ORDER 1. Petitioner has filed the present petition being aggrieved by the order dated 28.3.2014 (Annexure P-1) and (Annexure P-2), by which recovery of Rs.96,361/- has been made from retiral benefits of the petitioner. 2. The petitioner retired from service as Assistant Teacher on 30.4.2013. After the retirement, the respondents No.4 and 6 issued an order dated 28.3.2014 refixing his pay and ordered for recovery of Rs.96,361/-. 3. During his service, after completing 12 years of service, he was granted benefit of higher pay scale. The State Government issued an upgradation policy dated 17.3.1999/19.4.1999, by which, the Government employees were directed to grant time pay scale by 2 upgradation after completing 12 years and 24 years of service. Vide order dated 4.9.2016, after completing 24 years of service, the petitioner was granted benefit of second upgradation by the respondent and pay of the petitioner was refixed after retirement. At the time of pay fixation the respondent has issued the order dated 28.3.2014 refixing the pay scale of the petitioner and ordered for recovery, hence the present petition is filed. 4. After notice the respondent has filed return, in which, it is submitted that the petitioner was placed under suspension vide order dated 18.8.1989 and thereafter the suspension was revoked on 13.9.1989 with a punishment of censure and not entitled for dearness allowance during the suspension period. Because of the suspension, the pay fixation was not properly done and the petitioner has not been paid the benefit of increment. The said punishment has not been challenged by the petitioner, hence, the direction has been given to recover the same. 5. The petitioner had already given an undertaking that if any recovery is pointed out at the time of retirement due to wrong fixation, the same may be recovered. 6. By Annexure P-1, the respondent has held that because of the punishment given to the petitioner, he was not entitled for Second Kramonati, therefore, he was fixed in the pay scale of Rs.5,000-150-8000/- in place of Rs.5,500-175-9000. The aforesaid action of the respondent cannot be upheld. 7. The promotion policy dated 14.8.2012 prescribed that the recomm-endation of the committee shall be kept in the sealed cover during pendency of the departmental enquiry/criminal case and if any constable or head constable is awarded the punishment like stoppage of one increment then after the expiry of the said period, he would be promoted. 7. The promotion policy dated 14.8.2012 prescribed that the recomm-endation of the committee shall be kept in the sealed cover during pendency of the departmental enquiry/criminal case and if any constable or head constable is awarded the punishment like stoppage of one increment then after the expiry of the said period, he would be promoted. The relevant clause is reproduced below: ^^;fn fdlh vkj{kd@iz/kku vkj{kd dks foHkkxh; tk¡p esa osruo`f) jksdus vkfn NksVh ltk izkIr gksrh gS rks ltk dh vof/k lekIr gksus ds i'pkr~ gh mldk uke ;ksX;rk lwph esa yk;k tk,xk RkFkk inksUufr izkIr gksus ij dk;ZHkkj xzg.k fnukad ls gh mldh ofj"Brk ekU; dh tk,xhA** 8. If the respondents are applying this promotion policy in case of grant of benefit of time scale, then they should apply the same in toto. The employee is entitled for promotion after completing his punishment period, then he should be entitled for benefit of time scale after completion of punishment period. 9. The petitioner was awarded a minor punishment of censure and was not entitled to get dearness allowance during the suspension period. The respondent could have withheld the said benefit only for the period from 18.8.1989-13.9.1989 but cannot deny the benefit of kramonati after undergoing the punishment. After expiry of punishment if employees are entitled for promotion, then they are also entitled for benefit of upgradation because the same is to be given in lieu of the promotion. 10. In the case of State of Punjab and others v. Rafiq Masih [ AIR 2015 SC 696 ], the Hon'ble Supreme Court has considered facts of number of cases, in which, excess payment has been paid to the employees/officers due to various reasons like wrongful fixation, revision of pay etc. and after dealing with all such situations, the apex Court has summarized all cases into 5 categories and issued directions in para 12 and held that in these cases recovery is impermissible. Para 12 of the aforesaid judgement is reproduced below : “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. Para 12 of the aforesaid judgement is reproduced below : “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. (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 the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover. 11. So far as the case of High Court of Punjab and Haryana and others (supra), is concerned, in para 11 of the order, it has been specifically held that the principle enunciated in proposition (ii) and para 12 of the case of State of Punjab and others v. Rafiq Masih (supra), cannot be applied to such a situation where the officer has given an undertaking while opting for revised pay scale. Para 11 of the aforesaid judgment is reproduced below : “11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.”� 12. In view of the above law laid down by the Hon'ble Supreme Court, order Annexure P-1 is quashed. 13. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.”� 12. In view of the above law laid down by the Hon'ble Supreme Court, order Annexure P-1 is quashed. 13. Even they cannot be withheld the salary of the suspension period as held by the Division Bench of this Court in case of State of Madhya Pradesh v. Shailendra, reported in 2011 (III) MPWN 72 =ILR [2011] MP 2315. Relevant para of the aforesaid order is reproduced below : 5. It is not dispute that the departmental proceedings instituted against the respondent who remained suspended during the period, for the imposition of a major penalty, finally ended with imposition of minor penalty of witholding of two increments without cumulaive effect. In the circumstances in view of the Circular dated 13.1.2005 which was filed with the writ petition as Annexure P-8, as also in view of the law laid down in the case of Y.S. Sachan v. State of M.P. and others (supra), the respondent was very much entitled for full salary of the period of his suspension. Para 6 of the said Circular reads thus: ^^eq[; 'kkfLr gsrq lafLFkr foHkkxh; tk¡p esa ;fn fdlh fuyafcr 'kkldh; lsod ij tk¡p mijakr y?kq 'kkLrh gh vf/kjksfir dh tkrh gS rks mldk fuyacu vkSfpR;iw.kZ ugha ekuk tk ldrkA vr% jktLo eaMy us fu.kZ; fy;k gS fd ,sls ekeyks esa lacaf/kr 'kkldh; lsod dh fuyacu vof/k dks ewyHkwr fu;e 54 ch ds ifjizs{; esa dÙkZO; vof/k ekU; dj fuyacu vof/k ds lEiw.kZ osru & HkRrs ¼'kkldh; lsod dks fuyacu vof/k esa Hkqxrku fd, x, ^^thou fuokZg HkÙks** dh jkf'k lesd lek;kstu dj fn, tk,½ ;g fu.kZ; bl Kkiu ds izlkfjr gksus dh frfFk ls ykxw gksxk rFkk ftu izdj.kksa esa fu.kZ; fy;k tk pqdk gS] os iqu% ugha [kksys tk,axsA** 14. In view of the aforesaid, recovery order (Annexure P-2) is set aside. The respondents are directed to refund the amount of Rs.96,361/- to the petitioner within a period of 45 days from production of certified copy of this order. 15. The writ Petition is allowed. No order as to costs.