ORDER Challenging order contained in letter dated 23.04.2007, the petitioners have approached this Court. 2. The brief facts of the case are that, the husband of the petitioners was appointed as Assistant Teacher on 29.04.1983. The husband of the petitioners was granted Matric-Trained Scale w.e.f 24.01.1997 though, the husband of the petitioners had passed the Training Examination on 03.05.2002. The husband of the petitioners was posted at Middle School, Makdumpur, Maheshpur-I, Pakur and he died on 11.01.2006 while in service. The letter from the office of the Accountant General, Jharkhand issued on 23.04.2007 would indicate that an amount of Rs. 1,68,704/ has been deducted from the retiral dues payable to the husband of the petitioners. 3. A counter-affidavit has been filed on behalf of Respondent No. 5 stating as under:- 4. “That without admitting the claims and entitlement of the petitioner it is to state and submit that the office of the answering respondent has acted strictly as per the letter issued by the department. As per the letter no.202 dated 23.02.2007 received from District Superintendent of Education, Pakur wherein it was specifically mentioned that the deceased government servant has drawn excess salary payment of Rs. 1,68,704/ and thus the authorities should be issued after adjustment of the said amount.” 4. A counter-affidavit has been filed on behalf of Respondent Nos. 3 & 5 stating as under:- 7. “That before giving para-wise reply of the present writ application it is necessary to bring certain necessary facts to the notice and knowledge of this Hon'ble Court for adjudication, which are as follows:- (i) That it is an admitted fact the husband of the petitioner namely Late Md. Kamruddin was an Assistant Teacher posted at Middle School, Makdampur, MaheshpurI within the district of Pakur, who died in harness on 11.01.2006. (ii) That it is stated that a large number of persons including the petitioners were appointed as Assistant Teachers by Sri Bhola Ram, the then District Superintendent of Education, Sahibganj in the year 198283. In the year 1984 it came to the notice of the higher authorities that those appointments were not made after following the legal procedure and prescribed norms. Therefore, their services were terminated. In the year 1984 it came to the notice of the higher authorities that those appointments were not made after following the legal procedure and prescribed norms. Therefore, their services were terminated. Thereafter, the matter moved up to the Hon'ble Patna High Court and then Hon'ble Supreme Court and in light of the Hon'ble Supreme Court's order, the authorities reconsidered the case of applicants including the petitioner and a fresh panel in accordance with law was prepared by memo no. 1813 dated 24.08.1994 and in light of the said panel about 619 candidates including the deceased husband of the petitioner were reappointed in Sahibganj District in the year 1997-98. (iii) That it is stated that the petitioners have filed the instant writ application for quashing the part of pension payment order dated 23.04.2007 whereby the amount of Rs. 1,68,704/ has been deducted from the amount of death gratuity payable to the petitioners on account of death of their husband. In this regard it is necessary to elucidate here that the main events of the service of the deceased husband of the petitioner is as under: (a) Date of appointment – 29.04.1983 (b) Date of termination of service – 12.01.1985 (c) Date of reinstatement – 24.01.1997 (d) Date of passing training examination – 03.05.2002 (e) Date of obtaining Matric-Trained Pay Scale – 24.01.1997. Thus it is clear that the deceased husband of the petitioner obtained Matric-Trained Pay Scale with effect from the date of reinstatement i.e. 24.01.1997 whereas he passed the Training Examination on 03.05.2002. (iv) That on account of the above irregularity by way of illegal promotion in Matric-Trained Pay Scale the deceased husband of the petitioners received excessive payment amounting to Rs. 1,68,704/ which was subsequently verified and assessed by the respondent department and the same was sent to the office of Accountant General for necessary inquriy and adjustment of excessive payment. Accordingly, after submission of report from the office of the Accountant General, Jharkhand, Ranchi obtained in PKREDN108068 and GPO No. 84/0708 and the petitioners were given Rs. 35,326/ and 2,04,030/ as pension and gratuity by deducting the excessive amount received by their husband Late Kamruddin. ” 5. Heard the learned counsel appearing for the parties and perused the documents on record. 6. 35,326/ and 2,04,030/ as pension and gratuity by deducting the excessive amount received by their husband Late Kamruddin. ” 5. Heard the learned counsel appearing for the parties and perused the documents on record. 6. The learned counsel appearing for the petitioners has submitted that after the death of the husband of the petitioners, no order of recovery from the retiral benefits payable to the husband of the petitioners could have been initiated by the respondent-authority. Even if it is assumed that a show-cause notice can be issued to an employee after his retirement from service, in the present case even no show-cause notice can be issued as disputed questions of fact are involved to which no other person except, the deceased employee could have answered. He has further submitted that the payment made to the husband of the petitioner on account of grant of Matric-Trained Pay-Scale w.e.f 24.01.1997 has been deducted in the year, 2007, which cannot be done by the respondent-authority, after the death of the husband of the petitioners. 7. As against the above, Mr. Vijayant Verma, the learned J.C. to G.P. II, has submitted that the husband of the petitioners was granted Matric-Trained scale before he passed the Training Examination and the grant of benefit of Matric-Trained scale was contrary to Rule 74 of the Bihar Finance Rule and Rule 58 of the Jharkhand Service Code. He has further submitted that the Matric-Trained payscale was granted to the husband of the petitioners w.e.f. 24.01.1997 although, he was not Matric-Trained on the relevant date and thus, it was apparently an illegal order and therefore, an order of recovery has rightly been passed by the respondent-authority. He has relied on a decision of the Hon'ble Supreme Court in “Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors.” reported in (2012) 8 SCC 417 , and supported the impugned order dated 23.04.2007. 8. Admittedly, the husband of the petitioners died on 11.01.2006 and the impugned deduction has been made on 23.04.2007. The husband of the petitioners was granted Matric-Trained payscale on 24.01.1997. 9. In “Col. B.J. Akkara (Retd.) Vs. Vs. State of Uttarakhand & Ors.” reported in (2012) 8 SCC 417 , and supported the impugned order dated 23.04.2007. 8. Admittedly, the husband of the petitioners died on 11.01.2006 and the impugned deduction has been made on 23.04.2007. The husband of the petitioners was granted Matric-Trained payscale on 24.01.1997. 9. In “Col. B.J. Akkara (Retd.) Vs. Government Of India & Ors.”, reported in (2006) 11 SCC 709 , the Hon'ble Supreme Court has held that an order of restrainment for recovery of excess payment, is granted by the Courts not because any right in the employees, but in equity and in exercise of judicial discretion to relieve the employees from hardship that will be caused if recovery is implemented. In paragraph 28 of the said judgment, the Hon'ble Supreme Court has held as under:- 28. “Such relief, restraining back recovery 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.” 10. In “Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors.” reported in (2009) 3 SCC 475 , the Hon'ble Supreme Court has held as under:- 57. 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.” 10. In “Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors.” reported in (2009) 3 SCC 475 , the Hon'ble Supreme Court has held as under:- 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, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar, V. Gangaram v. Director, Col. B.J. Akkara (Retd.) v. Govt of India, Purshottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bhadur.” 11. After examining the previous judicial pronouncements of the Court, the Hon'ble Supreme Court in “Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors.” (supra), has held that any excess amount paid to the Government employee can always be recovered and absence of misrepresentation or fraud played by the employee cannot be a ground not to recover the excess payment made to the employee however, in exceptional circumstances the Court may interfere with the order of recovery. In paragraph nos. 14 & 15 of the said Judgment the Hon'ble Supreme Court has held has under: 14. In paragraph nos. 14 & 15 of the said Judgment the Hon'ble Supreme Court has held has under: 14. “We are concerned with the excess payment of public money which is often described as “taxpayers' money” which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the 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. 15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case and in Col. B.J. Akkara case, the excess payment made due to wrong/irregular pay fixation can always be recovered.” 12. I find that no show-cause notice was issued to the petitioners or to the husband of the petitioners during his lifetime nor any departmental proceeding was initiated while the husband of the petitioners was in service. In “State of Jharkhand Vs. Uma Prasad”, reported in (2009) 16 SCC 767 , a case in which an order of deduction from the deathcumretiral benefit paid to the widow of the deceased employee was challenged, the Hon'ble Supreme Court has held that, since neither any showcause notice was issued nor any departmental proceeding was initiated during the lifetime of the deceased employee who had died in harness, no order for recovery could have been ordered. 13. In view of the aforesaid, the present petition is allowed. The impugned order dated 23.04.2007 is quashed. 13. In view of the aforesaid, the present petition is allowed. The impugned order dated 23.04.2007 is quashed. The amount recovered from the retiral dues of the husband of the petitioners, is directed to be refunded with interest @ 6% within a period of six weeks.