JUDGEMENT 1. Vide Office Order No. SIMS-04 of 1992, dated 09.01.1992, Office Order No. SIMS-174 of 1994, dated 04.03.1994, Office Order No. SIMS-263 (P) of 1994, dated 26.04.1994 and Office Order No. SIMS-298 (P) of 1994, dated 12.08.1994, the petitioners came to be promoted to their next higher posts on officiating basis against the vacancies in the respondent-Institute caused due to mass migration of staff belonging to minority community. As per the aforesaid orders issued by the respondent-Institute, the officiating promotion was granted to the petitioners initially for a period of one year or till return of migrants. The arrangement was extended from time to time till the Government of Jammu and Kashmir took a decision for regularization of migrant substitutes. Pursuant to Cabinet Decision 79/04, dated 11.05.2006. the Government vide its Order No. 610-GAD of 2006, dated 16.05.2006, ordered that the migrant substitutes working in various departments against the migrant vacant posts shall be regularized against these posts without waiting for the posts getting vacant due to retirement/promotion of migrant employees or due to any other reason. It is in pursuance of this order that the petitioners claim that they were also regularized against the higher posts held by them in officiating capacity in the year 2008. 2. It seems that somewhere in the year 2013, it was noticed by the respondent-Institute that the petitioners who were promoted to the higher post on officiating basis in the year 1992 and 1994 had been wrongly released the grade of higher post held by them in terms of Article 77-B of J&K Civil Services Regulations (“CSR”), whereas their case should have been regulated under Article 85 of the CSR. This was also pointed out by the Audit party of the office of Accountant General. The respondent-Institute, taking note of aforesaid alleged mistake committed by the Institute at the time of promoting the petitioners on officiating basis, took the corrective measure and issued Order No. SIMS-467 (PER) of 2013, dated 22.04.2013, whereby the officiating promotion given to the petitioners against migrant vacancies in the pay scale of the higher post was modified to provide that such promotion shall be treated as officiating promotion retrospectively with incentive of charge allowance as admissible under rules. 3. It is this order of the respondent-institute dated 22.04.2013, which is called in question by the petitioners on multiple grounds. 3. It is this order of the respondent-institute dated 22.04.2013, which is called in question by the petitioners on multiple grounds. The grounds of challenge which were vehemently urged by Mr. Mian Tufail, learned counsel for petitioners may be summarized as under: (i) That the impugned order has visited the petitioners with civil consequences and the same could not have been passed by the respondents without complying with principle of natural justice. It is contended that the petitioners who were otherwise eligible were promoted to the higher post with grade benefit in consonance with provisions of Article 77-B of the CSR. They enjoyed the aforesaid benefit for almost 14 to 16 years and, therefore, the respondents could be permitted to modify the order of their officiating promotion, thereby exposing the petitioners to the serious consequence of recovery of huge amount; (ii) That the petitioners were not privy to the passing of the order of officiating promotion in their favour nor were they in any manner responsible for fixing their pay in the pay scale and grade of the higher post against which they had been asked to officiate. It is, thus, contended that it is not permissible for the respondent-Institute to change the complexion of their officiating promotion only with a view to deprive them of the benefit of salary attached to the post held by them on officiating basis; (iii) That the petitioners have performed the duties of higher responsibility attached to the post against which they were promoted on officiating basis and, therefore, on the basis of principle of equal pay for equal wages, they were entitled to the salary as per the pay scale/grade of the higher post. 4. The petition is resisted by respondents, who, in their objections, have supported the impugned order and taken a stand that the promotion of the petitioners on officiating basis against migrant vacancies was covered by Article 85 of the CSR and, therefore, they ought to have been granted the officiating promotion with the benefit of incentive of charge allowances. It is submitted that the then Drawing and Disbursing Officer erroneously released the salary in the grade of higher post by wrongly invoking Article 77-B of the CSR. 5. Mr. It is submitted that the then Drawing and Disbursing Officer erroneously released the salary in the grade of higher post by wrongly invoking Article 77-B of the CSR. 5. Mr. Sajad Ashraf, learned counsel for respondents, submits that since the payment has been made to the petitioners under a mistake, as such, the same can be recovered at any point of time by rectifying the mistake. He further submits that if the petitioners are allowed to get away with the public money paid to them under a mistake, this would only be tantamount to unjust enrichment which is not permissible under law. 6. Having heard learned counsel for the parties and perused material on record, I find that the facts are not much in dispute in this petition. Indisputably, the petitioners who were holding different positions in the respondent-Institute were granted officiating promotion against higher posts left vacant due to migration of the minority community employees. It is not in dispute that the respondent-Institute with the petitioners asking for, granted them officiating promotion and also released the grade of the higher post. Indisputably, the petitioners who were holding different positions in the respondent-Institute were granted officiating promotion against higher posts left vacant due to migration of the minority community employees. It is not in dispute that the respondent-Institute with the petitioners asking for, granted them officiating promotion and also released the grade of the higher post. This seems to have been done by the respondent-Institute in consonance with Article 77-B of the CSR; the relevant portion whereof for ready reference is reproduced hereunder: “77-B. Fixation of pay on promotion:- Notwithstanding anything contained in these rules, where a Government servant holding a post in a substantive, temporary, or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay/presumptive pay in the time scale of the higher post shall be fixed at the stage next above the pay/presumptive pay notionally arrived at by increasing his pay in respect of the lower post by one increment at the stage at which such pay has accrued: Provided that the provisions of clause (ii) of Art. 67(a) shall not be applicable in any case where the initial pay/presumptive pay is fixed under this rule: Provided further that where a Government servant is immediately before his promotion or appointment to a higher post drawing pay at the maximum of the time scale of the lower post his initial pay/presumptive pay in the time scale of the higher post shall be fixed at the stage in that time scale next above such maximum in the lower post: Provided that if a Government servant has previously held substantively or officiated in:- (i) The same post, or (ii) a permanent post other than a tenure post or temporary on an identical scale, or (iii) is appointed substantively to a tenure post on a time scale identical with that of another tenure post which he has previously held substantively or in which he has previously officiated then proviso to Art. 77(b) shall apply in the matter of initial fixation of pay and counting of previous service for increment.” 7. From perusal of the relevant extracted portion of Article 77-B, it clearly transpires that where a Government servant holding a post in substantive or temporary or officiating capacity is promoted or appointed to another post carrying duties and responsibilities of greater importance than those attached to the post held by him, either in substantive or temporary or officiating capacity, his initial pay in the time scale of higher post is required to be fixed at the stage next above of the pay/presumptive pay notionally arrived at by increasing his pay in respect of lower post by one increment at the stage at which such pay has accrued. To put it simply, in terms of Article 77-B, if a person holding any post in substantive or temporary or officiating capacity is promoted to the post carrying duties and responsibilities of greater importance either on substantive or officiating capacity, his salary is required to be fixed having regard to the grade attached to the post carrying duties and responsibilities of greater importance. In the instant case, the petitioners were holding the lower posts (Class C&D Posts) and were given officiating promotion against the posts carrying the duties and responsibilities of higher nature and were, thus, rightly placed in the pay scale of the higher post and, accordingly, released the grade. This happened in the year 1992 and 1994. They continued to receive the benefit of higher salary till the year 2008, when their services against the promoted post came to be regularized pursuant to a policy decision taken by Government to regularize all migrant substitutes. The plea of the respondents that the case of the petitioners was covered under Article 85 of the CSR, is not acceptable for the reason that Article 84 of the CSR is invokable only when an employee is assigned the charge of higher post either in addition to his own duties or independently of his own duties. The plea of the respondents that the case of the petitioners was covered under Article 85 of the CSR, is not acceptable for the reason that Article 84 of the CSR is invokable only when an employee is assigned the charge of higher post either in addition to his own duties or independently of his own duties. Charge allowance in such a situation where an employee is assigned the duties of higher post independently of his duties of the post held by him substantively on temporary basis becomes payable where it is not expedient to fill-up the higher post by way of substantive promotion by following the due process of law, i.e., by conducting the Departmental Promotion Committee (DPC) and passing an appropriate order of substantive promotion by the competent authority; such was not a situation that had arisen in the year 1992 and 1994. The petitioners might be or might not have been eligible for regular promotion in their line, but they were asked to officiate against the posts carrying duties and responsibilities of higher nature in view of the exigency of service. To reiterate, the exigency had arisen due to mass migration of staff of Institute due to turmoil in valley in the year 1990. Since the petitioners were asked to hold the higher posts and perform the duties of such posts, as such, they were rightly given the officiating promotion with the grade. Such course of action is permissible and is covered by Article 77-B of the CSR. It is, thus, evident that there has been inherent fallacy in interpreting and understanding the distinction between Article 77-B and Article 85 of the CSR, which has resulted in issuance of order impugned. I am of the considered opinion that not only on the basis of Article 77-B of the CSR, but also on the principle of 'equal pay for equal work', the petitioners were entitled to the salary of the post against which they officiated and performed the plenary duties. Most of the petitioners have, either retired or at the verge of retirement. Even if, for some reasons, we were to accept the plea of respondents, it would be highly unequitable to recover the amount in a lumpsum which was received by the petitioners over a period of time. They were not privy to the alleged mistake, nor had they claimed the pay scale of higher post. Even if, for some reasons, we were to accept the plea of respondents, it would be highly unequitable to recover the amount in a lumpsum which was received by the petitioners over a period of time. They were not privy to the alleged mistake, nor had they claimed the pay scale of higher post. They were released the benefit of higher salary and, accordingly, adjusted their life style. It would be too harsh to tell them at the fag end of their career to refund the amount what they have spent believing that it was their legitimately earned money. Viewed from any angle, it is too late for the respondents to correct their mistake that too without even affording opportunity of hearing to the petitioners. This is apart from holding that there was, in law, no mistake committed by the respondents in releasing the grade of higher post which is permissible under Article 77-B of CSR Vol.-I. 8. For the foregoing reasons, I find merit in this petition and the same is, accordingly, allowed. The impugned order of the respondent-Institute dated 22.04.2013 is quashed. The respondents are directed to desist from making any recoveries from the petitioners or taking any other action adverse to the interest of the petitioners in terms of the impugned notice of the respondent-institute. 9. With the aforesaid observations, this petition is disposed of.