JUDGMENT : A.S. SUPEHIA, J. 1. The present writ petition is filed seeking quashing and setting aside the recovery orders dated 08.09.2010, 21.08.2010, 31.03.2011 and 07.07.2012 and also prayed to grant regular pensionary benefits. 2. The facts of the case are that the petitioner was appointed on 25.05.1972 as an English Typist in R & B Division at Himmatnagar. He was promoted to the post of Senior Clerk vide order dated 25.05.2007. 2.1. It is the case of the petitioner that after he retired on 30.11.2009, the respondents did not pay regular pension and instead granted provisional pension benefits to the petitioner on 24.05.2010 after lapse of 6 months period though no inquiry case or Court proceedings were pending. 2.2. The pension case of the petitioner was prepared belatedly by the respondent No. 3 and it was sanctioned and the regular pension order was made on 04.05.2011. Thereafter, again additional recovery order for Rs.19,440/- was made towards so-called excess payment for the commutation of leave on 31.03.2011 which is ordered to be adjusted against leave salary payable to the petitioner on retirement by taking forced consent. 3. At the outset, learned advocate Mr. Pandit for the petitioner has submitted that the present petition is confined to the aspect of recovery only. 3.1. Learned advocate Mr. Pandit appearing for the petitioner has submitted that the petitioner was appointed in the pay-scale of Rs. 130-240/- to the post of English Typist from 1972 onwards. Subsequently, the pay-scale was revised and his scale was fixed as Rs. 260-400/- and the last pay-scale was revised as Rs. 950-1500/- by giving the effect of Revision of Pay Rules, 1987. It is submitted that the petitioner was promoted to the post to Senior Clerk on 25.05.1987 and, therefore, again his pay-scale was altered from Rs. 950-1500/- to Rs. 1200-2040/- and his pay was fixed at Rs. 1290/- with effect from 01.07.1987. Subsequently, on completion of 9 years service as typist, as per the government Resolution dated 05.07.1991, he was granted the benefit of 1st Higher Pay-Scale with effect from 01.06.1987 and his pay was fixed at Rs. 1290/- but effect was given from 01.06.1987 which was sanctioned by the Local Fund Audit. He has submitted that time and again after completion of 9 years service in the cadre of Senior Clerk, petitioner is granted the benefit of 2nd Higher Pay-Scale of Head Clerk as Rs. 1290/- but effect was given from 01.06.1987 which was sanctioned by the Local Fund Audit. He has submitted that time and again after completion of 9 years service in the cadre of Senior Clerk, petitioner is granted the benefit of 2nd Higher Pay-Scale of Head Clerk as Rs. 1400-2600/- and his pay was fixed at Rs. 1650/- with effect from 01.07.1996 which was also sanctioned by the Local Fund Audit. Thereafter, the pay-scales were revised as per the G.R. dated 07.01.1998 considering 5th Pay Commission and scale to scale his pay was revised at Rs. 5000-8000/- with effect from 01.07.1996. 3.2. Learned advocate Mr. Pandit has further placed reliance on the Rule 28 (2) of the Gujarat Civil Services (Pay) Rules, 2002 and has submitted thus: "(2) When any rule or order regulating pay is made with retrospective effect, the pay of a Government employee affected by such order or rule, shall be fixed notionally as it the rule or order were applicable in his case but the Government employee concerned shall not be called upon to refund the resultant amount of over payment on account of pay and allowances." Thus, he has submitted that a bare reading of the Rule 28 reveals that the respondent cannot recover any amount from the petitioner on account of so-called over payment and the case of the petitioner is squarely covered under this rule but the Rule is misinterpreted by the respondents in the order dated 07.07.2012 by stating that the said recovery is made for the excess payment of higher pay-scale and the Rule is applicable in case of appointment or promotion only. It is contended that the higher pay-scale scheme came into existence in lieu of promotion and the pay-scale of promotional post is paid to the Government employee and hence, the Rule for promotion is directly applicable in the higher pay-scale scheme also. Learned advocate Mr. Pandit has submitted that the excess payment was not made on the demand of the petitioner nor it has been paid because of any misleading representation and it is solely made with due sanction of the concerned authority if the same granted due to administrative lapses and negligence on the part of the respondents, then the petitioner should not be punished after retirement by snatching away his pensionary benefits and putting him into harassment. Thus, it is submitted that solely on this ground the orders are required to be quashed and set aside. 3.3. In support of his submissions, learned advocate Mr. Pandit has further placed reliance on the judgment of the Division Bench dated 17.07.2019 passed in Letters Patent Appeal No. 1400 of 2019 in case of State of Gujarat Vs. S.K. Fuletra. 4. Learned Assistant Government Pleader Mr. Goutam while placing reliance on the affidavit has submitted that the impugned orders dated 07.07.2012 passed by the Division Office and Circle Office is a "Reasoned Speaking Order." He has further submitted that the petitioner was accordingly conferred the higher pay-scale with effect from 01.07.1996 as per the Government Resolution dated 05.07.1991 and after completion of 18 years of service, he was also conferred the benefit of 2nd Higher Pay-Scale. Further, it is submitted that since the pay fixation was incorrectly done, the respondents authorities had corrected the same and ordered the recovery as specified in the impugned orders. Lastly, he has submitted that the petitioner had also given an undertaking at the time of his pay fixation that any excess payment in light of the discrepancies noticed subsequently will be refunded by the petitioner to the Government. He has further placed reliance on the judgment of the Supreme Court in the case of High Court of Punjab and Haryana and others Vs. Jagdev Singh, reported in (2016) 14 SCC 267 . 5. I have thoughtfully considered the submissions advanced by the learned advocates for the respective parties to the lis. The documents as pointed out by them are also perused. 6. The established facts that emerge from the submissions made by the learned advocates are that the petitioner was appointed in the pay-scale of Rs. 130-240/- to the post of English Typist from 1972 and subsequently, the pay-scale was revised and his pay-scale was fixed as Rs. 950-1500/- by giving the effect of Revision of Pay Rules, 1987. Thereafter, the petitioner was promoted to the post of Senior Clerk on 25.05.1987 and again his pay-scale was revised as Rs. 1200-1400/- and his pay was fixed at Rs. 1290/- with effect from 01.07.1987. 950-1500/- by giving the effect of Revision of Pay Rules, 1987. Thereafter, the petitioner was promoted to the post of Senior Clerk on 25.05.1987 and again his pay-scale was revised as Rs. 1200-1400/- and his pay was fixed at Rs. 1290/- with effect from 01.07.1987. After completion of 9 years of service, he was conferred the benefit of higher pay-scale with effect from 01.06.1987 as per the policy of the State Government introduced vide G.R. dated 05.07.1991 and he was given the benefit of first higher pay-scale and his pay was fixed at Rs. 1290/-. It is not in dispute that the pay fixation was sanctioned by the Local Fund Audit. Thereafter, the petitioner further completed 9 years of service in the post of Senior Clerk, hence, he was granted the benefit of second higher pay-scale of Head Clerk as Rs. 1400-2600/- and his pay was fixed at Rs. 1650/- with effect from 01.07.1996. The same was also sanctioned by the Local Fund Audit and the entry in the service book was also maintained. Subsequently, his pay-scale was revised as per the G.R. dated 07.01.1998 in view of the 5th Pay Commission and scale to scale was revised to Rs. 5000-8000/- with effect from 01.07.1996. Thereafter, the petitioner retired on reaching the age of superannuation on 03.03.2009. After the petitioner retired, the respondents have revised the pay-scale vide order dated 05.03.2010 and his pay was fixed at Rs. 5000/- with effect from 01.07.1996. 7. After the retirement of the petitioner, the respondents vide order dated 05.03.2010 re-fixed the pay-scale of the petitioner in pay-scale of Rs. 4000-6000/- with effect from 01.06.1996 cancelling the order dated 28.01.1998 granting 2nd Higher Pay-Scale in the pay-scale of Rs. 5000-8000/- and also ordered recovery for Rs. 79,886/- for the period 01.07.1996 to 31.05.2002. Thereafter, vide order dated 08.11.2010, pay-scale of the petitioner was fixed in the scale of Rs. 5000-8000/- and accordingly, 2nd Higher Pay-Scale was also modified with effect from 01.06.2002 and recovery of Rs. 1,18,680/- was made. The subsequent revision of pay before retirement which was granted to him was also modified and his pay was also fixed at Rs. 9300-34800/- with effect from 01.01.2006. 8. 5000-8000/- and accordingly, 2nd Higher Pay-Scale was also modified with effect from 01.06.2002 and recovery of Rs. 1,18,680/- was made. The subsequent revision of pay before retirement which was granted to him was also modified and his pay was also fixed at Rs. 9300-34800/- with effect from 01.01.2006. 8. Since the pension of the petitioner was not finalized even after retirement and his retirement benefits were withheld, vide letter dated 1.12.2010, the petitioner informed the respondent authorities that he is not in a position to pay such an huge amount, hence they may recover the aforesaid amount from his retirement benefits. He also urged that his pension case may be accordingly be finalized. 9. The amount of leave encashment was withheld on account of the recovery which he would have received on account of his retirement-. Thus, the petitioner who enjoyed his benefit for all the years right from the year 1998, when he was granted 1st Higher Pay-Scale, has been dragged into unnecessary harassment after his retirement. The petitioner retired on reaching the superannuation age on 30.11.2009 and after his retirement, when his retirement benefits were to be fixed, the respondents passed the impugned orders of recovery. It is also not in dispute that all the aforesaid orders fixing his pay-scale were verified and sanctioned by the Local Fund Audit and the entries to that effect were also made in the service book. 10. It is the contention of the State Government that the petitioner had given an undertaking at the time of conferring the benefit of higher pay scale to the effect that if it is found that the same is re-fixed incorrectly, he has to refund amount to the State Government. 11. In the considered opinion of this Court, the aforesaid contention is absolutely misconceived and the petitioner cannot be made to suffer for the administration lapses which had occurred during his service period. The retirement benefits of the petitioner were withheld on the ground of incorrect fixation of higher pay scale. The entire exercise of verification of the pay fixation was also done by the Local Fund Audit which had verified and sanctioned the pay fixation of the petitioner. The state authorities should have carried out the necessary verification when the petitioner was in service, within a short span after he was granted the benefit of higher pay scale. The entire exercise of verification of the pay fixation was also done by the Local Fund Audit which had verified and sanctioned the pay fixation of the petitioner. The state authorities should have carried out the necessary verification when the petitioner was in service, within a short span after he was granted the benefit of higher pay scale. The respondent State has also not brought to the notice of this Court that any action is taken against the erring officers, who at the relevant time have verified and sanctioned the pay-scale of the petitioner. Thus, the petitioner cannot be made to suffer for the quiescent attitude of the officers. It is also pertaining to note that prior to his retirement, the respondent No. 3 had also issued "No Due Certificate" and thereafter, when his retirement benefits were required to be paid, they withheld the leave encashment on the ground of recovery. 12. In the given facts of the case, it would, be suffice to quote Rule 28 of the Gujarat Civil Services (Pay) Rules; 2002, which reads as under:- "28. Pay when promotion or appointment is found to be erroneous: (1) Notwithstanding the provisions contained in these rules, the pay of a Government employee whose promotion or appointment to a post is found to be or to have been erroneous on the basis of facts, e.g. incorrect seniority, failure to apply any relevant rules or orders correctly, shall be regulated in accordance with the general or special orders issued by the Government in this behalf. (2) When any rule or order regulating pay is made with retrospective effect, the pay of a Government employee affected by such order or rule, shall be fixed notionally as if the rule or order were applicable in his case but the Government employee concerned shall not be called upon to refund the resultant amount of overpayment on account of pay and allowances; Provided that in the case where the erroneous promotion or appointment was given on the basis of false information furnished by the concerned Government employee; departmental action shall be taken against him and the resultant amount of overpayment on account of pay and allowances shall also be recovered from him.(emphasis supplied)." At this stage, it would be apposite to refer to the observations made by the Division Bench in the judgment dated 17.07.2019 passed in Letters Patent Appeal No. 1400 of 2019. The Division Bench after considering the judgment of the Supreme Court in the case of State of Punjab Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334 as well as the judgment cited by the learned Assistant Government Pleader in the case of High Court of Punjab and Haryana Vs. Jagdev Singh, reported in (2016) 14 SCC 267 while dealing with the similar issue and facts has observed thus: "5. Having regard to the facts and circumstances of the case and the submissions made by learned Assistant Government Pleader in the context of the finding of the learned Single Judge about recovery ordered to be initiated from the respondent, a Class-III employee, principles laid down in the case of Rafiq Masih (supra) were applied by learned Single Judge in the order impugned, which read as under: "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 hereinabove, we may, as a ready reference, summarise the following new 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 case 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." (Para 18)" 6. What is important to be seen is that recovery that is ordered in the case of Class-III and Class-IV employees (or Group-C and Group services), stands on different footing and about the recovery from the retired employees, or the employees who are due to retire within one year, as the case may be. In the present case, admittedly, the respondent-employee is Class-III employee and he succeeded before the Gujarat Civil Services Tribunal, which has assigned just reasons to quash and set aside the order of recovery of dues of Rs. 85,927/- by considering the Government Resolution dated 16.8.1994 in the context of Rule 28(1) and (2) of the Gujarat Civil Service Rules, where provisions are made about the powers conferred upon the authority under the circumstances in which pay and recovery of excess payment can be considered upon erroneous or incorrect seniority, failure to apply any relevant rules or orders correctly. Even the Government Resolution dated 16th August, 1994 is about grant of revised higher pay scale to employees in the absence of promotional avenues or limited scope of promotion, so that employees are not demoralized or stagnated in particular cadre/post. When the respondent employee was considered for pay scale of Rs. 5000-8000 instead of Rs. 4500-7000, the fact remains that earlier he was given promotion about which the authorities were aware of. Under the circumstances, it cannot be said that respondent, a Class-III employee, misrepresented his case by giving such undertaking for which recovery could be ordered. It is stated by learned counsel for the respondent that subsequently, the respondent-original petitioner became entitled to receive pay scale of Rs. 5000-8000 and was given salary accordingly. We are inclined to accept such submission and do not pass any order in that regard." 13. The Division Bench has observed that it cannot be said that a Class-III employee, misrepresented his case by giving such undertaking at the time of grant of higher pay scale for which recovery could be ordered. The Division bench while considering the provisions of Rule 28(1) and (2) of the Pay Rules, 2002 vis a vis incorrect fixation of higher pay scale and the undertaking has dismissed the letters patent appeal filed by the state. The Division bench while considering the provisions of Rule 28(1) and (2) of the Pay Rules, 2002 vis a vis incorrect fixation of higher pay scale and the undertaking has dismissed the letters patent appeal filed by the state. The stand taken by the respondents that the provision of Rule 28 of the Pay Rules, 2002 do not apply in the case of the grant of higher pay scale is misconceived since the benefits of higher pay scale is conferred to the employees in lieu of promotion when they get stagnated in service. Furthermore, an undertaking given by an employee cannot be used against him in light of the statutory provision. Such an undertaking cannot dilute the mandate of Rule 28 which bars recovery if there is erroneous fixation of pay by the state authorities. The Rule also postulates of initiation of departmental proceedings against an employee who gives false information. Thus, an undertaking given by an employee cannot be used at his detriment if the pay is fixed erroneously by the state authorities and there is no fault or misrepresentation of the employee. 14. In the present case, even if the State Government was to act on such undertaking, it should have been within a reasonable period when the Local Fund Audit had approved the pay fixation. The impugned order has been passed after a span of almost 12 years, after the pay fixation was approved by the Local Fund Audit and entries to that effect were also made in the service book. Thus, the petitioner who is a retired employee was not paid the final retirement benefits due to impugned orders passed by the respondents effecting recovery of the amount of pay fixation, which was conferred to him since 1998. The State authorities being a model employer has to act very fairly and reasonably and has to see that a retired employee is not being harassed in such a manner due to their inaction. The impugned orders are replete with impropriety and the insouciant attitude shown by the respondents towards a retired employee requires to be highly deprecated. 15. In view of the above, the impugned orders are hereby quashed and set aside. The impugned orders are replete with impropriety and the insouciant attitude shown by the respondents towards a retired employee requires to be highly deprecated. 15. In view of the above, the impugned orders are hereby quashed and set aside. Any amount which is withdrawn in view of the impugned orders shall be repaid and refunded to the petitioner with an interest of 9% from the date of recovery since the aforesaid amount has remained with the State authorities. Necessary orders in this regard shall be passed within a period of eight (08) weeks from the date of receipt of the present order. Rule made absolute.