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2018 DIGILAW 2710 (JHR)

State of Jharkhand v. Shanti Kumari Sinha, wife of Sri Dwarika Prasad

2018-12-11

AMITAV K.GUPTA, AMITAV K.GUPTA, D.N.PATEL, D.N.PATEL

body2018
ORDER : D.N. Patel, J. 1. This Letters Patent Appeal has been preferred by the respondents of the writ petition being W.P. (S) No.5442 of 2004, which was preferred by the respondent. This writ petition was allowed by the learned Single Judge vide judgment and order dated 16th April, 2010 and, hence, the original respondents have preferred the present Letters Patent Appeal. 2. Having heard learned counsel for both sides and looking to the facts and circumstances of the case, it appears that the respondent is an original petitioner who preferred the writ petition, being W.P. (S) No.5442 of 2004, for the reason that she was given a pay scale of Rs.1640-2900/-with effect from 1st April, 1988 and thereafter, corresponding pay scale was given upon an application of the new pay scale at Rs.6000-10500/-. 3. It further appears from the argument canvassed by counsel for both sides that the respondent (original petitioner), who was working as an Assistant Teacher, has retired on 31st January, 2015. 4. It is the main contention of the counsel for the appellants that in the year 1998, the pay scale, which was given to the original petitioner, was at Rs.1640-2900/-. This pay scale was wrongly given. In fact, it ought to have been Rs.1400-2600/-and hence, later on, corresponding pay scale ought to have been Rs.5000-8000/-instead of Rs.6000-10500/-, for which the appellants-State initiated recovery of the amount vide their letter dated 2nd September, 2004 (Annexure 16 to the memo of writ petition being W.P. (S) No.5442 of 2004), which was under challenge in the writ petition. 5. Thus, it appears that there was no fraud, nor there is any misrepresentation by the respondent (original petitioner). The appellants have granted pay scale of Rs.1640-2900/-vide their order dated 14.10.1998 with effect from 1st April, 1988. These facts have been stated in the recovery order passed by the appellants dated 2nd September, 2004 (Annexure 16 of the memo of writ petition). Thus, the pay scale of Rs.1640-2900/-was reduced to Rs.1400-2600/-in the year 2004, after several years and that too, without giving any effective notice of hearing. Thus, there is a violation of principles of natural justice, because pay scale of a Teacher cannot be reduced which was given in the year 1998 after more than a decade. Thus, the pay scale of Rs.1640-2900/-was reduced to Rs.1400-2600/-in the year 2004, after several years and that too, without giving any effective notice of hearing. Thus, there is a violation of principles of natural justice, because pay scale of a Teacher cannot be reduced which was given in the year 1998 after more than a decade. Had any opportunity been given to the respondent, it could have been pointed out by the respondent that B.A. Trained Scale, which was given to the respondent at Rs.1640-2900/-, was absolutely just, proper and correct, because the respondent was a B.A. Trained Teacher. The aforesaid aspects of the matter have been properly appreciated by the learned Single Judge while deciding the writ petition being W.P. (S) No.5442 of 2004, vide judgment and order dated 16th April, 2010. 6. It has been held by Hon'ble The Supreme Court in the case of Shyam Babu Verma Vs Union of India reported in (1994) 2 SCC 521 at paragraph 11 as under:- “11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same.” (Emphasis supplied) 7. It has also been held by Hon'ble The Supreme Court in the case of Sahib Ram Vs. State of Haryana reported in 1995 supp(1) SCC 18, in paragraph 5, as under: - “5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant.” (Emphasis supplied) 8. It has further been held by Hon'ble The Supreme Court in the case of V. Gangaram Vs Raegional Jt. Director reported in (1997) 6 SCC 139 at paragraph 7 as under:- “7. On the basis thereof, the appellant is entitled to only two additional increments, namely, one increment for MA and thereafter one for M.Ed. Under these circumstances, the authorities have wrongly applied the GOMs No. 928 and GOMs No. 266 Finance and Planning dated 17-11-1986. While issuing the notice, it was confined to the question of recovery of the arrears paid to him from the year 1985, the year in which he is eligible to additional qualifications for holding the post of lecturer. Thus, it could be seen that he is entitled to the revised scale of pay giving the additional increments on two qualifications, namely, MA and M.Ed. and, therefore, he is entitled to the computation of the scale of pay then applicable to him prior to the date of immediate month in which examination was conducted of the scale of pay plus two additional increments. He is not entitled to the four increments, as successively claimed. We hold that he is entitled to only two increments, as indicated above. Since the Department itself has adopted the above approach, we direct that arrears paid prior to 1985 are not to be recovered and excess amount from 1985 is liable to be recovered from the pension payable to the appellant. The instalment should be proportionately distributed so as not to cause any undue hardship.” (Emphasis supplied) 9. It has also been held by Hon'ble The Supreme Court in the case of Bihar SEB Vs Bijay Bhadhur reported in (2000) 10 SCC 99 at paragraphs 7 to 11 as under:- “7. The instalment should be proportionately distributed so as not to cause any undue hardship.” (Emphasis supplied) 9. It has also been held by Hon'ble The Supreme Court in the case of Bihar SEB Vs Bijay Bhadhur reported in (2000) 10 SCC 99 at paragraphs 7 to 11 as under:- “7. Admittedly, the writ petitioners have been allowed annual increments even without passing the Hindi Noting and Drafting Examination which according to Mr Pramod Swarup, learned advocate appearing for the appellant Board has become a condition precedent and part of their service conditions and question of there being any entitlement dehors the same does not and cannot arise. Mr Swarup contended that Regulation 8 is rather categorical on this score as to the date of entitlement and since its deemed effect as a part of the condition of service, the appellant Board is within its authority and jurisdiction to deduct the amounts paid. In short, the submission of Shri Swarup on behalf of the appellant Board is that since the writ petitioners are not entitled to receive any increment, question of retention of the amounts paid whether by mistake of fact or otherwise does not and cannot arise. We, however, are not in a position to lend any credence to the same by reason of the fact that while the increments granted have been sought to be recovered but promotions given have not been withdrawn or cancelled, the Board being the governmental agency and fairness being the only accepted methodology cannot maintain a dual standard on the basis of the selfsame Regulation. Regulation 7 of the Regulation itself provides that there shall not be any increment or any promotion nor would the employees be allowed to cross the efficiency bar. The petitioners have been given due promotions and as a matter of fact the petitioner in CWJC No. 4576 of 1997 is posted as an Accountant in the Electricity Supply Sub-Division at Sheohar Town in District Sheohar on promotion. Of the dual benefits conferred the Board however thus withdrew only one part of the benefit under the resolution whereas it lent a blind eye as regards the other part of the benefit flowing from the resolution. Of the dual benefits conferred the Board however thus withdrew only one part of the benefit under the resolution whereas it lent a blind eye as regards the other part of the benefit flowing from the resolution. This, in our view is not permissible since dual standards are not only non-acceptable but ought to be avoided more so by reason of the factum of the appellant being an authority within the meaning of Article 12 of the Constitution. 8. The contention in support of the appeal as regards the deemed incorporation in the terms and conditions of service cannot also find any support by reason of the fact that unilateral change of terms need not be had. There is no documentary evidence available on the record of this matter through which even an intimation to the staff can be said to have been effected and in the absence of which question of affording any credence to the submission of Mr Swarup on this score does not arise. 9. Further, an analysis of the factual score at this juncture goes to show that the respondents appointed in the year 1966 were allowed to have due increments in terms of the service conditions and salary structure and were also granted promotions in due course of service and have been asked after an expiry of about 14-15 years to replenish the Board exchequer from out of the employees' salaries which were paid to them since the year 1979. It is on this score the High Court observed that as both the petitioners have passed the examination though in the year 1993, their entitlement for relief cannot be doubted in any way. 10. The High Court also relied on the unreported decision of the learned Single Judge in the case of Saheed Kumar Banerjee v. Bihar SEB. We do record our concurrence with the observations of this Court in Sahib Ram case and come to a conclusion that since payments have been made without any representation or a misrepresentation, the appellant Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time. The act or acts on the part of the appellant Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice. The concept of fairness has been given a go-by. The act or acts on the part of the appellant Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice. The concept of fairness has been given a go-by. As such the actions initiated for recovery cannot be sustained under any circumstances. This order however be restricted to the facts of the present writ petitioners. It is clarified that Regulation 8 will operate on its own and the Board will be at liberty to take appropriate steps in accordance with law except however in the case or cases which has/have attained finality. 11. While we record our concurrence as noted above, in regard to the decision of the matter in issue and in particular reference to the factual aspect we do not feel inclined to accept the observations of the High Court pertaining to Regulation 8 of the Regulation. Be it noted that the High Court in para 13 of the judgment observed that the Board shall not be allowed to pass an order for recovery of the said amount as the said amount has already become due to them. This observation sounds contrary to Regulation 8 of the Regulations which records that no arrears of the stopped increments shall be payable even though the person would pass the examination later on. We, therefore, record our disapproval to this observation of the High Court.” (Emphasis supplied) 10. It has also been held by Hon'ble The Supreme Court in the case of Col. B.J. Akkar (Retd.) Vs. Government of India reported in (2006) 11 SCC 709 , in paragraphs 27 to 30 as under: - “27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-6-1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar and V. Gangaram v. Regional Jt. Director): (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. Director): (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) 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. 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. 29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7-6-1999 till the issue of the clarificatory circular dated 11-9-2001. Insofar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made. 30. Insofar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made. 30. A faint attempt was made by the learned Additional Solicitor General appearing for the respondents to contend that all such wrong payments could be recovered and at best the pensioners may be entitled to time or instalments to avoid hardship. No doubt in Union of India v. Sujatha Vedachalam this Court did not bar the recovery of excess pay, but directed recovery in easy instalments. The said decision does not lay down a principle that relief from recovery should not be granted in regard to emoluments wrongly paid in excess, or that only relief in such cases is grant of instalments. A direction to recover the excess payment in instalments or a direction not to recover excess payment, is made as a consequential direction, after the main issue relating to the validity of the order refixing or reducing the pay/allowance/pension is decided. In some cases, the petitioners may merely seek quashing of the order refixing the pay and may not seek any consequential relief. In some cases, the petitioners may make a supplementary prayer seeking instalments in regard to refund of the excess payment if the validity of the order refixing the pay is upheld. In some other cases, the petitioners may pray that such excess payments should not be recovered. The grant of consequential relief would, therefore, depend upon the consequential prayer made. If the consequential prayer was not for waiving the excess payment but only for instalments, the court would obviously consider only the prayer for instalments. If any decision which upholds the refixation of pay/pension does not contain any consequential direction not to recover the excess payment already made or contains a consequential direction to recover the excess payment in instalments, it is not thereby laying down any proposition of law but is merely issuing consequential direction in exercise of judicial discretion, depending upon the prayer for consequential relief or absence of prayer for consequential relief as the case may be, and the facts and circumstances of the case. Many a time the prayer for instalments or waiver of recovery of excess is made not in the pleadings but during arguments or when the order is dictated upholding the order revising or refixating the pay/pension. Therefore, the decision in Sujatha Vedachalam will not come in the way of relief being granted to the pensioners in regard to the recovery of excess payments.” (Emphasis supplied) 11. It has also been held by Hon'ble The Supreme Court in the case of Purshottam Lal Das Vs State of Bihar reported in (2006) 11 SCC 492 at paragraphs 7, 10 and 11 as under:- “7. So far as the recovery is concerned, in the normal course if the promotion/appointment is void ab initio, a mere fact that the employee had worked in the post concerned for long cannot be a ground for not directing recovery. The cases relied upon by the learned counsel for the State were rendered in a different backdrop. In those cases the appellants were guilty of producing forged certificates or the appointments had been secured on non-permissible grounds. In that background this Court held that recovery is permissible. On the contrary, the fact situation of the present case bears some similarity to Sahib Ram v. State of Haryana, Bihar SEB v. Bijay Bhadur and State of Karnataka v. Mangalore University Non-Teaching Employees' Assn. 10. The 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 (sic) 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 period concerned. (Emphasis supplied) 12. It has also been held by Hon'ble The Supreme Court in the case of Syed Abdul Qadir and Others Vs. State of Bihar and Others reported in (2009) 3 SCC 475 , in paragraphs 57 to 61, as under: - “57. However, no arrears or other financial benefits shall be granted in respect of the period concerned. (Emphasis supplied) 12. It has also been held by Hon'ble The Supreme Court in the case of Syed Abdul Qadir and Others Vs. State of Bihar and Others reported in (2009) 3 SCC 475 , in paragraphs 57 to 61, 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. 59. Undoubtedly, the excess amount that has been paid to the appellant 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 appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. 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 appellant 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 appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made. 60. Learned counsel also submitted that prior to the interim order passed by this Court on 7-4-2003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some instalments/amount had already been recovered from some of the teachers. Since we have directed that no recovery of the excess amount be made from the appellant teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them. 61. In the result, the appeals are allowed in part; the impugned judgment so far as it relates to the direction given for recovery of the amount that has been paid in excess to the appellant teachers is set aside and that part of the impugned judgment whereby it has been held by the Division Bench that the amended provisions of FR 22-C would apply to the appellant teachers is upheld. We direct that no recovery of the excess amount, that has been paid to the teachers of secondary schools, be made, irrespective of the fact whether they have moved this Court or not. We also direct that the amount that has been recovered from some of the teachers, after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months from the date of receipt of copy of this judgment.” (Emphasis supplied) 13. It has also been held by Hon'ble The Supreme Court in the case of State of Bihar Vs Pandey Jagdishwar Prasad reported in (2009) 3 SCC 117 at paragraphs 16, 19, 23 and 24 as under:- “16. It has also been held by Hon'ble The Supreme Court in the case of State of Bihar Vs Pandey Jagdishwar Prasad reported in (2009) 3 SCC 117 at paragraphs 16, 19, 23 and 24 as under:- “16. Moreover, for the sake of argument, even if we consider that the respondent had fraudulently entered another date of birth in his service book, as had been alleged, it should have come to the notice of the authorities during his course of service, and not after he had attained the age of superannuation after the expiry of the date mentioned in the service book which was based on the affidavit of the respondent. To the contrary, none of the officials responsible had noticed this during his service period, even during his time of promotions when the service book was required to be inspected by the officials. Therefore, it clearly points out to the gross negligence and lapses on the part of the authorities concerned and in our view, the respondent cannot be held responsible to work beyond his date of birth as mentioned in the matriculation certificate when admittedly in the service book after the affidavit, some other date of birth was also evident. 19. It is not needed for this Court to verify the veracity of the statements made by the parties. If at all the respondent entered the second date of birth at a subsequent period of time, the authorities concerned should have detected it and there should have been a detailed enquiry to determine whether the respondent was responsible for the same. It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee. 23. It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee. 23. Without going into the question whether the appellant was justified after completion of two years from the actual date of retirement to deduct two years' salary and other emoluments paid to the respondent, we may say that since the respondent had worked during that period without raising any objection from the side of the appellant and the appellant had got works done by the respondent, we do not think that it was proper at this stage to allow deduction from his retiral benefits, the amount received by him as salary, after his actual date of retirement. 24. Considering the fact that there was no allegation of misrepresentation or fraud, which could be attributed to the respondent and considering the fact that the appellant had allowed the respondent to work and got works done by him and paid salary, it would be unfair at this stage to deduct the said amount of salary paid to him. Accordingly, we are in agreement with the Division Bench decision that since the respondent was allowed to work and was paid salary for his work during the period of two years after his actual date of retirement without raising any objection whatsoever, no deduction could be made for that period from the retiral dues of the respondent.” (Emphasis supplied) 14. It has also been held by Hon'ble The Supreme Court in the case of Paras Nath Singh Vs State of Bihar reported in (2009) 6 SCC 314 at paragraphs 4 and 5 as under:- “4. Having heard the learned counsel for the parties and considering the fact that the State authorities had allowed the appellant to work for about 10 years and paid the salary at the enhanced rate, in which the appellant had no role to play except that he had given an undertaking to the authorities that in the event his first time-bound promotion was cancelled, in that case, he would be bound to refund the same. 5. 5. Having considered the fact that the appellant was only a Class IV employee in the State of Bihar and almost an illiterate person and did not know the implications of giving such undertaking and in the absence of any fraud and misrepresentation attributed to the appellant and the amount being not so excessive, in particular Rs 1,01,529.50, out of which certain amount has already been recovered from the salary of the appellant by the State authorities, we are of the view that a lenient view should be taken and the amount already paid by the State authorities to the appellant shall not be recovered. However, whatever amount that has already been recovered, shall not be paid back to the appellant.” (Emphasis supplied) 15. It has also been held by Hon'ble The Supreme Court in the case of Registrar, Cooperative Societies, Haryana Vs Israil Khan reported in (2010) 1 SCC 440 at paragraphs 7 and 9 as under:- “7. There is no “principle” that any excess payment to employees should not be recovered back by the employer. This Court, in certain cases has merely used its judicial discretion to refuse recovery of excess wrong payments of emoluments/allowances from employees on the ground of hardship, where the following conditions were fulfilled: (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) 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. 9. What is important is, recovery of excess payments from employees is refused only where the excess payment is made by the employer by applying a wrong method or principle for calculating the pay/allowance, or on a particular interpretation of the applicable rules which is subsequently found to be erroneous. But where the excess payment is made as a result of any misrepresentation, fraud or collusion, courts will not use their discretion to deny the right to recover the excess payment.” (Emphasis supplied) 16. The Hon'ble Supreme Court has also held in the case of State of Punjab Vs. Rafiq Masih, reported in (2015) 4 SCC 334 , in paragraph 18 as under: - “18. The Hon'ble Supreme Court has also held in the case of State of Punjab Vs. Rafiq Masih, reported in (2015) 4 SCC 334 , in paragraph 18 as under: - “18. 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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.” (Emphasis supplied) 17. In view of the aforesaid decisions, no recovery can be initiated by the appellants-State as stated in the communication dated 2nd September, 2004 (Annexure 16 to the writ petition), especially when there is no allegation by the appellants of any misrepresentation by the respondent and especially when there is no allegation by the appellants that fraud was played by the respondent-employee. 18. Thus, in absence of any fraud or misrepresentation by the respondent-employee, the recovery initiated by this appellant as stated in the communication dated 2nd September, 2004 (Annexure 16 to the memo of writ petition) deserves to be quashed and set aside. These aspects of the matter have been properly appreciated by the learned Single Judge and we see no reason to take any other view than what is taken by the learned Single Judge, so far as recovery from the respondent (original petitioner) is concerned. 19. These aspects of the matter have been properly appreciated by the learned Single Judge and we see no reason to take any other view than what is taken by the learned Single Judge, so far as recovery from the respondent (original petitioner) is concerned. 19. Now, so far as fixation of payable pay scale is concerned, which is Rs.5000-8000/-, the counsel for the respondent has submitted that they have nothing much to say, because the respondent now cannot get salary as she has already retired with effect from 31st January, 2015 and the said part of the communication dated 2nd September, 2004 (Annexure 16 to the writ petition) was never challenged by way of Letters Patent Appeal by the respondent. Thus, so far as fixation of pay scale is concerned, it will remain as it is at Rs.5000-8000/-for all purposes and so far as recovery initiated by the appellants from the respondent is concerned, it is rightly quashed and set aside by the learned Single Judge. Initially, the stay was granted by the learned Single Judge and, hence, this recovery has not been made effective and interim order was confirmed by the final order in the writ petition. 20. In view of these facts, reasons and judicial pronouncements, there is no substance in this Letters Patent Appeal and the same is, therefore, dismissed.