JUDGMENT : Sanjay Prasad, J. This writ petition has been filed on behalf of the petitioner for quashing of the order issued by Memo No. 106, dated 23.02.2017 (i.e. Annexure-6) by the Joint Agriculture Director, Santhal Pargana Area, Dumka by which pay scale of the petitioner in respect of the 1st A.C.P. and 2nd A.C.P. has been revised in the light of the decision of the Screening Committee and it has further been directed to recover the excess payment made to the petitioner. It has also further been ordered in the said memo dated 23.02.2017 that the 3rd M.A.C.P. will be paid to the petitioner only after recovery of excess payment made to him so far as this petitioner is concerned. 2. Heard Mr. Sumeet Gadodia, learned counsel for the petitioner and Mr. Devesh Krishna, learned S.C.(Mines)-II for the respondents. 3. Learned counsel for the petitioner has submitted that the impugned Office order dated 23.02.2017, as contained in Annexure 6, is illegal, arbitrary and not sustainable in the eye of law. It is submitted that the petitioner has satisfactorily completed 35 years of service. It is submitted that after implementation of the 5th Pay Revision, the pay of the petitioner was fixed in the pay scale of Rs.4,500-7,000/-with effect from 01.01.1996 and he was granted second A.C.P. on 07.8.2003 with effect from 09.8.1999 in the pay-scale of Rs.5,000-8,000/-. However, in view of the representation made by the petitioner and others, the Fitment Appellate Committee had revised the initial pay scale of the petitioner from Rs.4,500-7,000/-to Rs.5,000-8,000/-. Consequently, second A.C.P. granted to the petitioner was revised vide Memo No.625 dated 07.07.2008, i.e. vide Annexure 3 with effect from 09.8.1999 in the Pay scale of Rs.5,500-9,000/-by the Divisional Commissioner. Thereafter, the petitioner had superannuated from service on 30.6.2009 and he was given entire retiral benefits and he was getting pension in the light of the said pay scale of Rs. Thereafter, the petitioner had superannuated from service on 30.6.2009 and he was given entire retiral benefits and he was getting pension in the light of the said pay scale of Rs. 5,500-9,000/- However, suddenly vide Office Order dated 23.02.2017 (Annexure 6) the benefit of 2nd A.C.P. granted to the petitioner was cancelled, although the third M.A.C.P. was approved in the case of the petitioner and others with effect from 11.8.2001 but in the said Office order it was ordered that benefit of third M.A.C.P. will be made subject to recovery of excess payment given to the petitioner by giving wrong scale of first A.C.P. in the pay-scale of Rs.5,000 -8,000/-instead of Rs.4,500-7,000/-and second A.C.P. in the scale of Rs. 5,500-9,000/-instead of Rs.5,000-8,000/-and excess amount has been directed to be recovered. It is submitted that there is no fraud or misappropriation on the part of the petitioner. Learned counsel for the petitioner further submitted that no recovery can be made from him as the petitioner has retired long back. In support of the same, learned counsel for the petitioner has placed reliance on the judgment passed in the case of Ambika Prasad & Ors. Vs. State of Jharkhand & Ors. reported in 2017 SCC OnLine Jhar 4141 and in the case of Girija Prasad Singh Vs. State of Jharkhand & Ors. reported in 2017 SCC OnLine Jharkhand 2998. It is further submitted that after retirement, no recovery can be made from Class III and Class IV employees even if any excess payment has been made in view of the judgment of Hon’ble Supreme Court passed in the case of State of Punjab & Ors. Vs. Rafiq Masih & Ors. reported in (2015) 4 SCC 334 . It is submitted that in view of the above judgments, the impugned order may be quashed partially so that the part of order relating to his second A.C.P. is modified to the extent that the benefit of Second A.C.P. of Rs.5,500-9,000/-be restored to him, which was extended to him on the pay-scale of Rs.5,000-8,000/-fixed pursuant to the decision of the Fitment Appellate Committee and that no recovery can be made from him and further the third M.A.C.P. benefit may be allowed to the petitioner by the respondents. 4. On the other hand, Mr. Devesh Krishna, learned S.C. (Mines)-III appearing for the State has opposed the prayer of the petitioner. 4. On the other hand, Mr. Devesh Krishna, learned S.C. (Mines)-III appearing for the State has opposed the prayer of the petitioner. It is submitted that though the petitioner has completed more than thirty years of service, however, his pay-scale was wrongly fixed and it has been withdrawn by the respondents-State in the light of the Resolution No. 5207 dated 14.08.2002 and in the light of office order dated 29.04.2010 issued by the Secretary to Agriculture and Sugarcane Development Department, Govt. of Jharkhand by which a decision has been taken that the Clerks working in the Regional Offices will be given first A.C.P. and second A.C.P. in the pay-scale of Rs. 4,500-7,000/-and Rs. 5,000-8,000/-respectively. It is further submitted that the Department of Finance and Planning, vide Letter No. 1528 dated 19.7.2012 (i.e. Annexure-F) has recorded its objection that the fixation of second A.C.P. in the pay-scale of Rs. 5,500-9,000/-infringes the resolution for grant of A.C.P. benefits dated 14.8.2002 and particularly, Clauses 2 (3) and 3(V). It is submitted that vide Letter No. 1791 dated 27.8.2012 the Department of Finance and Planning has clarified that apart from Mufassil Clerks in all other cases the A.C.P. scale is to be granted with the schedule to the Scheme dated 14.08.2002 and the scale of the 1st A.C.P. will be Rs.4,500-7,000/-and the scale of 2nd A.C.P. will be Rs.5,000-8,000/-. It has further been contended that as the petitioner has already been granted promotion to the post of Head Clerk, he was not entitled for the first A.C.P. however, on completion of 24 years of service he became entitled for second A.C.P. in the pay-scale of Rs.5,000-8,000/-and not in the scale of Rs.5,500-9,000/-. It is further submitted that excess payment made on account of fixation of wrong pay scale is subject to recovery and the Department can recover the said amount if the same has been wrongly fixed by the Committee at any appropriate time. In support of his contention, learned counsel for the respondent has placed reliance upon the judgment passed by the Hon’ble Supreme Court in the case of Chandi Prasad Uniyal And Ors. vs. State of Uttarakhand And Ors. reported in (2012) 8 SCC 417 and order dated 06.12.2021 passed in W.P.(S) No. 6037 of 2011 by a Co-ordinate Bench of this Court. vs. State of Uttarakhand And Ors. reported in (2012) 8 SCC 417 and order dated 06.12.2021 passed in W.P.(S) No. 6037 of 2011 by a Co-ordinate Bench of this Court. It is further submitted that there is no illegality in the recovery of excess amount, which has been wrongly paid to the petitioner, hence this writ petition may be dismissed. 5. Perused the record of this case and considered the submission of both the sides. 6. From perusal of the record, it transpires that the petitioner has joined his services in the Agriculture Department as Lower Division Clerk on 11.8.1971. Later on, he was promoted to the post of Upper Division Clerk on 10.9.1975 and he was promoted as Head Clerk in the year 1981. 7. It further transpires that the petitioner was granted pay-scale of Rs.4,500-7,000/-at the time of revision of his pay-scale in the light of recommendation of the 5th Pay Revision Commission with effect from 01.01.1996. 8. It appears that due to the anomalies, which had crept at the time of revision of various cadres of posts in 5th revised pay-scale, the erstwhile State of Bihar, vide resolution No. 229 dated 15.01.2000, constituted a Fitment Appellate Committee, which was headed by Hon’ble Mr. Justice Aftab Alam of Patna High Court (As then His Lordship was) and the said Fitment appellate Committee had examined the representation of the aggrieved employees of the State of Bihar and the petitioner had also filed his representation before the Fitment Appellate Committee with regard to fixation of his pay-scale under the 5th revised pay scale of the Head Clerks working under Mufassil cadre of the Department of Agriculture. 9. It transpires that the Fitment Appellate Committee, vide its report, has considered the representation made by the petitioner and had recommended that all the Head Clerks should be provided the pay scale of Rs. 5,000-8000/-. In the light of the report of the Fitment Appellate Committee, which was accepted by the State of Jharkhand vide resolution as contained in Letter No. 2714 dated 21.09.2007, the pay scale of the petitioner on the post Head Clerk at the time of his revision has been determined at Rs.5,000-8,000/-with effect from 01.01.1996. 10. 5,000-8000/-. In the light of the report of the Fitment Appellate Committee, which was accepted by the State of Jharkhand vide resolution as contained in Letter No. 2714 dated 21.09.2007, the pay scale of the petitioner on the post Head Clerk at the time of his revision has been determined at Rs.5,000-8,000/-with effect from 01.01.1996. 10. However, in view of the fact that the petitioner represented before the Fitment Appellate Committee regarding pay anomaly and that the pay scale of the petitioner has been revised by the Fitment Committee from Rs.4,500-7,000/-to Rs.5,000-8,000/-in the light of recommendation of 5th Pay Revision Committee, the second A.C.P. granted to the petitioner, which was granted earlier on the basic pay of Rs.4,500-7,000/-, resulting into a consequential pay-scale of Rs.5,000-8,000/-, has been revised, i.e. it was revised to be granted on the pay-scale of Rs.5,000-8,000/-resulting into the consequential pay-scale of Rs. 5,500-9,000/-. 11. It transpires that the said revision of pay scale was entered in the Service Book of the petitioner on 08.11.2007 and in support of the same learned counsel for the petitioner has produced a typed copy of the relevant extract of the service book of the petitioner, which is enclosed as Annexure 2. 12. Thereafter, the matter relating to grant of second A.C.P. to the petitioner was sent for confirmation to the office of Divisional Commissioner, Dumka and which was confirmed vide Letter No. 470 dated 18.06.2008 (i.e. Annexure-3) by the Regional Development Officer, Santhal Pargana Division, Dumka and the petitioner, along with others were granted second A.C.P. with effect from 09.8.1999 and the name of the petitioner figures at Serial No. 1 of the said letter. 13. However, it transpires that vide letter dated 07.01.2017, Joint Director, Agriculture, Santhal Pargana Range, Dumka (i.e. Annexure-4) had issued notice to the petitioner and one another regarding recovery of excess payment made to them A.C.P./M.A.C.P. Thereafter the petitioner filed representation before the authority on 10.1.2017 (i.e. Annexure-5) and has prayed that no amount may be recovered from him, but finally, vide Office Order dated 23.02.2017, the respondent had ordered for recovery of excess payment made with respect to first A.C.P. and only thereafter the benefit of third M.A.C.P. will be payable treating it to be given on the basic pay scale of Rs.4,500-7,000/-instead of Rs. 5,000-8,000/-and treating the consequent pay scale after second A.C.P. as Rs. 5,000-8,000/-instead of Rs. 5,500-9,000/-. 14. 5,000-8,000/-and treating the consequent pay scale after second A.C.P. as Rs. 5,000-8,000/-instead of Rs. 5,500-9,000/-. 14. It further transpires that the petitioner has been promoted as Upper Division Clerk and also as the Head Clerk and as such when the benefit of 5th Pay Revision Committee was being implemented and his pay scale was fixed as Rs.4,500-7,000/-with effect from 01.01.1996, thus, he had filed representation before the Fitment Appellate Committee, which was duly constituted by the erstwhile State of Bihar under the Chairmanship of the sitting Justice of the Hon’ble Patna High Court. In the meantime, he was given the benefit of second A.C.P. by office order dated 27.08.2003 and his pay-scale was again fixed at Rs.5,000/--8,000/-. Thereafter, the Fitment Appellate Committee, after due consideration of the representation of the petitioner, has recommended for grant of pay-scale of Rs.5,000-8,000/-to the petitioner, who was posted as the Head Clerk and on the basis of the revision in the pay scale of the petitioner, his consequential pay-scale after 2nd A.C.P. was also revised from Rs.5,000-8,000/-to Rs.5,500-9,000/-on 07.07.2008. However, this fact was not considered by the Secretary of the Agriculture and Sugarcane Development Department while passing the Office Order dated 29.04.2010. 15. It appears that the petitioner was promoted to the post of Head Clerk in the year 1981 which has been admitted by both the sides. 16. It is also not in dispute that at the time of revision in fixation of pay-scale in the light of recommendation of 5th Pay Revision Commission, the petitioner was granted pay scale of Rs. 4,500 – 7,000/-and thus, when the second A.C.P. was granted to the petitioner on 27.8.2003 with effect from 09.8.1999 and consequent pay-scale after 2nd A.C.P. was fixed as Rs.5,000-8,000/-, however, the petitioner had filed representation before the Fitment Appellate Committee with regard to the pay anomaly w.r.t. 5th Pay Revision. 17. It transpires that the Fitment Appellate Committee, after due consideration, had directed for fixation of pay-scale of Rs. 5,000-8,000/-and as a result, the consequent pay scale of Rs.5,000-8,000/-after 2nd A.C.P. (which was granted on the pre revised pay scale of Rs.4,500-7,000/-) was revised to Rs.5,500-9,000/-(as granted on the revised pay-scale of Rs.5,000-8,000/-), which was entered in the service book of the petitioner in the year 2008 itself. 18. 5,000-8,000/-and as a result, the consequent pay scale of Rs.5,000-8,000/-after 2nd A.C.P. (which was granted on the pre revised pay scale of Rs.4,500-7,000/-) was revised to Rs.5,500-9,000/-(as granted on the revised pay-scale of Rs.5,000-8,000/-), which was entered in the service book of the petitioner in the year 2008 itself. 18. Thus, there was no misrepresentation on the part of the petitioner due which his pay was wrongly fixed, rather his pay scale was fixed as per the recommendation of the Fitment Appellate Committee. 19. It transpires that the report of the Fitment Appellate Committee was approved vide resolution dated 21.09.2007 by the State of Jharkhand and the pay-scale of the Head Clerk has been fixed at Rs. 5,000-8,000/-with effect from 01.01.1996. 20. Therefore, it is evident that the pay scale of Rs.5,000-8,000/-was approved in respect of the Head Clerk by the State of Jharkhand in the light of recommendation of the Fitment Appellate Committee, which was constituted to look into the anomalies in the pay scale of various cadres of posts after recommendation of 5th Pay Revision Commission. Therefore, on the recommendation of the Fitment Appellate Committee, the petitioner had been found entitled to the pay-scale of Rs. 5,500-9,000/-with effect from 09.8.1999 after the grant of second A.C.P. and the report of the Fitment Appellate Committee was approved on 21.09.2007. 21. However, vide office order dated 29.04.2010 issued by the Agriculture and Sugarcane Development Department, the pay-scale of the clerks was revised to Rs. 4,000-Rs.6,000/-and it was decided to give the benefit of first A.C.P. and the second A.C.P. in the pay-scale of Rs. 4,500–7,000/-and Rs.5,000-8,000/-respectively, however, while issuing the Office Order dated 29.04.2010 (Annexure A to the counter affidavit), the Department had not taken note of the resolution as contained in Letter No. 2714 dated 21.09.2007, issued by the Department of Finance. 4,000-Rs.6,000/-and it was decided to give the benefit of first A.C.P. and the second A.C.P. in the pay-scale of Rs. 4,500–7,000/-and Rs.5,000-8,000/-respectively, however, while issuing the Office Order dated 29.04.2010 (Annexure A to the counter affidavit), the Department had not taken note of the resolution as contained in Letter No. 2714 dated 21.09.2007, issued by the Department of Finance. Although the petitioner was granted promotion twice, as he was promoted to the post of Upper Division Clerk and thereafter, also promoted to the post of Head Clerk, but so far as the grant of second A.C.P. is concerned, the same was granted not due to any misrepresentation or any fraud on the part of the petitioner, rather it was conferred by the authorities concerned on 18.06.2008, with effect from 09.8.1999, after getting the benefit in the light of the recommendation of the Fitment Appellate Committee dated 21.09.2007, i.e. before issuance of letter dated 29.04.2010 and as such this Court is of the view that any amount paid in excess cannot be recovered at this stage. 22. It also appears that although the petitioner had retired on 30.6.2009, however, the Department of Finance and Planning had issued Letter dated 19.07.2012, (i.e. Annexure-F) to the supplementary counter affidavit, much after superannuation of the petitioner and even also after the superannuation of the petitioner that vide Office order dated 29.04.2010 (i.e. Annexure-A to the counter affidavit) had been issued by the Secretary to Agriculture and Sugarcane Development Department, Govt. of Jharkhand, by which a decision had been taken that the Clerks working in the Regional Offices will be given first A.C.P. and second A.C.P. in the pay-scale of Rs. 4,500-7,000/-and Rs. 5,000-8,000/-respectively. 23. This Court is well aware of the constraints of the State Government as pointed out by the learned Counsel for the State that the petitioner has been granted promotions and as such he was not entitled even to second A.C.P. and third M.A.C.P. and hence, order for recovery from the petitioner has been made by the Department after due consideration. However, this Court finds that at the time of granting second A.C.P. vide order dated 27.08.2003 and even third M.A.C.P. vide order dated 23.02.2017, there was no misrepresentation or fraud committed on the part of the petitioner. However, this Court finds that at the time of granting second A.C.P. vide order dated 27.08.2003 and even third M.A.C.P. vide order dated 23.02.2017, there was no misrepresentation or fraud committed on the part of the petitioner. It is evident from the impugned order dated 23.02.2017, i.e. Annexure-6 to the writ petition & Annexure-B to the counter affidavit filed by the State that although first A.C.P. and second A.C.P. and third M.A.C.P. have been granted on completion of 10 years, 20 years and 30 years of services respectively and the petitioner has completed 30 years of service in the year 2001 itself and as such he was entitled to the 2nd M.A.C.P. as well as third M.A.C.P. in view of the said resolution of the Finance Department, i.e. Memo No. 298 dated 01.09.2009 and which has also been incorporated in the impugned order dated 23.02.2017 as contained in the Annexure-6 to the writ petition as well as in Annexure-B to the counter affidavit filed by the State. 24. So far as the judgment relied upon by the learned counsel for the respondent State in the case of Chandi Prasad Uniyal And Ors. vs. State of Uttarakhand And Ors. reported in (2012) 8 SCC 417 is concerned, the same is not applicable in the facts and circumstances of the present case as in the above case the question that arose for consideration was as to whether overpayment of amount due to wrong fixation of 5th and 6th Pay Scale of Teachers/Principals based on the report of the 5th Pay Commission Report, could be recovered and the Hon’ble Supreme Court has held that recovery could be made as the pay-scale was wrongly fixed due to error on the part of the authority, whereas in the present case, it is evident that the pay scale of the petitioner was fixed in the light of the recommendation of the Fitment Appellate Committee and even the report of the Fitment Appellate Committee was approved by the State of Jharkhand on 21.09.2007. 25. So far as the judgment dated 06.12.2021 of the Co-ordinate Bench of this Court passed in W.P.(S) No. 6037 of 2011 is concerned, the same is not applicable in the facts and circumstances of the present case, as it has also relied upon the aforesaid judgment, i.e. Chandi Prasad Uniyal And Ors. vs. State of Uttarakhand And Ors. 25. So far as the judgment dated 06.12.2021 of the Co-ordinate Bench of this Court passed in W.P.(S) No. 6037 of 2011 is concerned, the same is not applicable in the facts and circumstances of the present case, as it has also relied upon the aforesaid judgment, i.e. Chandi Prasad Uniyal And Ors. vs. State of Uttarakhand And Ors. reported in (2012) 8 SCC 417 . 26. It has been held by the Hon’ble Supreme Court in the case of State of Punjab v. Rafiq Masih reported in (2015) 4 SCC 334 at Para 18 as follows: Para 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). (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.” 27. Thus, in the light of the law laid down by the Hon’ble the Supreme in the case of State of Punjab & Ors. Vs. Rafiq Masih & Ors. Thus, in the light of the law laid down by the Hon’ble the Supreme in the case of State of Punjab & Ors. Vs. Rafiq Masih & Ors. reported in (2015) 4 SCC 334 , no recovery can be made from the petitioner of the present case as the facts and circumstances of the present case involves following situations, in which recoveries by the employers would be impermissible in law :- (a) Recovery from the employees belonging to Class III and Class IV service (For Group ‘C’ and Group ‘D’ service. (b) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (c) 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. 28. Likewise, in the case of Thomas Daniel Versus State of Kerala and Others reported in 2022 SCC OnLine SC 536, recovery Notice was set aside on the ground that excess amount had been paid not on account of any fraud played by the appellant, rather it was paid due to a mistake in interpreting relevant Rules by the authorities. Further, in the light of State of Punjab V Rafiq Masih (Supra), it has been held that it is impermissible in law to make recovery from the employees belonging to Class III and Class IV, retired employees and the employees who are due to retire within one year of the order of recovery. 29. In the present case also the petitioner has already retired on 30.06.2009 and the order of recovery was passed on 23.02.2017 and show-cause notice was issued on 07.01.2017, i.e. after seven and half years from the date of retirement of the petitioner 30. The petitioner was also working as Head Clerk, which is a Grade III post and the recovery will be harsh as it would imbalance all his benefits accrued to him earlier, like his pension and his all other benefits on the basis of his pay scale, will be affected. 31. It further transpires that after filing of the present W.P.(S) No. 3015 of 2017 by the petitioner, a Co-ordinate Bench of this Court had stayed the recovery of excess payment from the petitioner vide order dated 23.06.2017. 31. It further transpires that after filing of the present W.P.(S) No. 3015 of 2017 by the petitioner, a Co-ordinate Bench of this Court had stayed the recovery of excess payment from the petitioner vide order dated 23.06.2017. Therefore, it is evidence that more than fourteen and half years have passed since the superannuation of the petitioner and even a Coordinate Bench of this Court has stayed the recovery from the petitioner. Therefore, it will amount to undue hardship to the petitioner if any order for recovery is passed against him at this stage. His pension and other consequential benefit has been fixed already after his superannuation on 30.06.2009 and hence, in view of judgment of the Hon’ble Supreme Court reported in the case of State of Punjab & Ors. Vs. Rafiq Masih & Ors. reported in (2015) 4 SCC 334 , any order seeking recovery of the excess payment from this petitioner will be too harsh. 32. Thus, on the facts and in the circumstances of the case and In view of the discussions made above and in the light of the law laid down by the Hon’ble Supreme Court, the order dated 23.02.2017 (i.e. Annexure-6) is quashed so far as the petitioner is concerned and no recovery shall be made from the petitioner pursuant to letter dated 23.02.2017 (i.e. Annexure-6), passed by Joint Director, Agriculture, Santhal Pargana Range, Dumka, i.e.. Respondent No.2. 33. The Respondents are directed to extend the benefit of third M.A.C.P. to the petitioner within a period of six weeks from the date of receipt/ production of a copy of this order. 34. Thus, this writ petition is allowed with the above observations and directions.