ORDER : Rajiv Sharma, J. - Petitioner was appointed as Junior Engineer on 1.6.1973. He was drawing pay of 3,400/- as on 31.12.1995. On revision of pay scales, his pay was revised in the pay scale of 7500-13700 as on 1.1.1996 and was fixed at 10,350/-. One Sh. Hans Raj, who was junior to the petitioner and his pay was fixed at 3200/- as on 31.12.1995, was given higher pay of 10,700/- as on 1.1.1996. Petitioner made a detailed representation seeking stepping up of his pay at par with Sh. Hans Raj. The same was allowed on 1.10.1999 and the petitioner's pay was fixed at 10,700/- as on 1.1.1996. Petitioner had to superannuate on 31.7.2009 and at the time of vetting of service record, certain queries were raised by the Accounts Officer. Petitioner filed reply to the same on 21.7.2009 vide Annexure P-4. However, the fact of the matter is that, petitioner's pay was re-fixed at 10,350/- as on 1.1.1996 vide order dated 24.4.2010. Petitioner approached this Court by filing CWP No.2863/2010. It was decided on 24.7.2010. Letter dated 24.4.2010 was quashed and set aside by this Court. Thereafter, petitioner was served with a notice on 20.8.2010, to which he filed detailed reply on 31.8.2010. His case was rejected afresh on 16.9.2010. Petitioner preferred writ petition bearing CWP No. 7095/2010 before this Court and the same was decided on 25.5.2011. Annexure PL was quashed. Thereafter, fresh decision has been taken by the respondent-Board on 20.8.2011 whereby case of the petitioner seeking stepping up of his pay at par with Sh. Hans Raj has been rejected. 2. Mr. M.L. Sharma has strenuously argued that his client has neither misled nor misrepresented the authorities at the time when his pay was stepped up to 10,700/- on 1.10.1999. He further argued that case of the petitioner was squarely covered by the 2nd proviso to Regulation 8 of the H.P.S.E.B. (Revised Pay Scale) Regulations, 1998. He then argued that case of the petitioner was for stepping up of his pay vis-a-vis his junior. 3. Ms. Anjula Khajuria has supported order dated 20.8.2011. According to her, petitioner had given his option with effect from 1.1.1996 and Sh. Hans Raj had given his option from 31.12.1995, thus, the petitioner was not entitled to stepping up. 4. I have heard the learned counsel for the parties and have perused the pleased carefully. 5. 3. Ms. Anjula Khajuria has supported order dated 20.8.2011. According to her, petitioner had given his option with effect from 1.1.1996 and Sh. Hans Raj had given his option from 31.12.1995, thus, the petitioner was not entitled to stepping up. 4. I have heard the learned counsel for the parties and have perused the pleased carefully. 5. It is not denied that the Sh. Hans Raj was junior to the petitioner. His basic pay was 3,200/- as on 31.12.1995 and the pay of the petitioner was 3,400/-. However, at the time of revision of pay scales, petitioner's salary was fixed at 10,350/- and that of Sh. Hans Raj was fixed at 10,700/-. The revision of pay scales has taken place as per second provision to Regulation 8 of the H.P.S.E.B. (Revision of Pay Scale) Regulations, 1998, which has come into force with effect from 1.1.1996. Second proviso to regulation 8 reads thus: "provided further that in cases other than those covered by the preceding proviso, the next increment of a Board employee whose pay is fixed on the first day of January, 1996 at the same stage as the one fixed for another Board employee, junior to him in the same cadre and drawing pay at lower stage than his pay in the existing scale, shall be granted on the same date as admissible to his junior, if the date of increment of the junior happens to be earlier." 6. Petitioner made representation in view of this regulation and the same was accepted on 1.10.1999 and his pay was stepped up to 10,700/-. It is only when the petitioner was at the verge of retirement that certain queries were raised, to which the petitioner filed reply on 21.7.2009. The competent authority without looking into the Regulations and taking into consideration that it was a simple case of stepping up, rejected the case of the petitioner and his pay was re-fixed at 10,300/- with effect from 1.1.1996 vide Annexure P-6 dated 24.4.2010. The same has been reiterated by the respondents, despite the directions issued by this Court in CWP Nos.2863/2010 and 7095/2010. Case of the petitioner was covered in view of the language employed in regulation 8, as quoted hereinabove, for stepping up of his pay vis-a-vis his junior. His case was also recommended by the Senior Executive Engineer on 23.7.2009. The same has been reiterated by the respondents, despite the directions issued by this Court in CWP Nos.2863/2010 and 7095/2010. Case of the petitioner was covered in view of the language employed in regulation 8, as quoted hereinabove, for stepping up of his pay vis-a-vis his junior. His case was also recommended by the Senior Executive Engineer on 23.7.2009. The Regulations framed by the respondent-Board has not been taken into consideration by any of the competent authority while dealing with the matter in depth. 7. Ms. Anjula Khajuria has drawn the attention of the Court to the option exercised by the petitioner on 27.5.1998 vide Annexure RA-VII. This has happened in the year 1998. There cannot be any estoppel against the fundamental and legal rights. Petitioner has right to opt for the same pay scale, which has been given to his junior, namely, Sh. Hans Raj. 8. The Apex Court in Nar Singh Pal v. Union of India and others, (2000) 3 SCC 588 have held that there cannot be any waiver or estoppel against the fundamental rights. Their Lordships have held as under: "13. The Tribunal as also the High Court, both appear to have been moved by the fact that the appellant had encashed the cheque through which retrenchement compensation was paid to him. They intended to say that once retrenchement compensation was accepted by the appellant, the chapter stands closed and it is no longer open to the appellant to challenge his retrenchement. Thus, we are constrained to observe, was wholly erroneous and was not the correct approach. The appellant was a casual labour who had attained the 'temporary' status after having put in ten years' of service. Like any other employee, he had to sustain himself, or may be, his family members on the wages he got. On the termination of his services, there was no hope left for payment of salary in future. The retrenchement compensation paid to him, which was only a meagre amount of 6,350/-. was utilised by him to sustain himself. This does not mean that he had surrendered all his constitutional rights in favour of the respondents. Fundamental Rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any esstoppel against the exercise of Fundamental Rights available under the Constitution. was utilised by him to sustain himself. This does not mean that he had surrendered all his constitutional rights in favour of the respondents. Fundamental Rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any esstoppel against the exercise of Fundamental Rights available under the Constitution. As pointed out earlier, the termination of the appellant from service was punitive in nature and was in violation of the principles of natural justice and his constitutional rights. Such an order cannot be sustained." 9. As far as case of Sh. Hans Raj is concerned, he has given his option with effect from 31.12.1995 and on the basis of H.P.S.E.B. (Revised Pay Scale) Regulations, 1998. It is true that the petitioner had given his option for revised pay scale with effect from 1.1.1996 vide Annexure RA-VIII on 27.5.1998 but has never given up his claim for stepping up of his salary vis-a-vis Sh. Hans Raj, whose basic pay was 3,200/- as on 31.12.1995 and that of the petitioner was 3,400/- on the same date, i.e. 31.12.1995. Simple case of the petitioner was for stepping up vis-a-vis his junior. It is settled law by now that the junior cannot draw higher salary than senior. 10. This question is no more res integra in view of the definitive law laid down by their Lordships of the Hon'ble Supreme Court in Er. Gurcharan Singh Grewal and another v. Punjab State Electricity Board and others, 2009 (1) Scale 535 . Their Lordships have held as under: "17. Something may be said with regard to Mr. Chhabra's submissions about the difference in increment in the scales which the appellant No.1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be said lesser salary than his junior. In such circumstances, even if, there was a difference in the incremental benefits in the scale given to the appellant No.1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of the appellant No.1 was also stepped up to that of Shri Shori, as appears to have been done in the case of the appellant No.2" 11. The matter is required to be considered from another angle. The matter is required to be considered from another angle. Petitioner had been granted the stepping up by the respondent-Board by taking a conscious decision on 1.10.1999. Thereafter, he was promoted to the post of Assistant Engineer on 28.2.2005. He was further promoted as Senior Executive Engineer on 29.8.2008. He superannuated on 31.7.2009. Decision to reduce his pay has been taken after the petitioner has retired on 24.4.2010. This order was harsh, oppressive and unjustified. The petitioner has neither misled nor misrepresented the authorities at the time when the decision was taken on 1.10.1999 to grant him the benefit of stepping up. 12. Their Lordships of the Hon'ble Supreme Court in Syed Abdul Qadir and others v. State of Bihar and others, (2009) 3 SCC 475 have culled out the following principles governing the circumstances in which the excess amount cannot be recovered by the employer: "55. 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 FR. 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 unamended provision to the appellants-teachers so as to make available the benefit of additional increment provided for under FR.22-C to its teachers, unaware of the fact that even under FR.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. 56. 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. 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 nonexistent rule is a bona fide mistake." 57. 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. 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve 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 v. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, [1994] 2 SCC 521; Union of India v. M. Bhaskar, [1996] 4 SCC 416; V. Ganga Ram v. Regional Jt., Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] v. Government of India & Ors. (2006) 11 SCC 709 ; Purshottam Lal Das & Ors., v. State of Bihar, [2006] 11 SCC 492; Punjab National Bank & Ors. v. Manjeet Singh & Anr., [2006] 8 SCC 647; and Bihar State Electricity Board & Anr. v. Bijay Bahadur & Anr., [2000] 10 SCC 99. 59. 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. v. Bijay Bahadur & Anr., [2000] 10 SCC 99. 59. 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 of 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. 60. Learned counsel also submitted that prior to the interim order passed by this Court on 7.4.2003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some installments/amount had already been recovered from some of the teachers. Since we have directed that no recovery of the excess amount be made from the appellant- teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them." 13. Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. Annexure P-12 dated 20.8.2011 is quashed and set aside. Respondents are directed to pay and release the pensionary/retiral benefits to the petitioner on the basis of stepping up as per letter dated 1.10.1999. There shall, however, be no order as to costs.