Judgment A.I.S. Cheema, J. 1. Rule. Rule made returnable forthwith and heard finally with the consent of the parties. The matter was heard on 13th November 2013 and further heard today. 2. This Writ Petition arises as the State is trying, after retirement of the employee, to re-fix the pay by ignoring increments wrongly granted as the employee had not passed professional examination and to recover the excess amount paid. 3. Writ Petitioner was appointed as Assistant Store Keeper on 25th May 1981 with the then Maharashtra Water Supply and Sewerage Board which came to be subsequently reconstituted and renamed as Maharashtra Jeevan Pradhikaran (Respondent No.2). He was promoted on 19th June 1997 as Store Keeper. Government had framed a scheme of promotion for Class-III employees to give time bound promotion from 1st October 1994 to such of the employees in Class-III cadre who had continuously worked for 12 years in the same cadre. In view of the scheme, Petitioner was given time bound promotion vide order dated 23rd January 1996, with effect from 1st October 1994. At the time of such promotion Petitioner had already completed 45 years of age and he was granted exemption from passing departmental examination for the post of Store Keeper in view of Government Resolution (G.R.) dated 1st November 1977. Entry in that regard was taken in his service book in the light of order of Superintending Engineer dated 29th November 1997. It is claimed that Petitioner was under bona fide impression that he was exempted from passing the examination. In fact as per order dated 29th November 1997, his increments which had been stopped earlier on the ground of non passing of the departmental examination were also regularized from the date of exemption i.e. from 18th October 1996. He superannuated on 31st October 2009. By impugned communication dated 22nd November 2010 of Senior Accounts Officer of Respondent No.2, it has been directed that though Petitioner was promoted vide order dated 19th June 1997 and benefit of time bound promotion is effected from 1st October 1994 i.e. prior to the Petitioner attaining the age of 45 years (which he had attained on 19th October 1996) therefore he is not eligible for exemption from passing departmental examination and the same should have been passed within five years of 1st October 1994 and thus by 1st October 1999. As the Petitioner had not passed the examination, his annual increments from 1st October 2000 should be stopped. Recovery was thus ordered by the Senior Accounts Officer. Consequently Executive Engineer has passed impugned order No.35 dated 27th January 2011 and Respondent No.2 has vide order dated 20th July 2011 cancelled the increments granted with effect from 1st October 2000, in favour of Petitioner. The order passed directs that Rs.1,56,161/- is liable to be recovered on the ground of non passing of the departmental examination and it has been further clarified that Rs.70,170/- paid as earned leave is also liable to be recovered. Thus the Petition has been filed with the prayer that the order dated 22nd November 2010 issued by Senior Accounts Officer and Order No.35 of 2011 dated 27th January 2011 passed by Executive Engineer as well as order dated 20th July 2011 passed by Respondent No.2 are liable to be quashed and set aside. 4. Against such claims of the Petitioner, Respondent Nos. 1 to 3 vide affidavit dated 15th January 2013 claim that the G.R. Dated 1st November 1977 issued by the Government of Maharashtra granted exemption to the employees only from "departmental examination" if an employee attains the age of 45 years. However, the said exemption is not granted to the employees from passing "professional examination" which is mandatory provision laid down in Appendix 2 of the Public Works Manual. According to these Respondents Petitioner was exempted only from departmental examination. After the Petitioner was promoted to the post of Store Keeper from the post of Assistant Store Keeper, he ought to have passed professional examination which is mandatory. He never passed the same and he was wrongly and illegally promoted to the post of Store Keeper and was continued on the same post till his retirement on superannuation dated 31st October 2009. As Petitioner did not pass the professional examination for the post of Store Keeper so the annual increment paid to him from 1st October 2000 was cancelled vide office order No.35 of 2011 dated 27th January 2011 and over payment of Rs.2,26,331/- was directed to be recovered. Recovery initiated is as per rule. 5. As Petitioner did not pass the professional examination for the post of Store Keeper so the annual increment paid to him from 1st October 2000 was cancelled vide office order No.35 of 2011 dated 27th January 2011 and over payment of Rs.2,26,331/- was directed to be recovered. Recovery initiated is as per rule. 5. This Court had vide order dated 23rd January 2013 recorded that the Petitioner was placing reliance on the order passed by Superintending Engineer on 29th November 1997 exempting him from passing the professional examination on completion of 45 years of age. However while passing the order impugned in this matter, recovery has been directed on account of failure of Petitioner to pass the professional examination. The Respondents sought time to explain the inconsistency. As per the additional affidavit dated 14th March, 2013, Respondents have explained that it has been found that their Superintending Engineers in various field offices have issued orders in favour of store keepers of exemption from passing of the professional examination on attaining age of 45 years. However no provision of exemption after attaining age of 45 years is there in the Maharashtra Public Works Manual, 1984. The provisions of the rule have been applied even to those who have been given time bound promotions and is applicable to the Petitioner. In this regard Resolution dated 8th June 1995 has been passed. Now circular dated 24th January 2013 has been issued giving directions for cancellation of illegal orders passed by Superintending Engineers. Respondents claim that vide circular dated 24th January 2013 the irregularity has been corrected by the head office of Respondent No.2 and the recoveries have been started only in respect of excess payments made to Store Keepers after the exempted period. 6. We have heard learned counsel for both the sides who have made submissions on the above lines. Following dates and facts appear to be material: Petitioner was appointed as Store Keeper on 25th May 1981. He was given higher pay scale with effect from 1st October 1994. By 1st October 1999 he should have passed the professional examination. Before that he crossed the age of 45 years on 18th October 1996 and was even promoted with effect from 19th June 1997 from Assistant Store Keeper to the post of Store Keeper. He superannuated on 31st October 2009. 7. By 1st October 1999 he should have passed the professional examination. Before that he crossed the age of 45 years on 18th October 1996 and was even promoted with effect from 19th June 1997 from Assistant Store Keeper to the post of Store Keeper. He superannuated on 31st October 2009. 7. According to learned counsel for Respondent No.2, the Pradhikaran is bound by Rules and Government Circulars, as it may adopt. Respondent No.2 relies on Appendix 2 of the Maharashtra Public Works Manual relating to "Procedure And Rules Regarding The Professional Examination of Store Keepers" which provides in Rules 1 to 3 as under:- “Rule 1. The Storekeepers will become eligible to appear for the examination, after they complete 2 year's service in the posts of storekeepers on in equivalent posts and will be required to pass the examination within 3 years from the date they complete 2 years' service. The existing superintendents of stores are not required to pass the examination. If any of the assistant storekeepers so desire, they will be allowed to appear for the examination provided they have put in not less than two years service as assistant storekeepers in the department. Rule 2. Storekeepers who do not pass the examination within the time-limit stipulated in rule 1 above will be liable to be discharged or reverted, if temporary or officiating. Permanent storekeepers, who do not pass the examination according to these rules will be liable to have their increments withheld till they pass the examination. Rule 3. The Superintending Engineers or other Heads of Departments under the Public Works Department and Irrigation Department may grant, in deserving individual cases, a reasonable extension of time for a period not exceeding two years beyond the period normally permissible, to storekeepers who are not able to appear for the examination owning to exigencies of public service, illness, want of time or opportunity to convene a committee or other valid reasons. Every order granting such extension should state clearly the circumstances justifying it and a copy of the same should be endorsed to Government for information. The penalty prescribed in rule 2 above shall become operative only in the case of those who do not pass the examination even within the extended period." Further rules provide for annually holding the examination on particular days and the syllabus etc. 8. The penalty prescribed in rule 2 above shall become operative only in the case of those who do not pass the examination even within the extended period." Further rules provide for annually holding the examination on particular days and the syllabus etc. 8. Record shows that Superintending Engineer of Respondent No.2 vide order dated 29th September 1997 referred to Government of Maharashtra G.R. dated 1st November 1977 and ordered that as on 18th October 1996 Petitioner has completed 45 years of age, he is exempted from passing of "professional examination" of Store Keeper and so his increments withheld may be released. (Emphasis supplied). Copy of the GR dated 1st November 1977 available in the record shows that the G.R. related to exemption of employees from passing "departmental examination" when they crossed the age of 45 years. Government directed the departments to amend rules in this regard and to grant exemption. After the orders dated 23rd January 2013 of this Court it appears that the Respondent No.2 has woken up to send out circular dated 24th January 2013 directing that its own Superintending Engineers have wrongly given exemption from passing the professional examination on crossing of age of 45 years. Now Respondent No.2 has given guidance to its subordinates that Appendix 2 of the Maharashtra Public Works Manual does not provide for any such exemption. The circular has now directed rectification of the situations and even to make recoveries where wrong increments have been released, by giving easy installments. 9. It is apparent that the superior officers of Petitioner were themselves under wrong impressions and granted exemptions when the concerned rules did not provide for exemption at 45 years of age. It is quite clear that it was not fault of the Petitioner and he received the benefit in view of the office order dated 29th November 1997 passed by Superintending Engineer. There is no material to show that Petitioner made any misrepresentation or committed any fraud for getting such benefits. 10. Learned counsel for the Petitioner relied on the case of the State of Punjab and another vs. Shamlal Murari and another reported in AIR 1976 Supreme Court 1177 to state that benefit of increments cannot be denied particularly when the Government Servant was granted exemption from departmental examination. 10. Learned counsel for the Petitioner relied on the case of the State of Punjab and another vs. Shamlal Murari and another reported in AIR 1976 Supreme Court 1177 to state that benefit of increments cannot be denied particularly when the Government Servant was granted exemption from departmental examination. Reliance is also placed on the matter of Purshottam Lal Das and others vs. State of Bihar and others, reported in 2006 (11) Supreme Court Cases 492,to submit that such recoveries cannot be ordered after the employee has retired. It has been submitted that in the matter of Purshottam Lal (supra) where promotions were illegally granted and the appellants therein were reverted to the original posts, although the orders of reversions were maintained no recoveries were made as the appellants therein were not at fault, and as they had worked on the promotional posts. 11. In the matter of Shyam Babu Verma and others vs. Union of India and others, reported in (1994) 2 Supreme Court Cases 521, higher pay-scale was erroneously paid in the year 1973 and the same was sought to be recovered in 1984, after eleven years. The Hon'ble Supreme Court found that sudden reduction of the pay-scale after several years of implementation had not only affected financially but even the seniority of the Petitioners and thus found under such circumstances that it will not be just and proper to recover any excess amount. In the matter of Sahib Ram vs. State of Haryana and others, reported in 1995 Supp. (1) Supreme Court Cases 18, the Hon'ble Supreme Court found that the appellant did not possess the required educational qualification and consequently was not entitled to the relaxation but having been granted the relaxation erroneously by the Principal and having been paid the salary on the revised scales, it was directed that the excess payment should not be recovered. 12. Against this, it has been argued for the Respondents that Maharashtra Civil Services (Pension) (Amendment) Rules, 2007 provide in Rule 134A that if in the case of a Government servant who has retired, it is found that due to any reason excess amount has been paid to him during the period of service, the same is liable to be recovered. Against this, it has been argued for the Respondents that Maharashtra Civil Services (Pension) (Amendment) Rules, 2007 provide in Rule 134A that if in the case of a Government servant who has retired, it is found that due to any reason excess amount has been paid to him during the period of service, the same is liable to be recovered. Reliance is also placed on the case of Chandi Prasad Uniyal and others vs. State of Uttarakhand and others, reported in 2012 A.I.R. S.C.W. 4742and learned counsel for Respondents submitted that the Supreme Court did not stop recovery when it was found that there was wrong pay fixation. 13. In the above matter of Chandi Prasad, question raised before the Hon'ble the Supreme Court was whether over payment of amount due to wrong fixation of 5th and 6th pay-scale of teachers/principals based on 5th Pay Commission Report could be recovered from the recipients who were serving as teachers. In that matter the High Court had rejected the writ petition filed by the appellants and taken the view that since the payments were effected due to a mistake committed by the District Education Officer, the same could be recovered. The Hon'ble the Supreme Court referred to the rulings cited before it and the facts of the matter. In Para 8, the Hon'ble the Supreme Court referred to the fact that when the revised pay-scale/ pay fixation was done, a condition was superimposed, "In the condition of irregular/wrong pay fixation, the institution shall be responsible for recovery of the amount received in excess from the salary/pension." It has been observed by the Hon'ble the Supreme Court that appellants in that matter were bound by that condition as well. The Supreme Court found that the facts clearly demonstrated that the excess salary was paid due to irregular/wrong pay fixation by the District Education Officer. The Hon'ble the Supreme Court then dealt with the question whether the appellants could retain the amount received on the basis of irregular/wrong pay fixation in the absence of any misrepresentation or fraud on their part as was contended. In Para 9 of the Judgment, it has been observed that: "9. The Hon'ble the Supreme Court then dealt with the question whether the appellants could retain the amount received on the basis of irregular/wrong pay fixation in the absence of any misrepresentation or fraud on their part as was contended. In Para 9 of the Judgment, it has been observed that: "9. We are of the considered view, after going through various judgments cited at the bar, that this court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered." While discussing the rulings cited before it, the Hon'ble the Supreme Court in Para 12, 13 and 14 observed as under: 12. We may in this respect refer to the judgment of two-Judge Bench of this Court in Col. B.J. Akkara (retd.) case (2006 AIR SCW 5252) (supra) where this Court after referring to Shyam Babu Verma case, Sahib Ram case (supra) and few other decisions held as follows: “Such relief, restraining recovery back of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hardship that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.” 13. Later, a three-Judge Bench in Syed Abdul Qadir case (2009 AIR SCW 1871) (supra) after referring to Shyam Babu Verma, Col. B.J. Akkara (retd.) etc. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.” 13. Later, a three-Judge Bench in Syed Abdul Qadir case (2009 AIR SCW 1871) (supra) after referring to Shyam Babu Verma, Col. B.J. Akkara (retd.) etc. restrained the department from recovery of excess amount paid, but held as follows: “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. (emphasis added)” 14. We may point out that in Syed Abdul Qadir case (2009 AIR SCW 1891) such a direction was given keeping in view of the peculiar facts and circumstances of that case since the beneficiaries had either retired or were on the verge of retirement and so as to avoid any hardship to them." The Hon'ble Supreme Court was concerned with the excess payment of public money and in Para 16 and 17 recorded that: "16. ........ Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. 17. ........ Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. 17. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (2009 AIR SCW 1871) (supra) and in Col. B.J. Akkara (Retd.) case (2006 AIR SCW 5252) (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered." 14. The Hon'ble the Supreme Court has thus recorded that except for few instances as mentioned in the matter of Syed Abdul Qadir and Col. B.J. Akkara, as referred above, excess payment due to wrong/irregular pay fixation is liable to be recovered. Thus, in the present matter it is necessary to appreciate the facts keeping in view Judgments in the matter of "Syed Abdul Qadir" and Col. B.J. Akkara, in order to consider if the recovery should be permitted after the Petitioner has retired. If the facts are perused, as already mentioned, record shows that Superintending Engineers of the Respondent No.2, superior officers of employees like Petitioner relying on Government Resolution dated 1st November, 1977 gave exemption to the Petitioner. Petitioner was granted higher pay-scale on 1st October 1994, even before he was actually promoted on 19th June 1997. He was working in the lower rung of the service and for long the department appears to have been under impression that the exemption can be granted. Petitioner received the payment for long. There is nothing to show that he knew that he was not entitle to the benefit. Respondent No.2, woke up only after this Court questioned the contradictory stands which were being taken, and issued circular dated 24th January, 2013. In the circumstances, it would be inappropriate and against equity that recoveries should be made of the increments wrongly granted to the Petitioner with effect from 1st October 2000, when he has already superannuated on 31st October 2009. Had the Respondent No.2 insisted with the Petitioner in time, that he must pass the professional examination or face stoppage of increments even after crossing the age of 45 years, the Petitioner would have had option to make efforts to pass the examination or face the consequences. Had the Respondent No.2 insisted with the Petitioner in time, that he must pass the professional examination or face stoppage of increments even after crossing the age of 45 years, the Petitioner would have had option to make efforts to pass the examination or face the consequences. It is not proper that after retirement such objections are raised. 15. In the matter of Purshottam Lal (supra), referred earlier, the reversion was upheld as the promotion was found to be illegal. But in Para 10 and 11 the Supreme Court held as under: "10. High Court itself noted that the appellants' deserve sympathy as for no fault of theirs, recoveries were directed when admittedly they worked in the promotional posts. But relief was denied on the ground that those who granted had committed gross irregularities. 11. While, therefore, not accepting the challenge to the orders of reversion on the peculiar circumstances noticed, we direct that no recovery shall be made from the amounts already paid in respect of the promotional posts. However, no arrears or other financial benefits shall be granted in respect of the concerned period." 16. In the facts and circumstances of the present matter we find that the act of the Respondents trying to make recoveries from Petitioner of benefits due to grant of increments because professional examination has not been passed, cannot be maintained and impugned orders passed in this regard are quashed and set aside. However, no arrears or other financial benefits shall be granted in respect of grant of such increments. Respondents would be at liberty to fix the pension of the Petitioner ignoring the increments wrongly granted for not having passed the professional examination. However, arrears, as mentioned above may not be recovered now as Petitioner has already retired. 17. The Writ Petition is partly allowed. Rule is made absolute on the terms indicated above.