JUDGMENT : ALEXANDER THOMAS, J. The Guruvayoor Devaswom Board Administration and its Deputy Administrator have filed the instant intra court appeal under Sec.5(i) of the Kerala High Court Act, so as to impugn the judgment dated 09-11-2020 rendered by the learned Single Judge in W.P(C)No.9256/2019 filed by R1 herein (writ petitioner). 2. Heard Sri.T.K.Vipindas, learned Standing Counsel for the Guruvayoor Devaswom Board appearing for the appellants/respondents 2 to 4 in the W.P(C), Sri.K.Sajan Varghese, learned Advocate appearing for R1 herein/writ petitioner and Sri.B.Vinod, learned Senior Government Pleader appearing for R2 & R3 herein/R1 & R5 in the W.P(C). 3. The case set up by the 1st respondent herein (writ petitioner) in the abovesaid Writ Petition (C) is broadly as follows: That he was appointed initially as Health Assistant in the Guruvayoor Devaswom on 21-04-1983 and the said post was later re-designated as Junior Health Inspector Grade-II. Subsequently, he was promoted as Additional Health Supervisor with effect from 15-03-2002 and later he was promoted as Health Supervisor on 01-06-2003, in which post he continued till his retirement on 28-02-2018. Since his retirement benefits were not disbursed to him, the petitioner made enquiries and he came to know that objections were raised by the Senior Deputy Director of Local Fund Audit to the Devaswom authorities alleging that the petitioner has not acquired the departmental test qualification required to hold the post of Health Supervisor. Further that since he has not secured the departmental test qualification, he became legally eligible to be considered for promotion to the post of Health Supervisor only on completion of 25 years of service, which is the main requisite for securing exemption from the test qualification and that he became eligible to secure the test qualification exemption only on 10-05-2008 and the Guruvayoor Devaswom Board Administration has taken the view that the promotions and increments granted to the petitioner were erroneous and that the pensionary benefits could be fixed and disbursed only after those vital defects are rectified. For this, Ext.P3 notice was issued by R3 in the W.P(C) to the petitioner on 11-12-2018 giving him further time to produce requisite materials to show that he has in fact obtained the test qualification, etc. 4. For this, Ext.P3 notice was issued by R3 in the W.P(C) to the petitioner on 11-12-2018 giving him further time to produce requisite materials to show that he has in fact obtained the test qualification, etc. 4. It is in the light of these aspects that the petitioner had filed the instant Writ Petition in which this, Court had initially issued an interim order directing that the admitted and undisputed pensionary benefits shall be immediately released to the petitioner. The complaint of the petitioner was that, more than Rs.15 Lakhs is still withheld from his retirement benefits towards the excess pay and emoluments drawn by him from the year 2003 onwards. 5. The learned Single Judge has taken the view that audit objection as raised in Ext.P2 dated 08-10-2018 has been communicated to the writ petitioner after his retirement on 28-02-2018. Further the learned Single Judge has categorically held that the impugned action taken by the Guruvayoor Devaswom Board to recover the alleged excess pay and allowances said to have been paid to the writ petitioner, will not be legally justified, inasmuch as the erroneous payment started from the year 2003 and it is only after the expiry of more than long 15 years that steps have been taken to rectify the alleged mistake and to recover the alleged excess pay and allowances. 6. The learned Single Judge has also placed reliance on the provision contained in Rule 3C of Part III KSR and has held that since the alleged excess payments is on account of a mistake which is far beyond the committed period of four years before the retirement as stipulated in Rule 3C, the recovery is not justifiable even on the basis of that Rule, etc. 7. Accordingly, the learned Single Judge has held that in the light of the well settled legal position on the basis of the decisions of the Apex Court in the case as in State of Punjab & Ors v. Rafiq Masih (White Washer) [ 2015 (4) SCC 334 ] para 18, as well as in decisions of this Court as in Kasaragod District Co-operative Bank Ltd. & anr. v. Radha K.A & anr.[ 2016 (1) KHC 260 ] and Ajith Kumar v. State of Kerala [ 2017 (3) KLT 58 ], it has been held that the impugned action taken by the Guruvayoor Devaswom Board to recover the alleged excess pay and allowances paid to the petitioner is legally impermissible. Accordingly, the learned Single Judge has directed that the respondents in the W.P(C) will release the amounts withheld from the retirement benefits of the petitioner within a period of two months, etc. 8. After hearing both sides, we are of the firm view that the learned Single Judge has rightly held that, the alleged excess pay and allowances said to have been paid to the petitioner during the time when he was in service cannot be recovered at this point of time, inasmuch as the alleged mistakes have occurred more than 15 years prior to the date of retirement. The petitioner has retired from service on 28-02-2018. He was promoted to the post of Additional Supervisor on 15-03-2002 and to the post of Health Supervisor on 01-06-2003. The factual aspects that he did not have test qualification to be then promoted and that he secured right to be considered for promotion only after he attained the age of 50 years by securing test exemption on 10-05-2008 etc, was taken up for consideration by the audit and by the Guruvayoor Devaswom Board only much later as per Ext.P2 issued as late as on 08-10-2018 which is even after the retirement of the petitioner. In that regard, it will be profitable to refer to para No.18 of the judgment of the Apex Court in the celebrated White Washers case {State of Punjab & Ors v. Rafiq Masih [ 2015 (4) SCC 334 ]}, which reads 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.” 9. The case at hand would fall within clause (iii) of para 18 of White Washer’s case inasmuch as the steps for recovery have been taken after the expiry of 15 long years after his retirement, whereas the permitted period is upto 5 years. The permissible period in such situation as conceived in Rule 3C of Part III KSR is 4 years prior to the date of retirement, provided steps have been taken within the period of four years after retirement. Thus going by the well settled legal position on the basis of the abovesaid case laws as well as on the basis of the statutory provision, the learned Single Judge was fully right in holding that the steps taken by the appellants herein/respondents in W.P(C) to recover the alleged excess pay and allowances paid to the petitioner on account of the wrong promotion are clearly legally barred. However in the operative portion of the directions issued by the learned Single Judge in para No.16 of the impugned judgment it can be seen that, a general direction has been issued therein that the respondents in W.P(C) shall release the entire amounts withheld from the retirement benefits of the petitioner within two months, etc. However in the operative portion of the directions issued by the learned Single Judge in para No.16 of the impugned judgment it can be seen that, a general direction has been issued therein that the respondents in W.P(C) shall release the entire amounts withheld from the retirement benefits of the petitioner within two months, etc. Thereby implying that, what is to be released is not only the excess pay and allowances which was allegedly adjusted as against the pensionary benefits but also even the pensionary benefits itself. This may give rise to interpretation that the respondents in W.P(C) are constrained to disburse the pensionary benefits due to the petitioner by treating his last pay on the date of retirement on the basis of the unlawful promotions granted to him as Additional Health Supervisor and Health Supervisor on 15-03-2002 and 01-06-2003 respectively. 10. Sri.T.K.Vipindas, learned Standing Counsel for the Guruvayoor Devaswom Board appearing for the appellants would contend that if this Court in this appeal is upholding the primary directions issued by the learned Single Judge not to recover the alleged excess pay and allowances paid to the petitioner during the time of his service, this Court should at least permit and give liberty to the Guruvayoor Devaswom Board to refix the last pay of the appellant, by treating that he was lawfully entitled for promotion as Additional Health Supervisor/Health Supervisor only with effect from 10-05-2008, which is the date on which he had secured the exemption on completing 25 years of service. That otherwise it would amount to allowing the writ petitioner to draw the pensionary benefits including pension and DCRG, on the basis of the erroneous last pay of the petitioner as on the date of his retirement. If that be so, the said illegality will also have been perpetuated in the case of the pensioner as well as the claimant for family pension and a subsequent point of time. This the learned Standing Counsel has strongly urge would amount to permitting the writ petitioner to enjoy any unlawful benefit and that too out of the limited funds of the Guruvayoor Devaswom Board and that this Court in appeal may interdict in the matter. 11. This the learned Standing Counsel has strongly urge would amount to permitting the writ petitioner to enjoy any unlawful benefit and that too out of the limited funds of the Guruvayoor Devaswom Board and that this Court in appeal may interdict in the matter. 11. Sri.K.Sajan Varghese, learned counsel for the writ petitioner/R1 herein has raised various contentions regarding the steps proposed to be taken by the appellant Devaswom Board for refixing the last pay of the writ petitioner, on the premise that he was entitled for promotion as Additional Health Supervisor/Health Supervisor only with effect from 10-05-2008, etc. In that regard, the learned advocate appearing for the writ petitioner would invite our attention to the objections of the writ petitioner as contained in the statement of objections dated 23-03-2021 filed by R1 herein in this writ appeal, more particularly, para No.4 thereof. The main objections of the writ petitioner are contained in para No.4 of the said written objections given on pages 2 to 5 thereof, which read as follows: “4. Thus in tune with Anx.R1(a), the first respondent was promoted and appointed as Additional Health Supervisor which is equal to the post of health inspector seen in the same Annexure and he was provided with the salary in the scale Rs.6,500-Rs.10,500. Since he could not pass the qualification tests, he was not entitled to get increments. Thus, he was stagnated with the basic scale of the salary. Later, 2004 pay revision came into effect, wherein the salary of the Health Supervisor was revised and still, the first respondent was entitled to get the basic salary viz, Rs.11,910/-only. This situation got changed by 10-05-2008 as he had acquired 25 years of service by then; as such he was exempted from acquiring test qualification. In terms of Rule 37B(b) of Part I of KSR, he is to get the benefits of all increments (on notional basis and without monetary benefit) and accordingly his salary has to be fixed with effect from 10-05-2008. In short, with effect from 10-05-2008 he is to get all benefits and increments as on the said date irrespective of qualifying the tests. If probation had not been declared till then, for the reason of non-qualifying the tests, the same had to be declared as on 10-05-2008. In short, with effect from 10-05-2008 he is to get all benefits and increments as on the said date irrespective of qualifying the tests. If probation had not been declared till then, for the reason of non-qualifying the tests, the same had to be declared as on 10-05-2008. Declaration of probation is a matter comes within the jurisdiction of the employer, in which the employee has got no say. In the above circumstances, if the declaration of probation had not been made at the proper time, the same cannot have any effect on the ultimate salary to be provided to the fist respondent. Later he retired on 28-02-2018. True copy of the statement of salary to be availed by the first respondent from 01-03-2003 to 10-05-2008 is produced herewith as Anx.R1(b). With effect from April, 2005, the 2004 pay revision came into effect and thus salary change can be seen from the said month, in Anx.R1(b). It is respectfully submitted that Ext.R2(i) is in total disregarded to annexure R1(a) regulations. When the first respondent is promoted as Additional Health Supervisor, his scale of pay would be shifted to Rs.6,500-Rs.10,500., as stated above. Thus the salary has to be calculated on account of the same, as seen in Anx.R1(b). After promotion, the salary of the first respondent cannot be calculated as that of the lower post, if so he ought to have been reverted which is not done so. The only thing is that, till the tests are qualified, probation may not be declared and consequently no increment could have been provided as mandated in note 1 of Rule 31 of Kerala Service Rules-Part I. This aspect is not given application in Ext.R2(i), thus the same is not legally sustainable. As per Anx.R1(b) the excess amount availed by the first respondent is Rs.77,652/-, but in the light of the contentions raised in the memorandum of the writ petition and the judgment passed therein, such amount cannot be recovered from the first respondent which is trite especially on the basis of the judgments referred to therein.” 12. We had pertinently queried to Sri.K.Sajan Varghese, learned Advocate appearing for the writ petitioner as to whether the writ petitioner is in any manner finding fault with the considered fact findings made by the learned Single Judge as made out in para No.3 of the impugned judgment. We had pertinently queried to Sri.K.Sajan Varghese, learned Advocate appearing for the writ petitioner as to whether the writ petitioner is in any manner finding fault with the considered fact findings made by the learned Single Judge as made out in para No.3 of the impugned judgment. We are now apprised that the writ petitioner has no serious objections to the correctness of the factual findings made by the learned Single Judge in para No.3 of the impugned judgment. One of the main contentions urged by the writ petitioner appears to be that in a case where an incumbent is promoted to a post without acquiring test qualification or without securing test exemption, he will not be entitled for increments, etc and presumably, it appears that the case of the writ petitioner is that, he has not actually obtained increments in the promoted post till he obtained test exemption, etc and that there may not be much of a difference in the last pay to be refixed even if it is treated that the petitioner was lawfully entitled for promotion to the post of Additional Health Supervisor/Health Supervisor only with effect from 10-05-2008, etc. 13. Sri.T.K.Vipindas, learned Standing Counsel for the Guruvayoor Devaswom Board appearing for the appellants submits that he does not have instructions on those factual details inasmuch as those factual issues are not pertinent or relevant for the main determination of the issues in this writ appeal. 14. After hearing both sides, we are of the view that we need not get into the task of resolving the abovesaid factual contentions raised by the writ petitioner and those are all matters which should engage the serious consideration and examination of the competent authority of the appellant Guruvayoor Devaswom Board. The fact of the matter is that, the petitioner had not secured test qualification and thus he was not eligible or entitled to be considered for promotion to the post of Additional Health Supervisor or Health Supervisor when he was so promoted to those posts on 15-03-2002 and 01-06-2003 respectively. The crucial fact of the matter is that, the petitioner became legally eligible and entitled to be considered for promotion to those posts only on 10-05-2008, which is the day on which he secured exemption test qualification on completing 25 years of service. The crucial fact of the matter is that, the petitioner became legally eligible and entitled to be considered for promotion to those posts only on 10-05-2008, which is the day on which he secured exemption test qualification on completing 25 years of service. Though it would be highly illegal and improper to order the recovery of the alleged excess pay and allowances paid to the petitioner on account of the abovesaid wrong promotion, inasmuch as the action has been only after the expiry of long 15 years after the granting of the promotions. That does not imply that the petitioner can legally claim that he is entitled to get his pensionary benefits including pension and gratuity, etc by treating the last pay as on the date of his retirement as if he was not promoted to the post of Additional Health Supervisor and Health Supervisor on 15-03-2002 and 01-06-2003 respectively. There cannot be any dispute that the petitioner became lawfully entitled to be considered for promotion to those posts only on 10-05-2008. Though no recovery of the alleged excess pay and allowances is permissible in this case, the retiral benefits can be lawfully claimed by the petitioner only on the basis of the legally due last pay. If such corrective steps are not taken, it will amount to disbursing pensionary benefits on the basis of the wrongly fixed last pay throughout the life time of the pensioner and later to the family pension beneficiary. 15. We make it clear that the competent authority of the appellant Guruvayoor Devaswom Board will be at liberty to refix the last pay of the writ petitioner by taking into account that he was lawfully entitled for promotion only to the post of Additional Health Supervisor/Health Supervisor only on 10-05-2008. In that regard, since the factual contentions have been raised by the writ petitioner, we order that in case the appellant Guruvayoor Devaswom Board proposes to take any further action in that regard, they should ensure that show cause notice will be issued to the petitioner showing the provisional proposal as to in what manner the last pay of the petitioner is to be refixed and also as to in what manner the pensionary amounts and gratuity amounts as sought to be quantified on the basis of such refixed last pay of the petitioner as on the date of his retirement. The appellants should invite objections of the writ petitioner to that show cause notice and the petitioner will be at liberty to give his detailed objections in writing in that regard. Thereafter, the competent authority of the appellant Devaswom Board will afford reasonable opportunity of being heard to the writ petitioner either in person or through authorised representative or counsel if any, as per his choice and then should consider the vital contentions raised by the petitioner and then should take an appropriate decision as to what exactly is the last pay of the petitioner that is sought to be refixed and also the quantum of the pension and DCRG which is computed on the basis of such revised/refixed last pay and the pensionary benefits due in that regard should also be disbursed to the petitioner. In that regard, it is made clear that in case the undisputed/admitted pensionary benefits have already been disbursed to the petitioner, then the differential amounts if any, on the basis of the abovesaid process shall be disbursed to the petitioner without any further delay, at any rate within a period of six weeks from the date of receipt of a certified copy of this judgment. 16. We also make it clear that, in case the petitioner has any legally justiciable grievances to any such decision so taken by the appellants, then he will be at liberty to work out his remedies in the manner known to law. The directions and orders of the learned Single Judge as per the impugned judgment rendered on 09-11-2020 in W.P(C) No.9256/2019 will stand modified as above. With these observations and directions the above Writ Appeal will stand finally disposed of.