JUDGMENT : Prayer: Writ Appeals filed under Clause 15 of Letters Patent against the common order dated 02.09.2020 passed in W.P. Nos. 14739 and 14620 of 2013. 1. These appeals are preferred by the writ petitioners, whose challenge to the order revising the retrospective date of their promotion and consequent recovery of the excess amount paid, was rejected by the writ Court. 2. The appellants, who were the writ petitioners, were appointed as Laboratory Assistants on various dates in the second respondent Society. Later, when they obtained a Diploma in Medical Laboratory Technician Course (in short “DMLT”) they were initially granted promotion to the post of Laboratory Technician on 20.04.2010. While so, some of the persons like the writ petitioners made representations to the competent authorities requesting to give retrospective promotion from the date on which they obtained the requisite qualification of DMLT. The authorities also considered the same and issued a revised promotion order on 30.08.2010 revising the date of promotion from the date of acquirement of DMLT by the writ petitioners. 3. While so, the authorities found that there was no post available on the date from which the retrospective effect of promotion was given and that the writ petitioners could not be accommodated. Hence, a Show Cause Notice (SCN) was issued on 11.02.2013 calling upon them to show cause as to why their promotion should not be revised and the excess amount recovered. Subsequently, after enquiry, the order of reversion of promotion and direction for the recovery of excess amount paid was passed. 4. These appeals are filed against the common order passed in W.P. No. 14620 and 14739 of 2013, wherein, the challenge laid to the orders impugned, which were reversing the promotion and recovering the excess amount paid was rejected. No appeal is filed by the writ petitioner in W.P. No. 16376 of 2013. 5. While the writ petitioners were content with the promotion from the original date of promotion by not claiming promotion from the retrospective date, they were aggrieved by the action of recovery of payment made to them. Their only contention is that it is the management, which had granted the retrospective promotion and made the proportionate payment also, hence, they cannot penalise the writ petitioners for no fault of theirs. 6. Their only contention is that it is the management, which had granted the retrospective promotion and made the proportionate payment also, hence, they cannot penalise the writ petitioners for no fault of theirs. 6. The learned Special Government Pleader appearing for the respondents contended that some of the writ petitioners acquired their qualification in the year 2005 and some of them acquired the qualification in the year 2007, and therefore, it is not the date of acquirement of the qualification to be taken as the crucial date, but it is only the availability of the vacancy, which is the crucial date for the grant of promotion. As stated earlier, on the date of retrospective promotion, there was no vacancy available, hence, immediately, the authorities after giving them due opportunity of hearing, passed the orders impugned in the writ petitions. As the writ appeals are only directed against the recovery of the amount, this Court is not delving into the aspect of the availability of the vacancies on the date, when the writ petitioners acquired the required qualification. 7. Therefore, the only question that has to be considered is whether the authorities have got power to recover the excess money paid, in view of the retrospective promotion granted to the writ petitioners. 8. Both the parties placed reliance on the judgment of the Hon’ble Supreme Court in State of Punjab and Others vs. Rafiq Mashi (White Washer) and Others, (2015) 4 SCC 334 . Though the claim of the appellants was that on the date of acquirement of their qualification, they were eligible for promotion, the respondents pointed out that the promotion can be granted only when there are vacant posts. It is also not the case of the writ petitioners that there were enough vacancies existed on the date, they acquired the required qualification. 9. It is also not out of place to point out that the retrospective promotion was given to the writ petitioners based on their representations to grant the same from the date of acquirement of the qualification. 9. It is also not out of place to point out that the retrospective promotion was given to the writ petitioners based on their representations to grant the same from the date of acquirement of the qualification. The authorities, who had the exclusive knowledge about the existence of the vacancies, ought to have considered the same before issuing the order of retrospective promotion and also paying the salary commensurate with the post, and the sudden withdrawal of the same and recovery of the excess money paid would deprive the interest of the writ petitioners and therefore, requested that the same cannot be proceeded with. 10. In the decision in White Washer’s case (cited supra), it has been categorically held that if the mistake of making a wrongful payment is deducted 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 payment mistakenly made to the employee. Based on the above judgment, the learned Single Judge has held that prior to the order of retrospective promotion, the petitioners were in the discharge of duties of the Laboratory Assistant, but they were paid the salary of Laboratory Technician. When the petitioners having discharged the duties of the post of Laboratory Technician, they are not entitled to receive any excess amount. However, the respondents had issued the SCN to the writ petitioners within an year and half and immediately found out the mistake committed by them and intimated the same to the beneficiaries. 11. In the case referred supra, (White Washer’s case) the Hon’ble Supreme Court held as follows: “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). 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.” 12. Mr. Syed Mustafa, learned Special Government Pleader appearing on behalf of the respondents, would contend that the post of Laboratory Technician comes under Group B category. Therefore, the above referred case will not be strictly applicable to the present facts. It is to be stated that even otherwise, the recovery of the excess amounts paid to the employees belonging to the Group C and D categories is not permissible, not because they are entitled to, but the relative hardship any employee would face due to the recovery. The employees in the category of Group C and D would spend all their salary for the upkeep of their family, especially when they receive the payment for a longer period, genuinely, believing that they are entitled to it. Therefore, any recovery at a later point would only cause undue hardship to the employees. While that is the principle laid down in the White Washer’s case, in the case on hand, the retrospective promotion was issued based on the representation of the writ petitioners without verifying the vacancy position on that date. Once the authorities realized the mistake within an year and half, they have taken action to recover the same. While that is the principle laid down in the White Washer’s case, in the case on hand, the retrospective promotion was issued based on the representation of the writ petitioners without verifying the vacancy position on that date. Once the authorities realized the mistake within an year and half, they have taken action to recover the same. The writ petitioners are not aggrieved by the order of recalling the retrospective promotion, their only grievance is the recovery. 13. When the retrospective promotion itself cannot be sustained, whether the excess amount paid can be recovered or not? 14. In this regard, it would be appropriate to advert to the decision of the Hon’ble Supreme Court in Registrar, Cooperative Societies Haryana vs. Israil Khan and Others, (2010) 1 SCC 440 , wherein, it has been held as follows: “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. 8. In Col. B.J. Akkara (Retd.) vs. Govt. of India, (2006) 11 SCC 709 , this Court explained the reason for extending such concession thus: 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. 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. (Emphasis supplied) 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. 10. In these cases, the Rules specifically provided that the employees should be paid a consolidated salary. Therefore without amendment of the Rules, the Managing Committees could not have passed a resolution for giving the benefit of regular pay scales that too with retrospective effect to the employees. Further, the Societies did not have the funds to make such payments and illegally diverted the funds made available for disbursal of loans to farmers, for the purpose of making such excess payment to the employees. When the resolution extending such benefit was passed and the amounts earmarked for loans for farmers were diverted for making payment to the employees, the Managing Committees as well as the employees were aware that the resolution and consequential payment was contrary to the Rules. There was no question of any wrong calculation or erroneous understanding of the legal position. Most of the employees who received similar relief have refunded or have agreed to refund the excess payment. Making any exception in the case of the respondents would also lead to discrimination.” 15. There was no question of any wrong calculation or erroneous understanding of the legal position. Most of the employees who received similar relief have refunded or have agreed to refund the excess payment. Making any exception in the case of the respondents would also lead to discrimination.” 15. Applying the principles enunciated in the above case to the cases on hand, the period of excess payment is less than eighteen months and it is not the case of the writ petitioners that they are retired, since all of them are continuing in service and the excess payment is made only by mistake without verifying the vacancy position, the writ petitioners/the appellants cannot have any grievance in the impugned order passed. Therefore, it is open to the authorities to recover the excess amount paid to the appellants without causing any hardship to the day-to-day living. 16. In view of the aforesaid discussion, the writ appeals are dismissed as devoid of merits and the order of the learned Single Judge is confirmed in so far as the appellants are concerned. No costs. Consequently, connected miscellaneous petitions are closed.