JUDGMENT : 1. Petitioner No.1 was initially engaged as daily wager in the month of December, 1981 and being eligible for appointment to the post of Junior Assistant was accorded sanction for promotion to the said post vide order Annexure A dated 25.10.1991. Likewise, petitioner No.2 was engaged as daily wager in the month of December 1979 and was considered for promotion to the post of Junior Assistant by the Departmental Promotion Committee and was placed on regular establishment by giving promotion to the post of Jr. Assistant vide Order Annexure B dated 7.11.1989. First in-situ promotion was given to petitioner No.1 w.e.f 01.01.1995 by treating petitioner No.1 having completed nine years of service i.e requirement under law for getting in-situ promotion by giving the benefit of SRO 311 and appropriate entry to that effect was made in the service book of petitioner No.1 i.e Annexure D. Likewise, petitioner No.2 was given in-situ promotion by virtue of order Annexure D dated 31.01.1998 w.e.f 01.01.1995, although entitlement for the same was claimed w.e.f. a date prior to the date on which petitioner No.1 was given in-situ promotion as petitioner No.2 had completed more than nine years service on 01.01.1995. Copy of service book reflecting grant of in-situ promotion to petitioner No.2 w.e.f 01.01.1995 is attached along with the writ petition as Annexure E. 2. Vide order Annexure F dated 15.12.2004, petitioner No.1 was given second in-situ promotion w.e.f 01.01.2004 as on the said date, petitioner No.1 had completed nine years of service. Likewise, vide order Annexure G dated 27.01.2005, petitioner No.2 was given second in-situ promotion on the basis of petitioner No.2 having completed nine years of regular service after grant of first in-situ promotion. Subsequently, on the basis of audit conducted by the Audit and Accounts Department, the respondents without taking into account SRO 311 dated 09.09.1997 issued letter dated 28.07.2007 directing the respondents to recheck/confirm wrong fixation of pay of the petitioners and to effect recovery. A copy of letter dated 28.7.2007 is attached along with the writ petition as Annexure-J. In pursuance thereto, Executive Engineer EM&RE Division Kathua wrote letter dated 03.01.2008 to the Superintending Engineer EM&RE Circle II Jammu seeking instructions of respondent No.2 for effecting recovery of excess pay drawn by the petitioners. 3. A copy of letter dated 28.7.2007 is attached along with the writ petition as Annexure-J. In pursuance thereto, Executive Engineer EM&RE Division Kathua wrote letter dated 03.01.2008 to the Superintending Engineer EM&RE Circle II Jammu seeking instructions of respondent No.2 for effecting recovery of excess pay drawn by the petitioners. 3. Aforementioned letter No. PVP-2/J/2007-08/15 dated 28.07.2007 i.e Annexure J and order dated 03.01.2008 i.e Annexure K have been challenged by the petitioners on the ground that direction was to recheck/confirm the fixation of pay stated to be wrongly fixed, but the respondents on mere issuance of letter dated 28.7.2007 and without re-checking/confirming the position issued order dated 03.01.2008 whereas in terms of SRO 311, 50% of the total service as daily wager had to be counted as regular service while giving in-situ promotion. Mr. S.K.Anand learned counsel contends that in the circumstances, 1st and 2nd in-situ promotion was rightly treated as having been granted on completion of nine years of service but the respondents had not taken into account the said fact while passing the impugned order. Annexure-J dated 28.7.2007 is claimed to have not taken into account SRO 311 which provides for the benefit of continuity of 50% service rendered as daily wage for 1st, 2nd and 3rd in-situ promotion as the case may be. Relevant extract of SRO 311 is reproduced here under: “The proviso contained in last lines in Rule 5-AA applies to those cases only where employees have retired and their cases have been decided before issuance of SRO-311 dated 09.09.1997, but all those employees who were in service on the date of the issue of the said SRO 311 dated 09.09.1997 are entitled to the benefit of continuity of 50% service rendered as daily wage/work charge service for 1st, 2nd and 3rd in situ promotion as the case may be.” 4. It is further contended that the impugned order had been passed without compliance with the principles of natural justice and that even otherwise representation filed by the petitioners before the Accounts Department that the petitioners had not drawn excess payment had not been decided till date. 5. Stand of respondent Nos. It is further contended that the impugned order had been passed without compliance with the principles of natural justice and that even otherwise representation filed by the petitioners before the Accounts Department that the petitioners had not drawn excess payment had not been decided till date. 5. Stand of respondent Nos. 5 to 7 on the other hand is that 50% of daily wage service under Rule 5 AA (inserted vide SRO 311 dated 09.09.1997) of J&K Civil Services (Higher Standard Pay Scheme) Rules, 1996 could have been counted for purpose of grant of in-situ promotion in case the petitioners had been brought to the regular establishment of the Government in the lowest pay scale prescribed by the Government. Since the petitioner was appointed/promoted as Jr. Assistant in the pay scale of Rs.950-1500 in the clerical cadre, Rule 5-AA of J&K Civil Services (Higher Standard Pay Scheme) Rules, 1996 was not applicable. 6. Mr. S.K.Anand learned counsel on the other hand contends that in terms of letter Annexure J dated 28.7.2007, wrong fixation of pay was to be rechecked/confirmed where after recovery was to be effected. Learned counsel contends that the impugned order does not record, a finding that rechecking/confirmation had been done and thereafter it had been concluded that the petitioners had wrongly been granted the benefit. 7. Learned counsel further contends that the petitioners are Class-III and Class- IV employees and in view of decision of Hon’ble Supreme Court in State of Punjab and ors vs. Rafiq Masih, reported as 2014 Legal Eagle (SC) 1047, recovery could not be effected from class-III and Class-IV service employees since the same would visit class III and class IV employees with great hardship. Learned counsel states that petitioner No.1 has already retired. 8. Perusal of letter dated 03.01.2008 i.e. Annexure K reveals that Executive Engineer Electric. Maintt & RE Division Kathua while noticing that the petitioners had filed representation, had straightway sought instructions for recovery of excess pay drawn by the petitioners. There is no order of decision having been taken by the competent authority that the benefit granted to the petitioners had been wrongly granted. The competent authority was required to recheck/confirm the pay and thereafter effect recovery, if warranted. There is no order of decision having been taken by the competent authority that the benefit granted to the petitioners had been wrongly granted. The competent authority was required to recheck/confirm the pay and thereafter effect recovery, if warranted. In the circumstances, in the absence of a specific order having been passed by the competent authority i.e Chief Engineer concerned, it was not open to the respondents to have started effecting recovery from the petitioners. Even otherwise, in view of decision of Hon’ble Supreme Court in Rafiq Masih’s case as referred to above, recovery from class-III and Class-IV employees is not permissible since the same would visit them with adverse financial consequences on account of lapse of time. 9. I have heard learned counsel for the parties and have considered the submissions made by them. In fact, the writ petition is premature as is evident from the contents of paragraph No.9 of the objections filed on behalf of respondent Nos. 5 to 7 as also in view of the fact that there is no order of the competent authority regarding a finding that the payment had been found to be wrongly made to the petitioners on account of wrong fixation of pay. Relevant extract of paragraph No.9 of the objections filed on behalf of respondent Nos. 5 to 7 is as under: “The representation of the petitioners, if any, against the irregularity pointed out by the answering respondent is required to be examined and considered by respondent Nos. 1 to 4 and submitted to the answering respondent for a review if need be. But no such recommendation has so far been received from the respondent No.4. However, the answering respondent has called for the service books of both the petitioners for a review vide letter No. PVCJ/08-09/129 dated 19.03.09. (copy enclosed and marked as Annexure A)”. 10. Apparently, the writ petition has been filed prior to the decision having been taken in the matter on the communication Annexure K dated 03.01.2008. In view thereof, the writ petition is disposed of by directing re-fixation of pay of the petitioners in terms of Annexure J dated 28.07.2007 and by taking into account SRO 311 dated 09.09.1997, factual position as well as the rules and regulations applicable in respect thereto. In view thereof, the writ petition is disposed of by directing re-fixation of pay of the petitioners in terms of Annexure J dated 28.07.2007 and by taking into account SRO 311 dated 09.09.1997, factual position as well as the rules and regulations applicable in respect thereto. Accordingly, re-fixation of pay of the petitioners be carried out subject to verification of record etc, as referred to above and after compliance with the principles of Natural Justice and giving an opportunity of hearing to the petitioners. However, in view of the law laid down by the Hon’ble the Supreme Court in Rafiq Masih’s case, no recovery be made from the petitioners of the payment already made in the absence of any overt act on the part of the petitioners. 11. Writ petition is allowed in the aforementioned terms.