ORDER 1. The petitioner has filed this writ petition, seeking to quash the order of the 3rd respondent dated 05.01.2012 passed in Na. Ka. No. 4125/09AP(7) and the consequential order dated 05.01.2012 passed in Na. Ka. No. 4125/09AP(8). The petitioner also sought a direction to the respondents to grant monthly pension and further direct them to disburse the retirement benefits along with 18% interest from 30.11.2009 to till the date of such payment. 2. The brief facts of the case of the petitioner is as follows:- (i) The petitioner was appointed as Junior Inspector of Co-operative Audit in the integrated Co-operative Department by the proceedings of the Ramanathapuram District (East) Co-operative Audit Officer in Na. Ka. 3186/84 A1 dated 02.05.1984 and subsequently, he was transferred to the department of Co-operative Audit. In the meanwhile, a departmental examination was conducted to regularize the service of the Junior Inspector of Co-operative Audit Officer by the TNPSC on 15.10.1989. Since the petitioner was not successful in the said examination, other 330 successful candidates' service were regularized and posted as Junior Inspector of Co-Operative Audit Officer (Selection Grade) under the control of the third respondent vide G.O.Ms. No. 626 dated 26.07.1995. (ii) It is submitted by the petitioner that other unsuccessful candidates filed Original Application before the then Tamil Nadu Administrative Tribunal, pursuant which, the Government passed a Government Order in G.O.Ms. No. 445 dated 20.12.2015, for regularization of their services with retrospective effect from 16.10.1989. On the basis of the said order, the unsuccessful candidates made an appeal before the second respondent to grant Selection Grade in Junior Inspector of Cooperative Audit Officer as provided to the other 330 successful candidates, Though the 2nd respondent granted Selection Grade in Junior Inspector of Co-operative Audit Officer, a condition was imposed that till the clearance of the examinations within a period of 3 years, the increment will be stopped. Since he was regularized in service belatedly, his probation was not declared within two years and thereby, he lost his opportunity to participate in the departmental examinations. (iii) It is further submitted that in the meanwhile, on 30.11.2009, he retired from service as Junior Inspector of Co-operative Audit Officer on attaining the age of superannuation. But his pension proposals were not forwarded to the 1st respondent by the 2nd and 3rd respondents on account of excess salary paid to him. (iii) It is further submitted that in the meanwhile, on 30.11.2009, he retired from service as Junior Inspector of Co-operative Audit Officer on attaining the age of superannuation. But his pension proposals were not forwarded to the 1st respondent by the 2nd and 3rd respondents on account of excess salary paid to him. Though he sent his pension proposal on 09.06.2010 to the 2nd and 3rd respondents, the same was not at all considered by the respondents. Therefore, he was constrained to file a writ petition in W.P. (MD) No. 8901 of 2010, which was disposed of by this Court directing to consider his representation dated 09.06.2010. In consequence thereof, the impugned orders were passed by the third respondent withholding his retirement benefits and pension till the remittance of Rs. 2,01,640/- which was said to be excess salary paid to him, while he was in service. (iv) The petitioner assailed the impugned order stating that the said order was passed without getting concurrence from the TNPSC, which is mandated by the existing pension rules and the same is also against the decisions of the Hon'ble Supreme Court in the case of Vijay L. Mehrotra vs. State of U.P. and Others, (2001) 9 SCC 687 and also Purushottam Lal Das vs. State of Bihar, 2006 (11) SCC 492 . It is stated that the respondents had failed to see that the excess salary was not received by him on misrepresentation or suppression of fact and the pensionary benefits are legal rights of a retired Government employee, who rendered his long service to the Government. Therefore, it is prayed the impugned orders are liable to be set aside. 3. The 2nd and 3rd respondents have filed a counter along with a petition to vacate the interim stay, wherein it has been stated as under: (i) The petitioner was originally appointed as Junior Inspector of Cooperative Societies through Employment Exchange with effect from 10.05.1984 against the vacancy, which was purely temporary and liable to be terminated. In view of the demands from the Service Associations and the temporary Junior Inspector of Co-operative Societies, Government have taken a decision on humanitarian ground to conduct a special qualifying examination for the temporary Junior Inspector of Cooperative Societies without ordering them to appear for the regular competitive examination conducted by the TNPSC. In view of the demands from the Service Associations and the temporary Junior Inspector of Co-operative Societies, Government have taken a decision on humanitarian ground to conduct a special qualifying examination for the temporary Junior Inspector of Cooperative Societies without ordering them to appear for the regular competitive examination conducted by the TNPSC. Based on the Government Order dated 10.11.1988, the TNPSC conducted the special qualifying examination on 15.10.1989, in which the petitioner had failed to qualify himself for selection and became ineligible for regularization of his temporary services and the temporary services of the successful candidates have been regularized with effect from 16.10.1989. (ii) It is stated in the counter that the Department of Co-operative Audit was separated from the Composite Co-operative Department with effect from 17.06.1981. The regular staff in the Co-operative Department, who opted for Co-operative Audit Department were transferred to the Co-operative Audit Department permanently and out of 351 temporary Junior Inspector of Co-operative Societies, 330 Junior Inspector of Co-operative Societies came out successful in the special qualifying examination and the Government have transferred them to the Co-operative Audit Department permanently. (iii) It is further stated in the counter that Junior Inspector of Co-operative Societies, who have been selected through special qualifying examination conducted in 1989, were given certain concessions to fill up large number of Senior Co-operative Auditor vacancies as per the Government Orders. The respondents have also furnished several Government Orders in support their contention. It is not true that the temporary selected persons were granted selection grade in the post of Junior Co-operative Auditor. (iv) It is also stated that the petitioner has submitted a representation dated 30.10.2007 requesting to promote him as Senior Cooperative Auditor on part with the passed candidates, who have been promoted as Senior Co-operative Auditor during the year 1995. In the case of failed candidates, based on the judgment in various cases, they were governed by the adhoc rules framed exclusive for this department vide G.O.Ms. No. 253 Finance (CA) Department dated 31.03.1986. As per the said Rules, they should pass the test prescribed within the probation period. But the petitioner passed the said test during the year 2007 only and his probation was declared on 27.05.2007 only. No. 253 Finance (CA) Department dated 31.03.1986. As per the said Rules, they should pass the test prescribed within the probation period. But the petitioner passed the said test during the year 2007 only and his probation was declared on 27.05.2007 only. Therefore, it was informed to the petitioner that he could not promoted on par with the Junior Co-operative Auditors, who had passed the special qualifying examination conducted by the TNPSC in the year 1989. (v) The stand taken by the respondents is that in the meanwhile, the petitioner was due for retirement on 30.11.2009 and he has also submitted his pension proposal dated 06.11.2009. While scrutinizing the pension proposal with his Service Register, it was found that he had not passed the test within the prescribed time as per the adhoc rules of the department. Hence, his 2nd and further increments can be considered only after passing the prescribed test as per Rule 23-A of the Tamil Nadu State and Subordinate Service Rules. Therefore, it was decided that the and further increments sanctioned after 16.10.1989 have to be recovered. Hence, the pension proposal has been to the Assistant Director of Co-operative Audit, Madurai vide letter dated 20.01.2010 to submit the revised proposal after regularising the increments with the instruction to recover the amount. (vi) The further stand taken by the respondents is that consequent to the return of pension proposal for resubmission through the respondent, the petitioner has submitted a representation dated 09.06.2010 to admit the pension proposal without any condition. In the interregnum period, he had filed a writ petition in W.P. (MD) No. 8901 of 2010 before this Court for a direction to consider representation dated 09.06.2010, which was in turn directed to be considered vide order dated 13.07.2010, based on which the 2nd respondent has sent a letter to the petitioner stating that the Government have not given any protection in respect of Junior Inspector of Co-operative Societies, who had not passed the special test and hence, the increment has to be regularized only from 16.10.2009 and the pension proposal cannot be forwarded to the Accountant General. (vii) It is the stand taken in the counter that as per Rule 23-A of the Tamil Nadu State and Subordinate Service Rules, and further increments have to be considered after passing all the tests and therefore, the increments sanctioned to the petitioner for the period of non passing of tests have to be recovered from him and the excess amount calculated comes to Rs. 2,01,640/-. Recovery order was also passed by the 3rd respondent vide impugned orders dated 05.01.2012, which cannot be faulted with. According to Rule 6(2) of the Tamil Nadu Pension Rules, 1978, the pension sanctioning authority may take reduction in the amount of pension or gratuity or both in case of Government Servant whose services have not been satisfactory. The provisions of Rule 9(1)(a) of the Tamil Nadu Pension Rules, 1978 reserve rights to withhold the pension or part thereof permanently or temporarily in case pensioner is found guilty of grave misconduct for negligence during the period of his service. (viii) It is the further stand that the differential amount of Rs. 58,341/- between admissible gratuity and the provisional gratuity has been withheld for recovery of excess amount paid to him. Further, he has also given undertaking in the pension proposal itself that he shall make good any loss caused to Government by way of any overdrawal of pay, allowance, leave salary etc. Therefore, consultation with the TNPSC in the instant case does not arise at all. It is reiterated that since he had not cleared the test within time, the increments granted prior to him were ordered to be recovered. 4. Heard the learned counsel for the parties and given thoughtful consideration to the submissions on either side. 5. It is an admitted fact that the petitioner had already retired from service on 30.11.2009 after rendering about 25 years of service without any blemish. The contention of the respondents is that the petitioner, while in service, was paid higher wages totalling to the tune of Rs. 2,01,640/- which the petitioner is not eligible. Since the petitioner was not given revision of pay based on the proceedings of the 2nd respondent dated 23.05.2008, he was given the pay applicable to the post of Junior Inspector of Co-operative Audit. 2,01,640/- which the petitioner is not eligible. Since the petitioner was not given revision of pay based on the proceedings of the 2nd respondent dated 23.05.2008, he was given the pay applicable to the post of Junior Inspector of Co-operative Audit. The representation dated 09.06.2010, given by the petitioner, was at last disposed of based on the orders of this Court dated 13.07.2010, by withholding his retirement benefits and pension till the remittance of Rs. 2,01,640/- vide orders dated 05.01.2012, which are impugned in this writ petition. The petitioner has not so far remitted the said amount. 6. It is not in dispute that as per the provisions of 53 (2) of the Tamil Nadu Pension Rules, every Government servant shall submit his application for pension at least one year in advance of the date of his anticipated retirement, whereas in this case, the petitioner has submitted the application only in November, 2009 during the month of his superannuation. Hence, the respondents cannot be blamed for any delay in arriving at the amount. At the same time, it is to be remembered that for no fault of the petitioner for wrong fixation of his pay, the petitioner alone cannot be proceeded with in ordering recovery of the excess amount, when the respondents have not reserved their rights to do so at the time of granting higher pay. Whether there was any wrong fixation or the petitioner worked in higher pay has to be considered in the enquiry. 7. The Hon'ble Supreme Court in the case of State of Punjab and Others vs. Rafiq Masih (White Washer), Civil Appeal No. 11527 of 2014, decided on 18.12.2014, has held as under: “12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh equitable balance of the employer's right to recovery.” 8. In this case, the petitioner/employee has retired from service and therefore, in the light of the decision of the Hon'ble Supreme Court, referred to above, no recovery can be effected from the petitioner, more particularly, as observed earlier, the respondents have not reserved any rights to proceed with for recovery of the amount. The recovery could only be permissible in consonance with law and Statute. Therefore, the contention of the respondents that the petitioner was paid excess amount, which includes gratuity amount, cannot be accepted. 9. Therefore, the writ petition is allowed and the impugned orders dated 05.01.2012 are set aside. The respondents are directed to release the gratuity amount due to the petitioner on and from the date of his retirement. Even though there is a statutory duty cast on the employer to pay the amount together with interest, the petitioner is entitled to interest on gratuity @ 9% per annum on and from the date of his retirement and monthly pension and the arrears of pensionary benefits, if any, shall also carry interest @ 6% per annum. If the amount mentioned supra is not paid within a period of two months from the date of receipt of a copy of this order, the petitioner will be entitled to interest @ 15% on the gratuity amount and arrears payable to the petitioner. If the amount is not paid by the concerned Officer within the period stipulated supra, the respondents shall recover the amount of interest from the errant officer after paying the amount to the petitioner. No costs. Consequently, connected miscellaneous petitions are closed.