JUDGMENT : N.V. Anjaria, J. Heard learned advocate Mr. Shivang Thacker for the petitioner and learned Assistant Government Pleader Mr. K.M. Antani for the respondent State and its authorities. 2. What is prayed in this petition is the writ of mandamus, for "directing the respondent authorities to forthwith pay to the petitioner monthly regular pension, gratuity amount, leave encashment amounts, other retirement benefits, arrears of pay towards salary, arrears of pay towards 6th Pay Commission, arrears of pay towards 7th Pay Commission and other dues of the petitioner along with interest @ 18% p.a. from the date they became due till realization." 2.1 It was observed in order dated 07th December, 2017 that grievance of the petitioner about non-payment of pension was partially attended to after issuance of notice in the petition. The grievance subsisted was that the pension case was not processed on the basis of last drawn pay and the effect of the last pay drawn was not given in the calculation of pension. 3. Noticing the facts of the case of the petitioner, the petitioner who claims to have 80% disability in his eyes, after completing his studies and obtaining M.Sc. Degree in Chemistry, Doctorate in Chemistry subject, and further screening the degree of B.Ed., came to be appointed in the government school as Assistant Teacher on 10th January, 1987. He was thereafter appointed as Teacher in the Government R.R. Lallan College, Bhuj on 02nd August, 1988 and thereafter came to be transferred to Kotak Science Colelge, Rajkot. The petitioner was sent back as Teacher in Government School at Limbasi, District Kheda in the year 2009. The petitioner was working as Teacher in Mohandas Gandhi Vidhyalaya at Rajkot until he reached the age of superannuation on 31st May, 2016. 3.1 The grievance raised in the petition was that though the petitioner was worked as above at different places, the arrears of 6th Pay towards salary as well as 7th pay arrears were not paid to him and the salary was not calculated by giving the benefit which was otherwise available to the petitioner. It appears that Special Civil Application No.15651 of 2003 was filed and thereafter another Special Civil Application No.6786 of 2009 was also initiated. Respondent No.2 Commissioner of Higher Education issued office order dated 16th July, 2009 reverting the petitioner as Teacher in the school as above. It appears that Special Civil Application No.15651 of 2003 was filed and thereafter another Special Civil Application No.6786 of 2009 was also initiated. Respondent No.2 Commissioner of Higher Education issued office order dated 16th July, 2009 reverting the petitioner as Teacher in the school as above. The petitioner had however worked as Lecturer in respondent No.5 college from 01st January, 2006 to 17th July, 2009. 4. The stand of the respondent No.3 as evinced in the affidavit-in-reply inter alia was that the petitioner served in respondent No.5 college with pay-scale of Rs.9300-34800 in the Grade Pay of Rs.5400/- and thereafter sent back to the Government Secondary School, Limbasi, where the scale was same of Rs.9300-34800 but in the Grade Pay of Rs.4400/-. It was the stand that due to some inadvertence, salary and other incidental benefits were fixed and paid in the earlier pay-scale with original grade, that is Rs.9300-34800 in the Grade Pay of Rs.5400/-. It was stated that till the petitioner reached the age of superannuation, the mistake in paying the salary to him in the said grade pay continued. It was stated that in this view, when the pension papers were received by the office concerned, petitioner was liable to be treated for the purpose of pension on the basis of the grade pay which he was actually entitled to receive. On such basis, it was contended that there was an excessive payment to the petitioner and that for that reason Rs.12,54,234/- with interest since July, 2009 to May, 2016 was required to be recovered. 4.1 The contention of the petitioner that the said recovery was effected, the petitioner was never made aware as to when it was effected, however the pension was reduced and the leave encashment was not paid. It appears that Local Fund Office sanctioned the pension and gratuity for the petitioner on 23rd March, 2017 and from 01st May, 2017, the petitioner was paid pension but it was not as per the last drawn salary. The gratuity amount was also not paid as per the last salary drawn by the petitioner. The respondents effected the recovery from the payments made to the petitioner on the ground that excess amount towards salary was paid to the petitioner. The gratuity amount was also not paid as per the last salary drawn by the petitioner. The respondents effected the recovery from the payments made to the petitioner on the ground that excess amount towards salary was paid to the petitioner. 4.2 Learned advocate for the petitioner relied on decision of this Court in Girishbhai Jivrajbhai Dave v. Bhavnagar Municipal Corporation being Special Civil Application No.13928 of 2011 decided on 05th June, 2017, in particular observations and findings in paragraph 8 thereof. Next decision which was relied on was in Abdulkadir Sultanmiya Ladman v. Government of Gujarat being Special Civil Application No.1255 of 2002 decided on 11th February, 2016 for paragraph 4 thereof. It was submitted on the basis of the principles laid down in the said decision that recovery was not permissible. Learned advocate for the petitioner next pressed into service decision of this Court in Pravinbhai Kantilal Ganatra v. State of Gujarat, (2018) 1 GLH 598 . 5. The respondents were at their receiving end when learned Assistant Government Pleader was asked whether any show-cause notice was issued to the petitioner before effecting recovery of aforesaid amount of Rs.12,54,234/-. Recovery of the said amount was made from the petitioner behind his back and petitioner was not made aware. There is no gainsaying that the petitioner was not at fault in receiving amount of salary which he received during the period from 22nd July, 2009 to 31st May, 2016. Even otherwise, the stand of the respondent is that it was due to their mistake and inadvertence that the excess amount was paid and it was sought to be recovered. 5.1 In Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 , the Apex Court observed that relief against is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employee from hardship that will be caused to him if recovery is ordered. In paragraph 59, the Court observed, disallowing recovery of what was an excess payment in that case, "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....." (Para 59) 5.2 In State of Punjab v. Rafiq Masih, (2015) AIR SC 696, the Supreme Court after surveying decision on the aspect, laid down guidelines directives in paragraph 12 of the judgment, "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 ClassIII 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 employers right to recover." (Para 12) 5.2.1 In Rafiq Masih (White Washer) (supra), the Supreme Court reaffirmed the position that where the employer had committed an error of paying to the employee more than what was due, in absence of misrepresentation or fraud at the end of the employee, recovery of such amount would be harsh and inequitable. 5.3 Emphasizing that such action would be harsh and iniquitous, it was observed having examined thus, "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. ..." (Para 7) 5.3.1 It was further observed that, "... The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. ..." (Para 8) 5.4 On the basis of law laid down in Rafiq Masih (supra) and Syed Abdul Qadir (supra), this Court in Pravinbhai Kantilal Ganatra (supra) held as under. "6. The relief against the recovery is essentially a relief in equity. The amount paid to an employee in excess of his salary or other entitlement such as increment or higher grade pay-scale would be ordered to be not recovered if such payment was not the result of employee's fault. Recovery would not be justified if the benefit availed was not upon a representation of the employee or government servant or was not the result of any fraudulent conduct on his part." 6. In view of the position of law emanates from the aforesaid principles of law laid down by the Courts, the petitioner is entitled to succeed in the petition. Recovery of the amount by the respondent from the salary of the petitioner, who has already retired and the excess payment to him was not for the reason of his culpability of whatever kind, could not have been effected. The recovery was barred in law. Consequently, the petitioner becomes entitled to the relief. 7. Recovery of the amount by the respondent from the salary of the petitioner, who has already retired and the excess payment to him was not for the reason of his culpability of whatever kind, could not have been effected. The recovery was barred in law. Consequently, the petitioner becomes entitled to the relief. 7. In the above view and in light of the reasons supplied, the petition is allowed. The respondent authorities are directed to calculate the pension of the petitioner on the basis of the last pay drawn and the amounts of pension shall be paid accordingly. Gratuity, if not paid, shall also be paid on such basis. The differential amount arising as arrears shall also be paid. The respondents are further directed to pay leave encashment and all other retiral benefits as may be admissible to the petitioner including the arrears payable towards Sixth Pay Commission and arrears concerning the Seventh Pay Commission. All such dues and arrears shall be paid within eight weeks from the date of receipt of writ of this order. It is provided that if any amount towards the above or part thereof is not paid within the time specified as above, it shall carry interest at the rate of 6% from the date of filing of the present petition, that is from 08th February, 2017. The petition stands allowed as above.