JUDGMENT Sandeep Sharma, J. - Being aggrieved and dissatisfied with the order dated 27.3.2012 passed by Engineer-in-Chief, I & PH Department, Shimla, H.P., whereby a sum of Rs. 88,838/- has been ordered to be deducted from the arrear of revised pay scale of the officer i.e. petitioner, petitioner has approached this Court in the instant proceedings, praying therein following reliefs:- (i) That order dated 27.3.2012 may kindly be quashed and set-aside and respondents may kindly be directed to refund a sum of Rs.88,838/- to the petitioner alongwith interest at some Nationalized bank; (ii) That the respondents may kindly be burdened with costs; 2. Certain undisputed facts, which are necessary for adjudication of the case are that initially petitioner joined services as Assistant Engineer in the respondent department on 23rd January, 1979. Person namely, Sh. Rajesh Kamal Sharma also joined the post of Assistant Engineer as Direct Recruit on 28.7.1981. On 1.7.2009, final seniority list as it stood on 31.12.2008 was circulated by the respondent department, wherein name of the petitioner finds mention at Sr. No.7, whereas above named person Sh. Rajesh Kamal Sharma at Sr. No.13 of the seniority list. 3. It is not in dispute that subsequently both the petitioner as well as person namely, Sh. Rajesh Kamal Sharma were promoted as Superintending Engineer in the I & PH Department. On 30.6.2010, petitioner retired from the respondent department, but on 12.10.1999 he after having come to know that person namely, Sh. Rajesh Kamal Sharma, who was junior to him is drawing higher salary, represented the competent authority, praying therein for stepping up of his salary qua Sh. Rajesh Kumar Sharma. 4. Consequent upon aforesaid representation made by the petitioner, his pay was re-fixed by step up w.e.f.26.6.1996, as is evident from the office order dated 19.3.2011 (Annexure R-3). However, respondent department subsequently vide communication dated 28th September, 2011 informed the petitioner (Annexure P-4) that after having carefully perused the Due Drawn Statement, it has transpired that sum of Rs. 88838/-( Rupees Eighty Eight Thousand Eight Hundred Thirty Eight only) is recoverable from you. Engineer-in-Chief I& PH Department by way of aforesaid communication specifically stated in the aforesaid communication that before further action is taken, you may furnish your comments within a period of thirty days. 88838/-( Rupees Eighty Eight Thousand Eight Hundred Thirty Eight only) is recoverable from you. Engineer-in-Chief I& PH Department by way of aforesaid communication specifically stated in the aforesaid communication that before further action is taken, you may furnish your comments within a period of thirty days. Pursuant to aforesaid communication, petitioner filed reply dated 20.12.2011 (Annexure P-5) stating therein that since there was no misrepresentation on his part when the re-fixation was done in year 1996, amount paid to him on account of step up cannot be recovered at this stage, as has been held by the Hon'ble Apex Court in Sahib Ram vs. State of Himachal Pradesh, (1995) Supp1 SCC 18 . While filing aforesaid reply, petitioner prayed to the competent authority that recovery as pointed out vide letter dated 28.9.2011 may be waived of because recovery cannot be affected at the belated stage as per the judgment rendered by Hon'ble Apex Court in Sahib Ram's case supra. Competent authority after having taken note of aforesaid reply filed by the petitioner as well as judgment rendered by Hon'ble Apex Court in Sahib Ram's case supra, rejected the claim of the petitioner vide order dated 27.3.2012 (Annexure P-6). Vide aforesaid order, competent authority observed that pay of Sh. G.S.Guleria, Superintending Engineer (petitioner) was stepped up on his request and after having obtained his undertaking dated 5.9.2009 (Annexure R-5). In the aforesaid background, petitioner approached this Court in the instant proceedings, praying therein for the relief(s), as has been reproduced hereinabove. 5. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that request of step up of pay scale came to be made on behalf of the petitioner vide communication dated 12.10.1999 (Annexure R-1). Perusal of aforesaid communication reveals that petitioner after having come to know that person namely, Sh. Rajesh Kamal Sharma, Superintending Engineer, I & PH Circle ,Bilaspur, who is junior to him was drawing more pay in the revised pay scale w.e.f.1.6.2006, requested the department to step up his pay to bring at par with the person namely, Sh. Rajesh Kamal Sharma. 6. Though, Superintending Engineer, I & PH Circle, Reckong Peo was not competent to grant higher time scale to the petitioner because competent authority to grant higher time scale is the Govt. Rajesh Kamal Sharma. 6. Though, Superintending Engineer, I & PH Circle, Reckong Peo was not competent to grant higher time scale to the petitioner because competent authority to grant higher time scale is the Govt. i.e. Principal Secretary (IPH) to the Government of Himachal Pradesh, but record reveals that Superintending Engineer, I & PH Circle, Reckong Peo inadvertently granted higher time scale to the petitioner vide letter dated 9.12.1999 and as such, no benefit, if any, can be given to the petitioner in terms of the judgment passed by the Hon'ble Apex Court in Sahib Ram's case supra. 7. Careful perusal of office order dated 19.3.2011, clearly reveals that pay fixation made in the case of the petitioner pursuant to his request was accepted by the respondent-department subject to the verification by the Audit Office. It specifically stands recorded in the aforesaid communication that if over payment is found as a result of incorrect pay fixation by the audit office, the Government shall have the right to recover the over payment from his any dues without serving any notice to the Officer concerned. 8. Besides above, respondent department while re-fixing the pay of the petitioner also took an undertaking from him, which is available at page No.57 of the paper book (Annexure R-5). Perusal of Annexure R-5 i.e. Form of undertaking given by the petitioner on 5.9.2009, clearly reveals that he undertook before the authority that at the time of re-fixation of his pay or any excess payment detected in the light of discrepancies noticed subsequently or due to any reason, will be refunded by him to the government either by adjustment against future payments due to him or otherwise failing which DDO concerned shall have every right to recover the said amount of over payment in monthly installments from his monthly salary or from any other pay arrears. Needless to say, once the petitioner accepted the grant of step up, natural consequences flowing from such step up are also to be accepted by him being inextricable. Respondents have categorically stated in the impugned order that perusal of Due Drawn Statement has revealed that sum of Rs. 88838/- is recoverable from you and as such, you are liable to refund the same being excess payment. 9. Respondents have categorically stated in the impugned order that perusal of Due Drawn Statement has revealed that sum of Rs. 88838/- is recoverable from you and as such, you are liable to refund the same being excess payment. 9. Leaving everything aside, bare perusal of the averments contained in the petition, nowhere suggest that the petitioner has been able to dispute the contention of the respondent department that sum of Rs.88838/- is recoverable from him, rather claim of the petitioner is that since he had not misrepresented at the time of making representation for stepping up to bring his pay at par with the person namely, Rajesh Kamal Sharma, who is/was admitted junior to him, no recovery, if any, can be affected at this stage on account of excess payment. 10. Reply filed by the respondents reveals that the competent authority to grant higher/ time scale of Rs. 14300- 400-15900-450-18150 on completion of 14 years of service as Assistant Engineer/ S.D.O/Executive Engineer is the government and not the Superintending Engineer, I & PH Circle, Reckong Peo, but it appears that the petitioner misrepresented to his Superintending Engineer, I& PH Circle, Reckong Peo vide representation dated 12.10.1999 (Annexure R-1) for granting higher/time pay scale of Rs. 14300-400- 15900-450-18150 on completion of 14 years of service as Assistant Engineer/S.D.O/Executive Engineer. Superintending Engineer, I& PH Circle, Reckong Peo without there being any authority accepted the representation of the petitioner and granted aforesaid pay scale to the petitioner. Superintending Engineer, I& PH Circle, Reckong Peo after granting higher pay scale to the petitioner raising his pay from Rs. 11380/- per month (as per fitment table) to Rs. 14300/- per month w.e.f.1.1.996, inadvertently granted his annual increment after completion of only one month i.e. w.e.f.1.2.1996, whereas such increment ought to have been granted after completion of 12 calendar months, which action of Superintending Engineer, I& PH Circle, Reckong Peo was in complete violation of Government of India's Orders No.(6) 2 of Fundamental Rule-23(FR-23), which provides that where a pay is fixed at the minimum to the revised/higher pay scale, next annual increment is admissible only after completion of 12 calendar months. In view of the aforesaid statutory rule, it was incumbent upon the petitioner to point out wrong fixation, but he despite having known the rules chose to remain silent. In view of the aforesaid statutory rule, it was incumbent upon the petitioner to point out wrong fixation, but he despite having known the rules chose to remain silent. Since petitioner has not raised any dispute with regard to quantum of amount allegedly recoverable from him on account of excess payment, this Court sees no reason to go into the aforesaid aspect of the matter. 11. Mr. Karan Singh Parmar, learned counsel representing the petitioner while placing reliance upon the judgment rendered by Hon'ble Apex Court in State of Punjab vs. Rafiq Masih,2015 14 SCC 334 , vehemently argued that recovery from the retired employees or employees, who are due to retire is impermissible, especially when there was no misrepresentation , if any, on the part of the petitioner at the time of claiming benefit of step up in his favour. No doubt, in the aforesaid judgment passed by Hon'ble Apex Court, it has been held that recovery from retired employees, or employees, who are due to retire within one year of the order of recovery is impermissible in law. 12. But Hon'ble Apex Court in subsequent judgment dated 29th July, 2016 passed in case titled High Court of Punjab and Haryana and another versus Jagdev Singh, has clarified that principle enunciated in Proposition (ii) cannot be made applicable to the situation where the officer to whom payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. In the aforesaid judgment Hon'ble Apex Court has held that if the officer has furnished an undertaking while opting for the revised pay scale, he is bound by the undertaking given by him. 13. At this stage, it would be relevant to reproduce para No.9 to 11 of the aforesaid judgment hereinbelow:- "9. The submission of the Respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the state. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the Respondent was clearly on notice of the fact that a future re-fixation or revision may warrant an adjustment of the excess payment, if any, made. 10. In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc1. this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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." (emphasis supplied). 11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking". 14. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking". 14. In the case at hand, there is ample material available on record suggestive of the fact that competent authority while passing the order of stepping up of the pay of the petitioner specifically put him to the caveat that pay in question is subject to the verification by the audit office and if any over payment is found as a result of incorrect pay fixation by the audit office, the Government shall have the right to recover the over payment from his any dues without serving any notice. Besides above, petitioner also furnished an undertaking while accepting revised pay scale that any excess payment that may be found as a result of incorrect fixation of pay or any excess payment detected in the light of discrepancies noticed subsequently or due to any excess will be refunded by him to the Government either by adjustment against future payments due to him or otherwise, failing which the DDO concerned shall have every right to recover the said amount of overpayment in monthly installments from his monthly salary or from other pay arrears. 15. Consequently, in view of the aforesaid law laid down by the Hon'ble Apex Court in Jagdev Singh's case supra, submission of learned counsel representing the petitioner that since pay fixation was done without there being any misrepresentation, no recovery can be effected even, if pay of the employees was wrongly fixed, cannot be accepted. Record of the case reveals that competent authority before issuing order of recovery afforded due opportunity of being heard to the petitioner, who while replying to notice has no where disputed the amount determined by the respondent-department on account of wrong fixation, rather has simply stated that there is no misrepresentation on his part when fixation was done in the year, 1996. 16. Accordingly, in view of the above, the present petition is dismissed alongwith pending applications, if any.