JUDGMENT 1. Heard Mr. Ch. Robinchandra, learned counsel for the petitioner; Mr. S. Jasobanta, learned counsel for the first respondent and Mrs. Ch. Sundari, learned Government Advocate for the respondents 2 to 4. 2. This writ petition has been filed by the petitioner seeking a writ of mandamus directing the respondents to refund the gratuity amount and the dearness relief amount of Rs.3,11,847/- to her which amount had been deducted from the retirement gratuity account and dearness relief account of the petitioner. 3. Mr. Ch. Robinchandra, the learned counsel for the petitioner submitted that the petitioner retired from service on her attaining the age of superannuation with effect from 30.6.2010 and on the retirement, the first respondent issued pension book dated 1.7.2010 bearing PPP No.SM/29940 as Part-I to the petitioner and Part-III of the book forwarded to the fourth respondent with instruction to deduct a sum of Rs.3,11,847/- from her gratuity account and dearness relief account and, accordingly, the said sum was deducted. 4. The learned counsel further submitted that the State Government had granted the higher scale i.e. qualification scale, trained scale of her passing the Basic Training Examination, Senior Trained Scale of her length of service and also granted the revised pay scale under ROP, 2010. He would submit that on 24.6.2017, the Principal Secretary, Education(S) issued an order stating that the State Cabinet on 28.4.2017 decided to review and withdraw the decision of the Cabinet taken on 20.8.2016 to cancel the grant of qualification scale and, accordingly, the Governor of Manipur by issuing an order withdrawing the Government Order dated 6.9.2016 cancelling the grant of scale of higher post i.e. qualification scale. In view of the above, the petitioner is entitled to enjoy full gratuity amount and the dearness relief amount. 5. The learned counsel next submitted that on 11.10.2019, the petitioner submitted a representation to refund the amount of Rs.3,11,847/- which amount was deducted by the respondents as excess payment/overpayment from her retirement gratuity and dearness relief account. Despite receipt of the said representation, the respondent authorities failed to consider the request of the petitioner till date. 6. The learned counsel urged that the act of the respondent authorities to deny to refund the amount of Rs.3,11,847/- to the petitioner is illegal and arbitrary to the extent that they have deprived the fundamental rights guaranteed under the Constitution of India. 6. The learned counsel urged that the act of the respondent authorities to deny to refund the amount of Rs.3,11,847/- to the petitioner is illegal and arbitrary to the extent that they have deprived the fundamental rights guaranteed under the Constitution of India. Thus, a prayer is made to direct the respondent authorities to refund the amount of Rs.3,11,847/- to the petitioner. 7. Per contra, the learned counsel for the first respondent submitted that by the order dated 27.10.2018 passed in Contempt Case (C) No.65 of 2016 this Court directed that those teachers who were appointed as Matriculate teachers are not entitled to automatically enjoy higher pay/qualification scale of pay even though the concerned teachers had acquired higher qualification and those teachers who were given higher scale without following due norms and procedure shall be allowed pension as per their substantive post as per the relevant RRS and ROPs. Accordingly, the Principal Secretary, Education(S) was requested to furnish specific order to enable the first respondent to process the retirement benefit cases of retired pensioner/family pensioner as per the direction of the Court dated 27.10.2018. 8. The learned counsel further submitted that by letter dated 6.6.2019, the Principal Secretary conveyed to settle the retirement benefit cases of the retired pensioner/family pensioners as per the Government Order dated 16.8.2016 and that while submitting pension papers of the petitioner, a consent/self-declaration duly signed by her declaring that she hereby give her consent to the recovery of any kind of overpayment standing dues from the pension and gratuity admissible to her, duly countersigned by the Zonal Education Officer, Zone-II, Imphal East was furnished. 9. The learned counsel submitted that the Zonal Education Officer forwarded the consent of the petitioner wherein she has requested to deduct the overpayment of pay and allowance resulted therein from her pension benefits by working out by the office of the first respondent. Thus, in accordance with Rule 71(2) and 73(3) of the MCS (Pension) Rules, 1977 read with the Government of India's decision No.6 below Rule 73, the first respondent settled the pension case by deducting overpaid pay and allowances amount of Rs.3,11,847/- in accordance with the existing procedure followed for finalisation of pension case. 10. Thus, in accordance with Rule 71(2) and 73(3) of the MCS (Pension) Rules, 1977 read with the Government of India's decision No.6 below Rule 73, the first respondent settled the pension case by deducting overpaid pay and allowances amount of Rs.3,11,847/- in accordance with the existing procedure followed for finalisation of pension case. 10. The learned counsel urged that there is no illegal act on the part of the first respondent and that submission of consent/self-declaration to make recovery by the petitioner and at the same time approaching this Court to get the relief from that recovery is contradictory. Thus, the act of the petitioner is to be termed as wilful disregard of the existing Rules and procedure and is an attempt to misrepresent the facts furnished by the petitioner herself. Thus, a prayer is made to dismiss the writ petition on the ground that there is no merit in it. 11. Mr. Ch. Sundari, the learned Government Advocate submitted that as per Rule 70-A of the MCS (Pension) Amendment Rules, 2006, over payment shall be recovered or adjusted on account of any error or irregularity irrespective of the date of detection of error or irregularity at any time and that the notification dated 6.4.2006 issued by the Department of Personnel regarding recovery of overpayment is in vogue. He would submit that the petitioner herself has given consent which was forwarded by the Zonal Education Officer to the first respondent, wherein it was requested to deduct the overpayment on account of placement of higher scale of Rs.575-1050 with retrospective effect from 1.7.1983 which was granted without the concurrence of the Finance Department. 12. The learned Government Advocate further submitted that vide an order dated 16.8.2016, the Department of Education(S) ordered that those teachers who were given higher scale without following due norms and procedure shall be allowed pension only as per their substantive post as per the relevant RRs and ROPs and, accordingly, the Account General, Manipur was requested for settling the retirement benefits of the retired pensioner/family pensioners as per the said Government Order dated 16.8.2016. Thus, a prayer is made to dismiss the writ petition. 13. This Court considered the rival submissions and also perused the materials available on record. 14. Thus, a prayer is made to dismiss the writ petition. 13. This Court considered the rival submissions and also perused the materials available on record. 14. There is no dispute that the petitioner was appointed as Primary/Matriculate Teacher vide order dated 15.6.1983 on regular basis and retired from service with effect from 30.6.2010 on attaining the age of superannuation at the pay scale of Rs.9300-34800 with GP 4200/-. During her service, the petitioner passed the Senior Basic Training Examination, 1989- 90 and she was allowed to enjoy the trained scale of pay in the scale of pay of Rs.1200-1800/- with effect from 5.7.1990. Thereafter, the petitioner was granted the revised Trained Senior Scale of pay of Rs.5000-8000 per month with effect from 5.7.2022 under ROP 99 and in ROP 2010 published on 5.5.2010 revised the pay scale of Rs.5000-8000/- to the pay band Rs.9300-34800/- with GP 4200/-. The ROP 2010 came into force notionally with effect from 1.1.2006 with cash payment from 1.4.2010. When the petitioner was appointed, she was qualified BA 1st year and, therefore, she was granted the higher scale of Under Graduate according to her educational qualification. 15. The grievance of the petitioner is that since she had been granted higher scale, trained scale of pay, revised trained senior scale of pay, there was no excess drawal by her. Therefore, the respondents are liable to refund the amount of Rs.3,11,847/- wrongly deducted from the gratuity amount and the dearness relief account of the petitioner. 16. According to the respondents, particularly the respondent State, the Accountant General, Manipur was requested for settling the retirement benefits cases of the retired pensioner/family pensioners as per the Government Order dated 16.8.2016 and, therefore, the first respondent was right in deducting the amount of Rs.3,11,847/- which was wrongly drawn by the petitioner. 17. On a perusal of the order dated 16.8.2016, this Court finds that the said order has been passed while the Department of Education(S) was facing with the contempt case before this Court. In paragraphs 7 and 8 of the said order, it has been stated as under: '7. Whereas, those teachers who were appointed as Matriculate teachers are not entitled to automatically enjoy higher pay/qualification scale of pay even though the concerned teachers had acquired higher qualification. 8. In paragraphs 7 and 8 of the said order, it has been stated as under: '7. Whereas, those teachers who were appointed as Matriculate teachers are not entitled to automatically enjoy higher pay/qualification scale of pay even though the concerned teachers had acquired higher qualification. 8. Now, therefore, in view of the above the Governor of Manipur is pleased to order that those teachers who were given higher scale without following due norms and procedure shall be allowed pension only as per their substantive post as per the relevant RRs. and ROPs.' 18. As stated supra, the aforesaid order is dated 16.8.2016 and the petitioner retired from service with effect from 30.6.2010 i.e., prior to the passing of the order dated 16.8.2016. 19. In the case of the petitioner, the grant of qualification scale, trained scale and senior scale were prior to 2005. Therefore, whatever the orders cited by the respondents in regard to the grant of qualification scale, trained scale and senior scale after 2005 may not affect the case of the petitioner. 20. At this juncture, it is to be pointed out that it is settled law that recovery should not be made from the retired employees and when the excess payment has been made for a period in excess of five years before the order of recovery is issued. 21. In the case on hand, as stated supra, the petitioner got retired from service with effect from 30.06.2010 and the respondent authorities granted her the qualification scale, trained scale, senior scale and revised her pay under ROP 2010 by passing appropriate orders and making entries in her service book. Therefore, grant of qualification scale, trained scale and senior scale to the petitioner cannot be questioned and found fault by the respondent authorities at this distant point of time thereby deducting a sum of Rs.3,11,847/- from the gratuity account and the dearness relief account. The payment of higher scales was done by the orders passed by the authorities without the fault of the petitioner. 22. In State of Punjab and others v. Rafiq Masih (White Washer), (2015) 4 SCC 334 , the Hon'ble Supreme Court held that recovery should not be made from the retired employees. 23. In the case on hand, as could be seen from the records, it is clear that before making deduction, no notice or hearing was given to the petitioner. In State of Punjab and others v. Rafiq Masih (White Washer), (2015) 4 SCC 334 , the Hon'ble Supreme Court held that recovery should not be made from the retired employees. 23. In the case on hand, as could be seen from the records, it is clear that before making deduction, no notice or hearing was given to the petitioner. Assuming that the grant of qualification scale, trained scale, senior scale and excess payment, if any, to the petitioner, the concerned officials have contributed for the same, for which, the petitioner, who retired almost 12 years back cannot be victimised by deducting the hard earned money of Rs.3,11,847/-. 24. At this juncture, it is apposite to mention the decision of the Hon'ble Supreme Court in the case of Shyam Babu and others v. Union of India and others, (1994) 4 SCC 521, wherein it has been held that higher pay scale given erroneously to incumbents without their fault, shall not be recovered. 25. Admittedly and as stated supra, the petitioner has not played any role or fraud in drawing the excess pay and she came to know the excess drawal details only when the Accountant General issued pension book and directed to recover a sum of Rs.3,11,847/-. 26. The consent/self-declaration to the effect that the petitioner undertook to deduct overpayment of pay and allowance is concerned, the learned counsel for the petitioner submitted that the petitioner signed in a letter dated 28.9.2011 prepared by the Zonal Education Officer addressed to the Senior Accounts Officer (Pension) thereby consenting to deduct the overpayment resulted in her pay and allowances on account of placement to higher scale of pay so as to enable her to meet her present serious financial hardships. 27. Normally, if the retiring staff refused to sign in the said letter, the pension proposal could not be processed. Therefore, faced with that situation only, the employee was signing. In this case also, as rightly argued by the learned counsel for the petitioner, the petitioner at that stage is bound to sign the said letter against her will for speedy disposal of her pension proposal. Therefore, plea of the first respondent that based on the consent/self-declaration deduction was made cannot be countenanced. 28. In this case also, as rightly argued by the learned counsel for the petitioner, the petitioner at that stage is bound to sign the said letter against her will for speedy disposal of her pension proposal. Therefore, plea of the first respondent that based on the consent/self-declaration deduction was made cannot be countenanced. 28. The learned counsel for the petitioner, drawing this Court's attention to the order dated 24.6.2017, submitted that the Principal Secretary, Education(S) issued an order stating that the State Cabinet on 28.4.2017 decided to review and withdraw the decision of the Cabinet dated 20.8.2016 to cancel the grant of qualification scale and, therefore, in pursuance of the Cabinet decision dated 28.4.2017, the Governor of Manipur withdrawn the order dated 6.9.2016 cancelling the grant of scale of higher post i.e. the so-called qualification scale. He further submits that after knowing the said order, the petitioner has submitted a representation on 11.10.2019 to the respondents to refund the amount of Rs.3,11,847/- deducted from her retirement gratuity account and dearness relief account. 29. Admittedly, the receipt of the said representation of the petitioner has not been denied by the respondents. As stated supra, no decision on the representation has been taken by the respondent authorities till date. The non-consideration and passing of an order on the representation of the petitioner dated 11.10.2019 and communication of the decision thereon to the petitioner necessitates the petitioner in filing the present writ petition. Therefore, this Court finds merit in the writ petition. 30. For the foregoing discussions, this Court is of the view that the State Government had granted the higher scale of the so-called qualification scale, trained scale of the petitioner's passing the Basic Training Examination, Senior Trained Scale of her length of service and also granted the revised scale under ROP 2010. Further, by the order dated 24.6.2017, the Secretariat, Education(S) Department, Government of Manipur withdrawn/cancelled the Government Order dated 6.9.2016 cancelling the grant of scale of higher post (the so-called qualification scale). Therefore, there is no hurdle on the part of the respondent authorities in refunding the amount of Rs.3,11,847/- deducted from the retirement gratuity account and dearness relief account of the petitioner. 31. In the result, (i) The writ petition is allowed. Therefore, there is no hurdle on the part of the respondent authorities in refunding the amount of Rs.3,11,847/- deducted from the retirement gratuity account and dearness relief account of the petitioner. 31. In the result, (i) The writ petition is allowed. (ii) The respondent authorities are directed to refund the gratuity amount and the dearness relief amount of Rs.3,11,847/- to the petitioner, which was deducted from the retirement gratuity account and dearness relief account of the petitioner. (iii) The said exercise is directed to be completed within a period of four weeks from the date of receipt of a copy of this order. (iv) No costs.