JUDGMENT : Sharad Kumar Sharma, J. The petitioner has retired from his service on 30.06.2015, after rendering services on the post of Patwari, Kshetra Bhagoti, Tehsil Chaukhutiya, District Almora. His superannuation was followed by his past 35 years services rendered from his initial date of recruitment i.e. 23.05.1980. After his retirement, it is the case of the petitioner that he has completed all the requisite formalities regarding pension papers by supplying the documents to enable the authorities to process his application for the grant of post retrial dues payable to him under law. 2. It is the case of the petitioner that Respondent no. 3 after finding the documents in order, forwarded the same vide letter dated 10.02.2016 to respondent no. 4 who after due processing of his documents his post retrial dues were computed. But by virtue of the letter of the Chief Treasury Officer, Almora i.e. respondent no. 4 dated 02.04.2016 certain discrepancies were pointed out with regard to the remittance of the post retrial dues to the petitioner, thus respondent no. 4 returned documents for removal of the defects. 3. It is based on the letter of Chief Treasury Officer, Almora dated 02.04.2016 the respondent no. 3 has contended that the matter was referred to Joint Magistrate, Ranikhet vide his letter dated 08.04.2016 and on the basis of inter se communication between respondent no. 3 and the Joint Magistrate a detailed office note was submitted from his office on 17.05.2016, he replied the matter observing that probably as far as the petitioner is concerned, in pursuance to Government Order No. 395 dated 17.10.2008, para 10 only parity of scale was given to the petitioner. Hence therefore a detailed office note is said to have been prepared on 03.06.2016 by Joint Magistrate and as per the opinion extended by the Sub-Treasury Officer, Ranikhet, where it was found that the Pay Protection was granted to the petitioner by granting him the scale as paid to his junior, it was done by invoking para 22-B of the financial handbook and the approval granted thereto after the endorsement made by the Joint Magistrate, certain anomalies are said to have occurred which have been pointed out in the payments thus made in 2011. Based upon the report of the Treasury Officer dated 02.04.2016 as well as the report of the Joint Magistrate, Ranikhet dated 03.06.2016 the respondents had stopped the remittance of the post retrial dues to the petitioner, when the same was not paid, and the petitioner and his family was facing financial crises, he represented his case for releasing of the post retrial dues on 22.06.2016 before respondent 3. 4. While taking cognizance to the representation dated 22.06.2016 as submitted by the petitioner to respondent no. 3, there was yet again another communication made by respondent no. 2 on 08.07.2016 to respondent no. 3 to solve the controversy and to do the needful at the earliest to ensure that there is a timely remittance of the post retrial dues to the petitioner who has retired from his services on 30.06.2015. It was ultimately on scrutiny of the documentation held inter se between respondent no. 3 and 4, the respondent no. 3 had issued a letter on 15.07.2016 wherein he has opined that the revised pay fixation as given to the petitioner with effect from 2011 was wrongly made and consequently an excess amount of Rs. 2,55,287/- has been paid to the petitioner. It was further observed that the said sanction which was granted could not have been made and it is due to the wrongful payment it is the state’s exchequer which has suffered a loss and it was submitted in the said letter dated 15.07.2016 that the petitioner’s pensionary papers could only be processed when the action is taken for recovery of the amount paid in excess to the petitioner. The operative portion of the order dated 15.07.2016 reads as under: **vr% izdj.k esa fu;ekuqlkj uksV ‘khV rS;kj dj isa’ku i=koyh ij vafdr vkifRr;ksa ds laca/k esa rglhynkj pkS[kqfV;k ,oa mi&dks”kkf/kdkjh fHkfd;klS.k ls O;k[;k izkIr gksus ds mijkar] rglhynkj pkS[kqfV;k }kjk vius dk;kZy; i=kad la[;k eSeks@is’kdkj@2015&16 fnukad 9 tqykbZ] 2016 }kjk ek0 mPp U;k;ky; esa flfoy fel fjV fifV’ku la[;k 227@,l,l@2014 ¼lySD’ku xzsM dk ykHk½ ds Øe esa ekeyk ek0 mPp U;k;ky; esa fopkjk/khu gksus dh O;k[;k miyC/k gSA rFkk mi&dks”kkf/kdkjh fHkfd;klS.k }kjk i=koyh dk ijh{k.k mijkUr lefiZr vkns’k ,oa osru fu/kkZj.k dh dk;kZy; izfr;ka izkIr u gksus dh n’kk esa NBs osrueku ykxw gksus ds fnukad 1-1-2006 ls iqu% la’kksf/kr osru fu/kkZj.k dj ,oa jktLo iqfyl laoxZ ds iquxZBu@osrueku mPphdj.k gksus ds QyLo:i vukf/kd`r :i ls vf/kd Hkqxrkfur osru :i;k 2]55]257-00@& ¼nks yk[k iNiu gtkj nks lkS lrklh :i;k½ dh olwyh dh tkuh gSA ftls dks”kkxkj pkyku ls jktdh; dks”k esa tek dj dks”kkf/kdkjh }kjk lR;kfir izfr bl dk;kZy; dks miyC/k djkuk lqfuf’pr djsaA ftlds mijkUr gh isa’ku i=koyh ij vafdr vkifRr;ksa dk fuLrkj.k dj eq[; dks’kkf/kdkjh@dks’kkf/kdkjh bZ&isa’ku flLVe vYeksaM+k dks izsf”kr dh tk ldsA foyEc dh n’kk esa iw.kZ mRrjnkf;Ro vkidk jgsxkA** 5. The letter of Sub-Divisional Magistrate, Bhikiyasain, District Almora i.e. respondent no. 3 contemplating a recovery of Rs. 2,55, 287/- as issued on 15.07.2016, was served upon the petitioner on 27.07.2016 wherein the respondent no. 3 has reiterated that as a consequence of faulty revised pay fixation, an excess amount of revised fixation, due to enforcement of 6th pay commission has been paid to the petitioner. It was thereafter that on 12.08.2016 respondent no. 2 after considering the contention of the petitioner with regard to the post retrial dues has passed an order for release of the provisional pension to the petitioner, while doing so it is the case of the petitioner that in his request dated 27.07.2016, he has demanded the details of excess payment of revised scale. The application of the petitioner for provisional pension was based on the fact that petitioner had to meet various family liabilities narrated therein in his letter dated 27.07.2016. 6. Though the petitioner has referred about the Writ Petition (S/S) No. 227 of 2014 filed by the petitioner for grant of the selection grade but the respondent no. The application of the petitioner for provisional pension was based on the fact that petitioner had to meet various family liabilities narrated therein in his letter dated 27.07.2016. 6. Though the petitioner has referred about the Writ Petition (S/S) No. 227 of 2014 filed by the petitioner for grant of the selection grade but the respondent no. 2 while taking the impugned action of directing recovery of excess amount had overruled the defence taken by the petitioner pertaining to the impact of the pendency of the Writ Petition (S/S) No. 227 of 2014 by holding thereof in his letter dated 04.10.2016 that the issue at hand happens to be absolutely distinct to that involved in the pending in Writ Petition (S/S) No. 227 of 2014 which was confined to the grant of selection grade had nothing to do with the excess amount paid. 7. After the aforesaid correspondences it was on 05.10.2016 that the pension papers of the petitioner were processed by respondent no. 3 and it was sent to the office of respondent no.4 after removing the discrepancies as pointed out pertaining to the excess amount paid to the petitioner. After various phases respondent no. 4 by his letter dated 25.10.2016 has return the pension papers of the petitioner after raising certain objections requesting respondent no. 3 to resubmit the same, clarifying the fact pertaining to the mode of the settlement of the amount of the pensionary dues without taking into consideration the fact of the excess payment having been made to the petitioner. On a claim being raised by the petitioner for the payment of retrial dues by his representation dated 26.10.2016, the respondent no. 4 yet again vide his communication dated 08.11.2016, has raised almost an identical objection to the effect that the pension could not have been settled due to the excess amount paid to the petitioner. However, the respondent no. 4 i.e. Chief Treasury Officer, Almora by his order dated 2/3.02.2017 had sanctioned the pensionary benefits including pension, gratuity and commutation but the said payment has only been made after showing the recovery of Rs. 2,55,287/- which finds reference in Annexure 16 to the writ petition reads as under:- Claiment (Gratuity) Name of Gratuity Claiment Relation with Pension/Family Pension Payments UK/13/30062015/09278 Mr. Amar Nath Singh Bisht Self Total Rs.442481/- Provisional Amount Rs.0 Recovery Amt.:> Total Recovery Amount :-255287 Withheld Amount Rs.0 Net Amount Rs.442481/- Rs. 2,55,287/- which finds reference in Annexure 16 to the writ petition reads as under:- Claiment (Gratuity) Name of Gratuity Claiment Relation with Pension/Family Pension Payments UK/13/30062015/09278 Mr. Amar Nath Singh Bisht Self Total Rs.442481/- Provisional Amount Rs.0 Recovery Amt.:> Total Recovery Amount :-255287 Withheld Amount Rs.0 Net Amount Rs.442481/- Rs. Four Lac Forty Two Thousand Four Hundred Eighty One Only 8. Consequent to the deductions made of Rs. 2,55,287/- the retrial dues were remitted to the petitioner. It is this communication of settlement of pensionary dues made on 02/03.02.2017 after making the deduction of Rs. 2,55,287/- which as per petitioner gave a cause of action to the petitioner for the first time to file a writ petition questioning the recovery of the amount made by the respondents by adopting said mode of recovery while settling the post retrial dues by respondent no. 4. The contention of the learned counsel for the petitioner is that the amount which was paid to him by invoking Clause 22-B of the Financial Hand Book, while bringing parity to the salary as paid to his junior colleagues though it was on his claim raised by representation but it was a conscious decision which was taken by the respondent authorities and the grant of benefit in pursuance to the decision on the representation was otherwise a benefit which was granted to him which was permissible and enforceable under law, he further submits that in the decision making process taken by the respondents on the representation of the petitioner it was their exclusive decision after application of mind it was not motivated by any fraud or misrepresentation which could be attributed to the petitioner and he was not at all instrumental in soliciting a decision in any manner whatsoever. He submits that in an eventuality if any amount which has been paid to him in excess which is alleged by the respondents it cannot be recovered by the respondents after his retirement and that too without a due process of law and after an opportunity of hearings as the recovery itself will have civil consequence. In support of his contention, the learned counsel for the petitioner places reliance on a judgment as reported in 2015 (4) SCC 334 in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others in its para nos. In support of his contention, the learned counsel for the petitioner places reliance on a judgment as reported in 2015 (4) SCC 334 in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others in its para nos. 7, 10, 12, 13, 14, 16 and 18 held as under:- “7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction Under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court. 10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court Under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India. 12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar (2009) 3 SCC 475 , wherein this Court recorded the following observation in paragraph 58: “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 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India (1994) 2 SCC 521 , Union of India v. M. Bhaskar (1996) 4 SCC 416 , V. Ganga Ram v. Director (1997) 6 SCC 139 , Col. B.J. Akkara (Retd.) v. Govt. of India (2006) 11 SCC 709 , Purshottam Lal Das v. State of Bihar (2006) 11 SCC 492 , Punjab National Bank v. Manjeet Singh (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur (2000) 10 SCC 99 . (Emphasis supplied) 13. First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. (Emphasis supplied) 13. First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee. 14. In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India (1994) 2 SCC 521 , wherein this Court observed as under: 11. Although we have held that the Petitioners were entitled only to the pay scale of Rs. 14. In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India (1994) 2 SCC 521 , wherein this Court observed 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) It is apparent, that in Shyam Babu Verma's case (supra), the higher pay-scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay-scale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India. 16. This Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows: “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. 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. 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.” (Emphasis supplied) Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation. 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 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.” 9. An identical preposition has been laid down by the Hon’ble Apex Court as reported in 2009(3) SCC 475 in the case of Syed Abdul Qadir and others Vs. State of Bihar and others in para 59 wherein too the Hon’ble Apex Court has held that if any excess amount is paid to an employee at the wisdom of the employer without there being any play of misrepresentation or fraud on part of the employee, he would not be made liable to pay back the money paid in excess as the employee cannot be held responsible for any excess amount paid on the decision taken by the employer. 10. 10. The learned counsel for the respondents has submitted that in the instant case, the recovery of the amount would be justified for the reason that the petitioner has extended consent to withdraw the amount from his post retrial dues. Meaning thereby what he wants to submit is that in principle the petitioner has accepted the fact that the amount was paid in excess way back in 2011. The stress which has been made by the respondent on the consent extended by the petitioner will not justify the action of recovery of the amount paid by respondent on their own decision that too when they have considered the impact of Rule 22-B by bringing the parity of the salary of the petitioner way back in 2011. 11. Extension of consent would be of no significance because this Court cannot be oblivious of the fact, as to what stress and difficulty a retired employee faces when his financial source is completely stopped and he has to meet various family liabilities at old stage, ailment, marriage of children etc. as narrated by the petitioner in one of his representations. Here, in the given circumstances, the consent given will not be a consent which acquires the status of waiver, and also because when the amount sought to be recovered was paid based on the decision of respondents taken as back in 2011. 12. There is another reason for that if the payment was made way back in 2011 and it was wrongly made to the petitioner then the respondents ought to have taken an action for the recovery of the amount at an appropriate stage and within a reasonable time. Sitting over the matter and waiting for the employee to attain the age of superannuation and then enforcing the recovery of the mount which have been paid by them in excess would be arbitrary and would cast upon an unnecessary financial burden on a retired employee. Hence too the recovery sought to be made by the respondent of the alleged excess amount paid would be contrary to the ratio of law laid down by the Hon’ble Apex Court in a judgment as cited above. 13. In that view of the matter, the writ petition succeeds and is allowed. A writ of mandamus is issued to the respondents to refund back the amount of Rs. 13. In that view of the matter, the writ petition succeeds and is allowed. A writ of mandamus is issued to the respondents to refund back the amount of Rs. 2,55, 287/- which has been deducted by the respondent from the pensionary benefits of the petitioner. The remittance of the amount would be ensured within a period of six weeks from today. However, there would be no order as to costs.