Judgment :- 1. The petitioner was working as a Additional Head Master in which post he was working till 28.02.2002. Thereafter, he retired from the post of Additional Head Master and in pursuant to the retirement, the petitioner was given pension. 2. The second respondent herein issued the impugned order in Na. Ka. No. 77/A3/2000, dated 31.01.2002 whereby the petitioner has been asked to repay the amount by way of recovery on the ground that the second respondent has been directed by the first respondent in and by his proceedings dated 24.01.2002 with increment in bonus has been wrongly given to the petitioner with effect from 010. 1998. Therefore the second respondent has issued the impugned order based upon the proceeding dated 24.01.2002 of the first respondent. Challenging the said proceedings the petitioner has filed the present writ petition. 3. It is submitted that the learned counsel appearing on behalf of the petitioner that the pension has been fixed and payed to the petitioner not because of the mistake committed by the petitioner. Therefore, when the respondents have paid the amount as pension for no fault of the petitioner an order of recovery can be passed. The learned counsel further submitted that a reading of the impugned order has shown that the petitioner has not been heard. In support of his contention, the learned counsel relied upon the recent judgment of the Hon’ble Supreme Court reported in 2009(1) SC 163 (Syed Abdul Qadir and others vs. State of Bihar and others) and submitted that in a case where excess amount has been paid and the said amount has been paid not because of the misrepresentation on the part of the Teacher concerned then the authorities cannot recover the same after making the payment. 4. On a reading of the said judgment, this Court is of the opinion that the ratio laid down is applicable to the present case on hand. It is not in dispute that the second respondent has fixed the pension and paid the same to the petitioner. It is not as if the petitioner has misrepresented in getting the said amount. Therefore, under those circumstances the impugned order passed by the second respondent in recovering the pension on the ground that the earlier pension has been fixed by mistake cannot be sustained. It is not as if the petitioner has misrepresented in getting the said amount. Therefore, under those circumstances the impugned order passed by the second respondent in recovering the pension on the ground that the earlier pension has been fixed by mistake cannot be sustained. The Hon’ble Supreme Court in the judgment reported in 2009(1) SC 163 (Syed Abdul Qadir and others vs. State of Bihar and others) has held as follows: ………. 26. From the record that has been produced before us, there is not an iota of doubt that officials of the State Government, responsible for issuing Resolution dated 112. 1989, were ignorant of the amended provisions of the first respondent 22-c and it is their inaction, negligence and carelessness which has created all the chaos in the case on hand. Further, until January 1999, the officials of the Education Department of the Government of Bihar were unaware of the amendment in the said rule until the Accountant General, Government of Bihar, on a query being made to him by the Director of Secondary Education who is the head of the Department of the Secondary Education in the State of Bihar, vide his letter dated 08.01.1999, respondent to the said query that the officials of the Education Department came to know of the amendment in first respondent 22-C. That apart, it also appears from the record produced before us that while the Finance Department of the Government of Bihar was in favour of making the amended provisions of first respondent 22-C applicable to the appellants teachers after having come to know that the said rule did not exist and had been substituted, the Department of Human Resource Development, Government of Bihar, wanted to apply the un amended provision to the appellants-teachers so as to make available the benefit of additional increment provided for under first respondent 22-C to its teachers, unaware of the fact that even under first respondent 22-C they were not entitled to the additional increment as they were not discharging duties and responsibilities of greater importance on the promoted post. This further goes on to show that the authorities in the state of Bihar were not even aware of the basic requirement for grant of additional increment and the decision appears to have been taken without proper application of mind. This further goes on to show that the authorities in the state of Bihar were not even aware of the basic requirement for grant of additional increment and the decision appears to have been taken without proper application of mind. Otherwise, there was no reason for the Finance Department to State in the counter affidavit filed before the High Court that any affidavit filed on behalf of the Education Department may be ignored as Finance Department was the competent authority. In this very affidavit, the Finance Department while admitting that the pay fixation by the Education Department was wrong, stated as under:- “….. the fixation of pay under Fundamental Rule 22-C has wrongly been made as it was not in existence. Pay fixation on the basis of a non-existent rule is a bona fide mistake.” 27. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. The relief against recovery is granted by courts not because of any right in the employees, but in equity exercising judicial discretion to relive the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of haryana, 1995 Supp. (1) SCC. 18. Shyam Babu verma vs. Union of India (1994) s SCC 521: Union of India vs. M. Bhaskar, (1996) 4 SCC 416 ; v. Ganga Ram vs. Regional Jt., director, (1997)6 SCC 139 ; Col. B.J. Akkara (Retd.) vs. Government of India & ors. (2006) 11 SCC 709 ; Purshottam lal Das & ors. (1) SCC. 18. Shyam Babu verma vs. Union of India (1994) s SCC 521: Union of India vs. M. Bhaskar, (1996) 4 SCC 416 ; v. Ganga Ram vs. Regional Jt., director, (1997)6 SCC 139 ; Col. B.J. Akkara (Retd.) vs. Government of India & ors. (2006) 11 SCC 709 ; Purshottam lal Das & ors. vs. State of Bihar (2006) 11 SCC 492 ; Punjab National Bank & Ors. Vs. Manjeet singh & Anr., (2006) 8 SCC 647 ’ and Bihar State Electricity Board & Anr. Vs. Bijay Bahadur & Anr., (2001) 10 SCC 99 . 28. Undoubtedly, the excess amount that has been paid to the appellants – teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result or wrong interpretation of the rule that was applicable to them for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made. 5. A reading of the said judgment would show that the same is squarely applicable to the present case on hand. Hence considering the factual and also the legal position mentioned above. The writ petition has to be allowed. Accordingly the same is allowed. However if the respondent decides to refix the pension for the future period it is open to them to do so after affording an opportunity to the petitioner. No costs. Consequently connected Miscellaneous petition is closed.