JUDGEMENT Mihir Kumar Jha, J. 1. Heard counsel for the petitioner and counsel for the State. 2. Prayer in this Writ application of the petitioner reads as follows: "That this is an application for issuance of writ in the nature of certiorari for quashing the circular No. 345 dated 27.3.2003 as contained in Annexure-12 by which the Executive Engineer, Minor Irrigation Division, Patna, the respondent no. 6 has been pleased to order for recovery of Rs. 1,14,750/- (Rs. One lac fourteen thousand seven hundred fifty) from the petitioner which have been paid to him excess and for which a recovery has to be made from his salary in sixty (60) installments in which the first instalment will be of Rs. 1,942/- and thereafter in 59 instalment for which the recovery will be at the rate of Rs.1912/- and further for quashing the order no. 247 dated 26.12.2001 vide memo no. 6182 dated 26.12.2001 as contained in Annexure-11 issued under the signature of Joint Secretary, Minor Irrigation, Government of Bihar, Patna, the respondent no. 4 by which he has been pleased to cancel the scale of Assistant Driller and Driller of Rs. 975-1540 to Rs. 1500-2750 on the ground that the order which has been passed by this Honble Court in C.W.J.C. No. 1689/89 and on the basis of this order the scale which has been sanctioned was without the approval and permission of competent authority and Finance Department and that is illegal and wrong and further for issuance of a writ in the nature of Mandamus commanding the respondent to consider the scale of pay of the petitioner of Rs. 335-635 from 3rd Pay Revision and from Rs. 730-1080 as per 4th Pay Revision and from Rs. 1,500-2,750 as per 5th Pay Anamoly Committee as per Executive Engineer, Minor Irrigation Department, Patna by office order vide memo no. 53 dated 7.1.99 as contained in Annexure-10 and further the respondents be directed to pay the petitioner the scale of Rs. 5000-8000 as per Sixth Pay Revision Committee report as given in other department of Assistant Driller of the State of Bihar." 3. Mr. 53 dated 7.1.99 as contained in Annexure-10 and further the respondents be directed to pay the petitioner the scale of Rs. 5000-8000 as per Sixth Pay Revision Committee report as given in other department of Assistant Driller of the State of Bihar." 3. Mr. Ajit Kumar Singh, learned counsel for the petitioner in support of the aforementioned prayer has submitted that the impugned order seeking to cancel the earlier higher pay scale is unsustainable primarily because: (i) No opportunity of show cause was given to the petitioner; (ii) The Executive Engineer who had given such higher pay scale to the petitioner was delegatee under the order of the State Government dated 12.8.1985 (Annexure-17/A) and thus it cannot be said that the earlier higher fixation was made by an incompetent authority; (iii) There being no fraud or mis-representation on the part of the petitioner, the petitioner in any event could not have been so punished by recovery of alleged excess amount. 4. Counsel for the State, on the other and, would submit that the petitioner was first of all given the pay scale by the authority who was never competent to do so and in fact the State Government having noticed such rank illegal order passed by the authority in the year 1999 vide Annexure-10 to this writ application had taken remedial steps within a space of three years and by canceling the order passed by the Executive Engineer and had also subjected him to a departmental proceeding and inflicting punishment for this very misconduct. Counsel for the State had also referred to different pleadings in the counter affidavit to substantiate that none in the department holding the post of Assistant Driller was given such pay scale, inasmuch as, there was prescribed requirement of having ten years experience for being granted such scale and the petitioner admittedly had no such experience when the Executive Engineer had bestowed personal favour on him by giving higher pay scale. Counsel for the State, in fact, would submit that if there was no entitlement of the petitioner for being placed in the higher pay scale there was no requirement for giving any show cause notice as the petitioner could not have given any explanation in defence of such order giving illegal higher scale of pay to him. 5. Counsel for the State, in fact, would submit that if there was no entitlement of the petitioner for being placed in the higher pay scale there was no requirement for giving any show cause notice as the petitioner could not have given any explanation in defence of such order giving illegal higher scale of pay to him. 5. In the opinion of this Court, once the petitioner would make a prayer for writ of mandamus he must show his legal right for grant of such pay scale. It is not in doubt that the petitioner was initially appointed as Work Charge. Helper on 19.6.1971 and thereafter had earned his first promotion on the post of Work Charge Mechanic on 1.3.1979 and subsequently earned his promotion on the post of Assistant Driller on 15.3.1980. The minimum requirement of working experience was therefore not possessed by the petitioner when he came to hold the post of Assistant Driller and such appointment therefore did not confer him any right for being extended benefit of the post of Assistant Driller. Nonetheless, the pay scale of Assistant Driller as per Pay Revision Committees report in the department on the basis of qualification being only matric with I.T.I. was fixed at Rs. 975-1540 and accordingly the Executive Engineer had no business to seek parity of the pay scale of Assistant Driller by following the pay scale of other departments which was never sanctioned in the department of the petitioner for the post of the Assistant Driller in Minor Irrigation Department. The Executive Engineer, had he any confusion about it, he had to go to higher authority including the Finance Department for seeking clarification as to whether pay scale of Assistant Driller of other department could be made applicable in Minor Irrigation Department. That having been not done, the very basis of the petitioner being given higher pay scale of Assistant Driller vide Annexure-10, the order dated 7.1.1999 was wholly without jurisdiction. 6. It has to be also noted here that such practice has been on rise in the different offices of the State Government that every order is to be given some sort of sanctity is being issued under the order of this Court. Here the Executive Engineer has adopted the same novel method by quoting an order of this Court passed in C.W.J.C. No.1689 of 1989 in the impugned order. Here the Executive Engineer has adopted the same novel method by quoting an order of this Court passed in C.W.J.C. No.1689 of 1989 in the impugned order. In the opinion of this Court that order was not applicable to the facts of the case of petitioner inasmuch as the said order had contained no such direction which could have been complied in the case of the petitioner. Obviously, the whole basis of petitioner being granted higher pay scale was absolutely unjustified and thus capable of being looked into and modified by the higher authorities of the department and therefore when this Court would not find any justification in such decision taken by the Government as held and communicated by its Joint Secretary in the Department of Water Resources (Minor Irrigation), whereby and whereunder, such grant of higher pay scale to the petitioner was found to be incorrect/reduced and brought down in the appropriate pay scale of Rs. 975-1540. 7. To this extent Annexure-11 to the writ application is absolutely justified order, but then question would be that if the petitioner by virtue of an order dated 7th January, 1999 was given some benefit, could the same be taken away without giving even show cause notice to him. In the opinion of this Court answer of such question can only be in negative. The principles of natural justice would therefore require giving of a show cause notice to any person who may suffer civil or evil consequences on account of an order and that too which would affect him monetarily by way of recovery of more than Rupees one lac. To that extent reliance placed by learned counsel for the petitioner on the judgment of Division Bench in the case of "Rajendra Prasad V/s. The State of Bihar & Ors." reported in 1994(1) PLJR 769 seems to be apt and appropriate. 8. Submission of learned counsel for the State that since an irresistible conclulsion had already arrived that the petitioner was not entitled for such pay scale and also that the order passed in his favour by the Executive Engineer which had contained a clause for recovery in case of any error found in the garb of such higher pay scale, cannot be accepted for the simple reason that the petitioner was required to be given an affection opportunity to show justification of being granted higher pay scale. It is a different thing that probably the petitioner could not able to sub-stantiate his claim, inasmuch as, the Driller in the Minor Irrigation Department having been given the pay scale of Rs.975-1540 could not have asked for parity in the pay scale of Assistant Driller of other department having different qualification. In fact, for that the petitioner had only a remedy by approaching Anomaly Removal Committee against the report of the Pay Revision Committee as accepted by the State Government. 9. The aspect as to whether such recovery can be made or no, has been gone into by the Full Bench of this Court in the case of Ram Binod Singh V/s. The Bihar State Electricity Board & Ors. reported in 2007(3) PLJR 398 wherein after discussing the precedent of almost all cases applicable including view of the Apex Court in Saheb Rams case reported in 1995 Supplementary (1) SCC 18 had held that in case of unjust enrichment to a Government servant, such recovery could always be ordered and the retired person also could be subjected to such recovery. In this context it would be useful to quote the statement of law as laid down by the Full Bench in Ram Binod Singhs case which reads as follows: "25. In view of aforesaid discussion of relevant judgments cited on behalf of the parties, it is noticed that in the case of Sahib Ram (supra) decided by a Bench of two Honble Judges on 19.9.1994, no recovery was permitted even from a serving employee on the ground that higher pay scale was wrongly given to the concerned employee by wrong construction made by the Principal for which employee cannot be held to be at fault whereas in the case of V. Gangaram V/s. Regional Joint Director (supra) another Bench of two Honble Judges of the Supreme Court presided by the same Senior Judge, on 25.4.1997, permitted recovery of excess payment even from pension where certain increments were found to be wrongly given. The two later judgments also by a Bench of two Honble Judges i.e. in the case of State of Punjab V/s. Devinder Singh (supra) decided on 21.7.1997 and in the case of Union of India V/s. Sujatha Vedachalam (supra) decided on 7.4.2000, excess payment on account of wrong fixation of pay scale and in case of wrong fixaion of pay was permitted to be recovered in a phased manner or in instalments. 26. The relevant provision of the Indian Contract Act, particularly Section 72 cover cases of mistake of fact as well as law and provide for recovery. The principle of restitution in case of unjust enrichment is also an accepted principle for ensuring justice in appropriate case. Hence, in law, the position appears to be clear that there is no legal bar in ordering for recovery from retired employees where they have received money benefits on account of mistake at the ministerial level in the matter of fixation of pay, grant of increments or time bound promotion when the conditions precedent for such promotions were clearly non est. However, it has been correctly submitted on behalf of the petitioners that the theory of simple mistake error to justify recovery will not hold good where the grant did not suffer from patent illegality or perversity so as to affect the Wednesbury principle or the vice of mala fide in law. For example, where two interpretations or a provision were possible and one was consciously approved and adopted by the competent authority meant to be applied generally to all concerned, any error in such decision of the competent authority if corrected at a later stage may be ordered to apply only prospectively. Moreso, if the decision has been followed for many years. In other words, if on reinterpretation or adjudication the earlier view permitting the grant of monetary benefits is found to be by a competent authority and bona fide but wrong, mistaken or erroneous, then ordinarily no recovery should be made unless the excess payment already made is covered by the two exceptions pointed out in the case of Madan Mohan Prasad (supra). But if the grant was by way of undue favour, arbitrary, mala fide, ultra vires and/or void ab initio, recovery of public money should be the normal course. But if the grant was by way of undue favour, arbitrary, mala fide, ultra vires and/or void ab initio, recovery of public money should be the normal course. In such cases of clear disobedience of policy or rules by ministerial action or clear dishonest decision causing undue loss to public money, action against the concerned authority may also be justified to prevent and discourage plunder of public money by sheer disregrad of clear law. The constitutional schemes of rule of law and fairness in public action support recovery in such cases unless law of limitation or waiver etc. are successfully invoked to show that they prevent such a course in the facts of any particular case. 27. Although judgments have been cited at the Bar from both the. sides to highlight when an order or decision is void or voidable and relevant passage on this topic from the book-Administrative Law by H.W.R. Wade and C.G. Forsyth (Seventh Edition) has also been brought to notice of this Court, which runs as hereunder: Void or voidable was a distinction which could formerly be applied without dificulty to the basic distinction between action which was ultra vires and action which was liable to be quashed for error of law on the fact of the record. The distinction no longer survives since the House of Lords declared all error of law to be ultra vires. But formerly an order vitiated merely by error or law on its face was intra vires and within jurisdiction, but liable to be quashed because of the exceptional powers of control which the courts established three centuries ago. Such an order was voidable, being intra vires and valid and effective, unless and until the court quashed it. Although Judges have suggested that these terms were borrowed from the law of contract and unsuited to administrative law, in fact, in their proper application, they are natural and apt. It is not desirable to enter into this controversy in the present matters. In Administrative Law what defects will render the decision wholly incapable of implementation since inception must be left to be decided in the facts and circumstances of each case in accordance with established principles of law. It is not desirable to enter into this controversy in the present matters. In Administrative Law what defects will render the decision wholly incapable of implementation since inception must be left to be decided in the facts and circumstances of each case in accordance with established principles of law. The principle that action which was ultra vires is void and action which was liable to be quashed for other errors is voidable can only serve as a guiding factor in deciding such a vexed issue in the facts of each case. 28. In the result, it is found that the two exceptions pointed out by the Division Bench in the case of Madan Mohan Prasad (supra) are only illustrative in nature and not exhaustive. It is also found that in appropriate facts and situation of a case mistake, clear, plain and simple, leading to wrong grant of increment, time bound promotion or wrong fixation of pay can justify recovery from an employee who has already superannuated. Such recovery is not by virtue of any condition of service so as to warrant that the contract of service must subsist at the time of recovery. Submission to the contrary on behalf of the petitioners is meritless. The harsh effect of recovery, in appropriate case, should be mellowed by providing for reasonable instalments. It is also found that the principle of law laid down in the case of Man Bahadur (supra) was without noticing the earlier Division Bench judgment in the case of Madan Mohan Prasad but nonetheless it suffers from no error and it can be applied in appropriate cases but keeping in view the principles discussed in the preceding paragraphs as to when an error of interpretation by a competent authority may not amount to mistake or error of a mala fide nature and, therefore ipso facto, may not justify recovery of monetary benefits already paid to the concerned employees. Both the aforesaid judgments and other judgments of this Court following them shall stand explained to that extent." 10. In the light of the aforementioned binding precedent of Full Bench of this Court which has also considered the Saheb Rams case (supra) relied by learned counsel for the petitioner, this Court would hold that whether misrepresentation or no misrepresentation once the petitioner fails to prove his entitlement he can always be subjected to recovery. In the light of the aforementioned binding precedent of Full Bench of this Court which has also considered the Saheb Rams case (supra) relied by learned counsel for the petitioner, this Court would hold that whether misrepresentation or no misrepresentation once the petitioner fails to prove his entitlement he can always be subjected to recovery. As a matter of fact, even that Executive Engineer has already stood punished by the Government for bestowing favour to the petitioner by an order of punishment dated 10.3.2004 by way of stoppage of his increments and also an order of censure. This Court would therefore find that the petitioner can definitely be subjected to recovery of the amount for which he was never entitled. 11. All said and done, since the impugned order has been passed wirhout affording an opportunity of hearing, effect of which would be to recover Rs. 1,14,750/-, this Court would find that the petitioner was required to be given show cause notice and/or an opportunity of hearing. 12. Reliance, however, placed by counsel for the petitioner on the judgment of this Court in the case of "Anand Kumar Jha & Anr. V/s. The State of Bihar & Ors." reported in 2003(2) PLJR 172 to contend that promotion of the petitioner should not be disturbed as the same was given by the competent authority on the ground of continuance in service since 20 years, in the facts of this case would not be applicable for the simple reason that such promotion was given in the year 1999 with a rider in the order itself that if the same was found incorrect, recovery from the petitioner could be made. In fact the said order of promotion was also recalled/reviewed within a space of three years. In fact in the case of State of Kamataka v/s. Uma Devi (3) & Ors., reported in 2006 (4) SCC 1 [: 2006(2) PLJR (SC) 363] it has been held that a wrong promotion of another person cannot be a ground for perpetuating the illegality. In fact this aspect has also been gone into by the Full Bench of this Court in the case of Ram Binod Singh (supra) and recovery has been permitted even in cases where the same had been allowed to be given for a long period of time but without there being entitlement for the same. 13. In fact this aspect has also been gone into by the Full Bench of this Court in the case of Ram Binod Singh (supra) and recovery has been permitted even in cases where the same had been allowed to be given for a long period of time but without there being entitlement for the same. 13. That being so, the impugned order as contained in Annexure-11 is quashed and the matter is remitted back to the Secretary, Minor Irrigation Department, Government of Bihar, who is directed to give show cause notice to the petitioner stating therein the ground for such recovery whereafter, the petitioner must file his show cause reply in the next one month and a final order thereafter be passed by the Secretary within one month from filing of such show cause reply by the petitioner. 14. It is made clear that if as a result of reconsideration by the Secretary the petitioner will not be found to liable for refund of any amount, no recovery will be made from him since the same had already remain stayed under the interim order of this Court dated 19.1.2004, but if on the other hand, it is found that the petitioner was liable to refund such amount, the same will be recovered either from salary or from the retirement benefit of the petitioner, of course in easy installments. 15. With the aforesaid observation and direction, this application is allowed to the extent indicated above. There would be however no order as to costs.