement insofar as it mentions rate of pay that amounts to pay scale as applicable from time to time. Despite of our repeated perusal of para 5 we are not able to read said clause in the manner the petitioner is trying to construe in order to extend regular time scale to himself. In our view para 5 of the agreement is absolutely clear showing that the petitioner was appointed on fixed pay and on such fixed amount, allowances as available and provided from time to time could be admissible to the petitioner. There is nothing in para 5 of the agreement providing that benefit of regular pay scale will be applicable to the petitioner. Therefore, it cannot be said that the petitioner was discriminated by not giving benefit of pay revision as applied to regular employees from 1.1.1986 to 1.1.1996. There is nothing in para 5 of the agreement providing that benefit of regular pay scale will be applicable to the petitioner. Therefore, it cannot be said that the petitioner was discriminated by not giving benefit of pay revision as applied to regular employees from 1.1.1986 to 1.1.1996. Since the nature of appointment of the petitioner itself was on contract basis and on different terms and conditions, the doctrine of “equal pay for equal work” will not apply. The judgment in Deb Narayan Shyam (supra) relied upon by the petitioner has no application and does not help him. On the contrary our view is fortified from para 15 of the judgment wherein it has been held : "15. The principle of “equal pay for equal work” depends upon the nature of duties performed by a particular category of posts and the qualifications for their recruitment. From the above discussion, it is clear that neither the duties nor the functions are identical nor the recruitment for the posts of Amins and Surveyors is identical as the qualification for recruitment for both the posts is different. A large number of decisions have been cited before us with regard to the principle of “equal pay for equal work” by both sides. We need not deal with the said decisions to overburden this judgment. Suffice is to say that the principle is settled that if the two categories of posts perform the same duties and functions and carry the same qualification, then there should not be any distinction in pay scale between the two categories of posts similarly situated. But when they are different and perform different duties and qualifications for recruitment being different, then they cannot be said to be equated so as to qualify for equal pay for equal work...............” 8. Now coming to second question as to whether order of recovery issued by the respondent is just and proper or whether no recovery can be effected from the petitioner. Now coming to second question as to whether order of recovery issued by the respondent is just and proper or whether no recovery can be effected from the petitioner. No doubt it is true that in some cases it has been held by this Court as well as the Apex Court that if an amount in excess has been paid to the employee who is not guilty of fraud or misrepresentation, after a long time such amount should not be recovered from such employee but that dictum shall not apply in this case for the reason that here the petitioner himself was drawing and disbursing authority and though it is admitted that he sought revision of pay which was recommended by the District Magistrate but was not sanctioned by the competent authority, yet he withdrew excess amount on his own. This was clearly illegal and unauthorised on his part. Here the excess payment has not been made by the State Government or its agency without there being any act or omission on the part of petitioner but here the petitioner himself has drawn excess amount being drawing and disbursing authority. Therefore, the petitioner is himself guilty of unauthorised withdrawal of excess amount which is liable to be refunded. We do not find any error on the face of record in the orders impugned in the writ petition. 9. In the result we do not find any merit in the writ petition. It is accordingly dismissed. No orders as to costs. ————