JUDGMENT : Vaibhavi d. Nanavati 1. Heard Mr. Shalin Mehta, the learned Senior Counsel assisted by Mr. Bharat Jani, the learned advocate appearing for the petitioners and Mr. H. S. Munshaw, the learned advocate appearing for the respondent Board. 2. The petitioners herein in the captioned petitions have challenged the impugned order dated 16.7.2011 issued by the respondent No.1 whereby the first approved higher pay-scale of Rs.5000-Rs.8000 is sought to be revised to Rs.4500-Rs.7000 with effect from 30.12.2000 and has consequently ordered to recover the excess payment made on account of cancellation of pay scale first approved higher grade pay scale of Rs.5000- Rs.8000 revised to Rs.4500-7000 and in view thereof all the petitions are heard together and decided analogously. The Special Civil Application No.2908 of 2012 is treated as lead matter and the order passed in the Special Civil Application No.2908 of 2012 would govern all the captioned petitions. 3. Brief facts leading to the filing of the present petitions read thus :- 3.1 The petitioners herein completed 09 years of services on 30.12.2000 and in view of the Government Notification dated 16.8.1994 bearing No.PGR-1194-44-MA were given revision of pay from Rs.1200-2040 to Rs.1400-2600. The Finance Department, State of Gujarat issued Resolution 7.1.1998 applying Fifth Pay Commission appointed by the Central Government and made it applicable to all the employees of the State of Gujarat and in the said Resolution the pay Scale of Rs.1200-2040 was revised to Rs. 4000 - Rs. 6000 with effect from 1.1.1996 and the pay scale of Rs. 1400 - Rs. 2600 was revised to Rs. 5000 - Rs. 8000 with effect from 1.1.1996. 3.2 The office order came to be issued on 26.7.2001 to all the petitioners whereby the pay scales of all the petitioners came to be revised from Rs. 4000 - Rs. 6000 to Rs. 5000- Rs. 8000- with effect from 30.12.2000. 3.3 The Finance Department of State of Gujarat passed a Resolution dated 14.8.1998 whereby it was resolved that pay scale of Rs. 4000- Rs. 6000 is revised as Rs. 4500- Rs. 7000 with effect from 1.1.1996. The Finance Department of State of Gujarat also passed resolution dated 29.8.1998 which clearly states in paragraph No.3 that the cases in which already pay fixed and scrutinized by Local Fund Auditor cannot be reopened. 3.4 In the case of the petitioners Higher Pay Scale of Rs. 5000 - Rs. 4500- Rs. 7000 with effect from 1.1.1996. The Finance Department of State of Gujarat also passed resolution dated 29.8.1998 which clearly states in paragraph No.3 that the cases in which already pay fixed and scrutinized by Local Fund Auditor cannot be reopened. 3.4 In the case of the petitioners Higher Pay Scale of Rs. 5000 - Rs. 8000 was given effect from 30.12.2000, was already scrutinized and approved by the Local Fund Audit and accordingly an entry was made in the service book. 3.5 The petitioners came to know that in the next audit of Local Fund also the pay-scale was approved without any query or audit remark. Even the Account Officer and Verification Unit Examiner and Local Fund Audit also issued a sheet to the petitioner on 17.6.2011 in which the pay-scale was fixed on the basis of higher pay scale of Rs.5000-8000 was revised to Rs.9300-34800. After almost 10 years of fixation of the pay Scale of Rs. 5000 - Rs. 8000 fixed on the basis of Resolution dated 16.8.1994 and on the basis of Resolution dated 7.1.1998 office order came to be passed on 16.7.2011 against all the petitioners by respondent No. 1 whereby on the basis of remark of Assistant Director of Local Fund Audit, the pay scale of the petitioners came to be cancelled from Rs. 5000 - Rs. 8000 and revised at Rs. 4500 - Rs. 7000 with retrospective effect from 30.12.2000 and also passed an order of recovery from the salary of the petitioners, Annexure-I to the petition. 3.6 Being aggrieved by the impugned action undertaken by the respondents, the petitioners preferred a representation to the respondent No.2 that the higher pay-scale on completion of 09 years of service, given to them fixing their pay-scale from Rs. 4000 - Rs. 6000 at Rs. 5000 - Rs. 8000 cannot be cancelled or revised to Rs. 4500 - Rs.7000 as per Government's own notifications issued from time to time without granting any opportunity of hearing to the petitioners. It was submitted that there was no default or error on the part of the petitioners. The petitioners have not made any misrepresentation or gave wrong information on the basis of which earlier pay scale of Rs. 5000 -Rs. 8000 was fixed. In view thereof, the benefit of the higher pay scale cannot be cancelled or revised and that too with retrospective effect. The petitioners have not made any misrepresentation or gave wrong information on the basis of which earlier pay scale of Rs. 5000 -Rs. 8000 was fixed. In view thereof, the benefit of the higher pay scale cannot be cancelled or revised and that too with retrospective effect. The said representation came to be rejected by the respondent No.1 by communication dated 17.2.2012 (Annexure-K). 4. In light of the aforesaid facts, the petitioners herein are constrained to approach this Court by preferring the present petitions under Article 226 of the Constitution of India and prayed for the following reliefs. “(a) This honourable court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or an direction quashing and setting appropriate writ, order or direction aside the impugned office order dated 16/7/2011 issued by respondent No. 1 declaring it to be arbitrary, illegal, improper, unjust, unreasonable, bad in law and being violative of the respondents own resolutions issued from time to time and also in violation of the provisions of the Bombay Civil Services (Pay Revision) Rules [now Gujarat Civil Services (Pay Revision) Rules] as well as in violation of Articles 14 and 16 of the Constitution of India; (b) This honourable court may further be pleased to quash and set aside the statement of fixation of pay scale in case of petitioner No. 6 Jagdish A. Patel issued by respondent No. 3 Taluka Development Officer, Mandavi, Kachchh on 3/1/2049 revising his pay scale from Rs. 5000- Rs. 8000 [at Rs 4500 - Rs. 7000]. 8(b)(1) This honourable court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned notification dated 14/12/2018 issued by respondent No. 4 declaring it to be arbitrary, illegal, improper, discriminatory, unjust, unreasonable, bad in law and being violative of provisions of Bombay Civil Services (Pay Revision) Rules now Gujarat Civil Services (Pay Revision) Rules] as well as in violation of Article 14 and 16 of the Constitution of India. (c) Pending hearing, admission and final disposal of this petition, this honourable court may further be pleased to stay implementation, operation and execution of the office order dated 16/712011 issued by respondent No. 1 ordering recovery of the excess payment made to the petitioners on account of cancellation of Higher Grade Pay Scale of Rs.5000- Rs. 8000 [revised at Rs. 4500- Rs. 7000]. (d) Pending hearing. admission and final disposal of this petition, this honourable court may further be pleased to stay implementation, operation and execution of the order / statement of recovery issued by Development Officer, Mandavi Kachchh, in case of petitioner No. 6 Jagdish A. Patel on 3/1/2012 and further be pleased to direct the respondents not to implement the said order| statement of recovery henceforth during the pendency of this petition; (e) This honourable court may be pleased to pass such other and further relief(s) as the facts and circumstances of the present case may require. (f) This honourable court may be pleased to provide for the cost of this petition.” Submissions on behalf of the petitioners :- 5. Mr. Shalin Mehta, the learned Senior Counsel appearing for the petitioners submitted that the petitioners herein came to be appointed as Livestock Inspectors vide order dated 2.1.1992 issued by the respondent No.1 in the pay-scale of Rs.1200-1400. Upon completion of 09 years services on 30.12.2000 by virtue of Government Notification dated 16.8.1994 they were given the revised pay-scale of Rs.1400- 2600. The aforesaid action undertaken by the respondent authority dated 16.7.2011 whereby upon remark of the Local Fund Audit the pay-scale of the petitioners of Rs.5000-8000 came to the unilaterally cancelled and revised at Rs.4500-7000 with retrospective effect from 30.12.2000 and also passed an order of recovery from the salary of the petitioners is violative of principles of natural justice. 5.1 Mr. Mehta, the learned Senior Counsel submitted that the aforesaid action undertaken retrospectively against the petitioners recovery of the amount from the date when the petitioners pay-scale came to be revised on completion of 09 years service from Rs.4000-6000 to Rs.5000-8000 with effect from 30.12.2000 by order dated 26.7.2001, after a delay of more than 10 years from the date on which the petitioners were granted higher pay-scale of Rs.5000-8000 under the Government Resolution dated 16.8.1994. 5.2 It is submitted that the petitioners herein are actually eligible for the said pay-scale from the Government Resolution dated 16.8.1994. 5.2 It is submitted that the petitioners herein are actually eligible for the said pay-scale from the Government Resolution dated 16.8.1994. It is submitted that the petitioners herein are rightly granted the said pay-scale and order of recovery dated 16.7.2011 is required to be quashed and set aside. 5.3 Mr. Mehta, the learned Senior Counsel placed reliance on the ratio as laid down by the Hon’ble Apex Court in the case of State of Punjab vs. Rafiq Masih, reported in AIR 2015 SC 696 . Placing reliance on para-12 of the said decision, it is submitted that the case of the petitioners herein stand squarely covered by the ratio as laid down in the aforesaid judgment in view of the fact that the petitioners herein are also Class-3 employees and as per the direction issued by the Hon’ble Apex Court, the case of the petitioners fall within the situation summarized by the Hon’ble Apex Court more particularly Clauses (1), (3) and (5). In light of the aforesaid submissions, it is submitted that the present petitions be allowed. 5.4 Mr. Mehta, the learned Senior Counsel placed reliance on the decisions rendered in the Special Civil Application No.9537 of 2001 in the case of Kanjibhai A. Solanki vs. State of Gujarat and Special Civil Application No.9537 of 2001 wherein the ratio laid down by the Hon’ble Apex Court in 2009 AIR SCW 1871 is referred wherein it is submitted that after almost 10 years from the date of fixation of higher pay- scale, the pay scale already fixed cannot be cancelled or revised and the recovery cannot be effected with retrospective effect, is required to be quashed and set aside. Submissions on behalf of the respondent No.1 :- 6. Mr. H. S. Munshaw, the learned advocate appearing for the respondent Board relied on the affidavit-in-reply filed by the respondent No.1. Placing reliance on the same Mr. Munshaw, the learned advocate submitted that the petitioners were employed by Kutch District Panchayat in the cadre of Livestock Inspector after following due procedure of recruitment in the pay scale of Rs.1200 - 2040 and revised to Rs.4000- 6000/- and were entitled to first higher pay-scale under the provisions of G. R. dated 14.08.1998 issued by the State of Gujarat through Finance Department. The petitioners were by inadvertence in the pay scale of Rs 5000-8000/-, whereas actually the petitioners were in fixed pay scale of Rs.4500 -7000/-. Upon verification by the Office of Assistant Examiner of Local Fund Audit it came to the notice to the respondent that by inadvertence the petitioners herein were placed in the pay-scale Rs 5000-8000/- instead of pay scale of Rs.4500 -7000/- at the time of release of first higher pay-scale. In view thereof, Audit Para-84 was submitted in this regard to the Accounts Officer of Kutch District Panchayat who in turn addressed a letter dated 07.07.2011 to the Head of Animal Husbandry Branch of Kutch District Panchayat with respect to the aforesaid. 6.1 It was also submitted that the said issue is pending before Panchayati Raj Committee of Gujarat Legislative Assembly. It is submitted the said error is rectified by the Dy, Director of Animal Husbandry, Kutchn District Panchayat by passing in all 03 orders dated to 20.07.2011, 19.09.2011 and 28.09.2011 with respect to all 18 employees of the cadre of Livestock Inspectors placing the petitioners in the pay Scale of Rs.4500 - Rs.7000/- with retrospective effect from 30.12.2000 and also implemented the same by drawing salary on the basis of the pay scale of Rs.4500 – Rs.7000/-. 6.2 It was submitted that the petitioners herein also filed an undertakings to the aforesaid effect that the petitioners abide by corrective measures and recovery. The said undertakings are duly produced at Annexure-D. 6.3 It was submitted that the petitioners herein are liable to repay the excess amount paid to them as per the calculation by the Authority. It was also submitted that the petitioners herein are in service and in view thereof the ratio as laid down in AIR 2015 SC 696 (Supra) would not be applicable to the present petitioners herein though they are Class-3 employees. 6.4 It was submitted that the estimated amount that is to be recovered from such employees is to the tune of Rs.36 lacs and the petitioners herein are wrongfully granted the benefit. In view thereof, they are required to repay to the public exchequer. 6.4 It was submitted that the estimated amount that is to be recovered from such employees is to the tune of Rs.36 lacs and the petitioners herein are wrongfully granted the benefit. In view thereof, they are required to repay to the public exchequer. 6.5 It was submitted that so far as the cadre of the petitioners is that of Livestock Inspector, where there is no avenue for promotion and in view thereof such employees are entitled to the benefits of first as well as second higher pay scale as provided under G.R. dated 14.08.1998. 6.6 It was submitted that the petitioners herein are entitled to pay scale as per the provisions of Revision of Pay Rules 1996, from time to time Government Resolutions as well| as administrative instructions qua the benefit of higher pay Scales. It was submitted that the corrective measures taken by the respondent No.1 do not violate provisions of the Constitution of India and the petitioners are not put in any inconvenience or hardship due to corrective measures initiated by the respondent authority upon the audit undertaken by the respondent authority wherein it came to the notice that the petitioners are erroneously granted higher pay-scale of Rs.4500 - Rs.7000. It is well within the right of the respondent herein to recovery the said amount which is erroneously extended to the petitioners herein. 6.7 Placing reliance on the aforesaid submissions, Mr. Munshaw, the learned advocate submitted that the recovery undertaken by the respondent herein is just and proper and no interference is called for in the impugned order dated 16.7.2011 passed by the respondent authority and it is open for the respondent authority to recover the amount which is erroneously extended in favour of the petitioners herein. 6.8 To substantiate the above submissions, Mr. Munshaw, the learned advocate placed reliance on the following decisions :- (a) In the case of Chandi Prasad Uniyal and Ors., vs. State of Uttarakhand and Ors., reported in (2012) 8 SCC 417 . (b) In the case of Union Territory, Chandigarh and Ors. vs. Gurcharan Singh and Anr., reported in (2014) 13 SCC 598. (c) Special Civil Application No.7941 of 2929, date of order 2.8.2021. (d) In the case of Thomas Daniel vs. State of Kerala and ors, reported in 2022 SCC OnLine SC 536. (b) In the case of Union Territory, Chandigarh and Ors. vs. Gurcharan Singh and Anr., reported in (2014) 13 SCC 598. (c) Special Civil Application No.7941 of 2929, date of order 2.8.2021. (d) In the case of Thomas Daniel vs. State of Kerala and ors, reported in 2022 SCC OnLine SC 536. 6.9 In view of above, it is submitted the aforesaid judgments laid down the ratio that it is always open for the respondent authority to recovery the amount which is extended to the employee erroneously. 7. Mr. Mehta, the learned Senior Counsel in rejoinder reiterated the contentions raised earlier, however he submitted that the undertakings relied upon by Mr. Munshaw, the learned advocate appearing for the respondent in no way be helpful to the respondent authority substantiating the case that the recovery was justified placing reliance on the undertakings duly produced at pages 154, 160 197 and 199. It is submitted that the said undertakings is given by the petitioners and the recovery is initiated by the respondent authority after a period of 10 years and in view thereof the said undertaking filed by the petitioners at the time when the petitioners were granted higher pay-scale on 26.7.2001 would be insignificant of recovery undertaken by the respondent authority. 7.1 It was also reiterated that the petitioners otherwise are entitled to the higher pay-scale of Rs.5000-8000 pursuant to the Government Notification dated 16.8.1994 wherein the petitioners are eligible for the said benefit. As per the Resolution 7.1.1998 issued by the Finance Department, State of Gujarat pay scale of Rs. 1400 - Rs. 2600 was revised to Rs. 5000 - Rs. 8000 with effect from 1.1.1996 and the petitioners herein are rightly extended the said benefit. It is reiterated that any recovery beyond the period of 05 years squarely cover the case of the petitioners as per AIR 2015 SC 696 (Supra). 7.2 Mr. Mehta, the learned Senior Counsel relied on order passed in the Special Civil Application No.14407 of 2015 judgment dated 26.2.2019, wherein the ratio laid down in Rafiq Masih, AIR 2015 SC 696 (Supra) was relied on and it was held that the order of recovery after a period of 25 years was beyond reasonable period and without granting an opportunity of hearing. The aforesaid order passed in Special Civil Application No.14407 of 2015 was subject matter of Appeal being Letters Patent Appeal No.203 of 2021. The aforesaid order passed in Special Civil Application No.14407 of 2015 was subject matter of Appeal being Letters Patent Appeal No.203 of 2021. Placing reliance on the same it was submitted that the said order was confirmed by the Hon’ble Division Bench relying upon the ratio laid down by the Hon’ble Apex Court in the case of Rafiq Masih (Supra). Analysis :- 8. Having heard the learned advocates appearing for the respective parties the undisputed facts emerge for consideration of this Court that; The petitioners herein came to be appointed as Livestock Inspectors in the pay-scale of Rs.1200-1400 by order dated 2.1.1992 issued by the respondent No.1. Upon completion of 09 years of services on 30.12.2000 by virtue of Government Notification dated 16.8.1994 bearing No.PGR-1194-44-MA the pay-scale of the petitioners was revised from Rs.1200-2040 to Rs.1400-2600 in the same cadre without promotion (Annexure- B). The Finance Department issued Government Resolution dated 7.1.1998 applying Fifth Pay Commission granted by the Central Government making it applicable to the employees of the State Government. The pay scale of Rs.1200-2040 was revised to Rs. 4000 - Rs. 6000 with effect from 28.9.1998, 27.9.1998 and 28.9.1998 respective and the pay scale of Rs. 1400 - Rs. 2600 was revised to Rs. 5000 - Rs. 8000 with effect from 1.1.1996. The petitioners herein were extended the benefit of said G.R. dated 7.1.1998 by office order dated 26.7.2001 wherein the petitioners herein came to be placed in the pay-scale of Rs. 5000- Rs. 8000-. In the meantime, by G.R. dated 14.8.1998 it was resolved that the pay-scale of Rs.4000-6000 be revised to Rs.4500-7000 with effect from 1.1.1996 (Annexure-E) G.R. dated 29.8.1998, (paragraph No.3) states that the pay already fixed and scrutinized by Local Fund Auditor cannot be reopened (Annexure-F). In light of the aforesaid G.R., the petitioners came to be granted the pay-scale of Rs. 5000- Rs. 8000- instead of Rs.4500-7000. The respondent authority noticed the aforesaid anomanly after a period of 10 years that the petitioners were erroneously granted the aforesaid pay-scale of Rs. 5000- Rs. 8000. In view thereof, by the impugned order dated 16/20.7.2011 revised the pay-scale of the petitioners from 30.12.2000, from the date on which the petitioners were granted the higher pay-scale of Rs. 5000- Rs. 8000 to Rs.4500-7000 and also ordered recovery of the said amount from the petitioners. 9. 5000- Rs. 8000. In view thereof, by the impugned order dated 16/20.7.2011 revised the pay-scale of the petitioners from 30.12.2000, from the date on which the petitioners were granted the higher pay-scale of Rs. 5000- Rs. 8000 to Rs.4500-7000 and also ordered recovery of the said amount from the petitioners. 9. At this stage, it is apposite to refer to the undertaking that was given by the petitioners which are duly produced by the respondent from pages-154 to 177. It is apposite to refer to one of the undertakings which is at page-111 dated 21.7.2001, which reads thus (true translation) :- “Undertaking I the undersigned Mr.Rajendra N. Patel, Designation- LI (Livestock Inspector) hereby agree that on account of pay fixation in pursuance of the Government Resolution No.PGR/ 1098/ 41, dated 14/08/1998 of the Finance Department regarding new Scheme of Higher Grade Scale; upon finalizing the pay-scale, I will return the additional amount proportionally paid to me, if any. Place : Dhhori Date : 21/07/2001 Sd/- Name : Rajendra N. Patel. Designation : Livestock Inspector, Vaterinary Air Centre, Dhhori.” The petitioners have given undertaking on 21.7.2001 with respect to the G. R. dated 14.8.1998 that if there would be any recovery, the petitioner undertook to return the same. In the course of hearing it is submitted that all the petitioners have given such undertaking and the learned advocates appearing for the respective parties also accept that the undertaking is given by the petitioners. The aforesaid undertaking was given by the petitioners in the year 2001 at the time when the petitioners were granted the benefit of higher pay-scale of Rs.4000-6000. The recovery came to be initiated after a period of 10 years. 10. It is also apposite to deal with the judgments relied upon by Mr. Munshaw, the learned advocate appearing for the respondent authority. (a) In the Special Civil Application No.7941 of 2929, date of order 2.8.2021, while the recovery was permitted, in the facts of the said case the petitioners were entitled to the benefit of promotion on passing of CCC examination. In the said case the petitioner passed the examination on 6.2.2014 and in view thereof the benefit of promotion was extended with effect from 1.4.2011 for which the petitioner was not entitled, was recovered from the salary between the post of Junior Clerk and the promoted as Senior Clerk. In the said case the petitioner passed the examination on 6.2.2014 and in view thereof the benefit of promotion was extended with effect from 1.4.2011 for which the petitioner was not entitled, was recovered from the salary between the post of Junior Clerk and the promoted as Senior Clerk. The aforesaid is not applicable to the facts of the present case in view of the fact that the parties in the said case were governed by the Government Resolution No.PRCh/102005/ 1519/Part-1/C dated 22.7.2013 of the General Administrative Department that, the employees who did not pass C.C.C. examination were required to pass the same till 31.12.2013, failing which the benefit of promotion given to them be withdrawn. (b) In the case of Union Territory, Chandigarh and Ors. vs. Gurcharan Singh and Anr., reported in (2014) 13 SCC 598, in the said case the Hon’ble Apex Court held that, it was revealed from the option form that the employee had agreed to get his pay fixed as per the minimum of pay in the pay-scale of the Clerk, the post to which he had been re-employed. The employee upon superannuation was receiving regular pension from the Indian Arm for his past services rendered to the Indian Army. In view of the option form exercised by the employee, the services rendered by the employee to the Indian Army cannot be taken into account for the purposes of his pay fixation as the employee would be getting his pension and there would not be any deduction from his pension or his salary on account of the pension received by him from the Indian Army. The Hon’ble Supreme Court held that, if nothing has been deducted from the pension of the employee upon being re-employed and as the employee would continue to get his pension and other benefits from the Army for his past services, under such circumstances, the employee was not eligible to get his higher pay-scale taking into account services rendered by the employee to the Indian Army. Under such circumstances, employee does not have any right to get any further advantage in the nature of higher salary or a higher pay-scale, especially when nothing from his salary was being deducted on account of his getting pension or perquisites from the earlier employer. Under such circumstances, employee does not have any right to get any further advantage in the nature of higher salary or a higher pay-scale, especially when nothing from his salary was being deducted on account of his getting pension or perquisites from the earlier employer. In the facts of the present case, the petitioners herein are in service and recovery is effected from their salary account on the ground that there is no promotional avenue qua the petitioners herein who are Livestock Inspectors and would be governed by the Government Notification dated 16.8.1998 bearing No.PGR-1194-44-MA wherein the petitioners are entitled to the pay-scale of Rs.4500-7000/-. Such recovery is initiated after a period of more than 10 years the, same is undertaken in violation of the principles of natural justice. (c) In the case of Chandiprasad Uniyal and Ors., vs. State of Uttarakhand and Ors., reported in (2012) 8 SCC 417 . In the aforesaid decision it was held that the recovery was permissible if the amount is paid in excess due to bonafide mistake. The same would affect the public exchequer and in view thereof the recovery was permitted. The aforesaid is well settled principles of law as laid down by the Hon’ble Apex Court, however in the facts of the present case the recovery of amount paid to the petitioners is undertaken beyond reasonable period i.e. after 10 years. (d) Mr. Munshaw, the learned also submitted that the petitioners herein are in service, they have filed undertakings, as referred above, on 21.7.2001 agreeing that on account of pay fixation in pursuance to the Government Resolution dated 14.8.1998 of the Finance Department regarding new scheme of higher pay-scale, upon finalizing the pay-scale, the petitioners would return the additional amount proportionally paid to the petitioners. It is now not open for the petitioner herein to arise a grievance when the recovery is effected because of the anomaly in granting the higher pay-scale to the petitioner as Rs.5000-8000/- instead of Rs.4500-7000/- to which the petitioners herein are entitled to under the said Government Resolution dated 14.8.1998. Placing reliance on the aforesaid Mr. Munshaw, the learned advocate submitted that the ratio laid down in Rafiq Masih (Supra) in view thereof is not applicable to the facts of the present case. Placing reliance on the aforesaid judgments Mr. Placing reliance on the aforesaid Mr. Munshaw, the learned advocate submitted that the ratio laid down in Rafiq Masih (Supra) in view thereof is not applicable to the facts of the present case. Placing reliance on the aforesaid judgments Mr. Munshaw, the learned advocate appearing for the respondent authority submitted that the respondent authority has followed the dictum of Hon’ble Apex Court, as referred above. 11. In the facts of the present case, in the opinion of this Court, the parties are governed by the following position of law :- (a) In the case of State of Punjab vs. Rafiq Masih, reported in AIR 2015 SC 696 , para-12 reads thus :- “12. 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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class- IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from 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. (b) In the case of High Court Of Punjab & Haryana Versus Jagdev Singh, reported in AIR 2016 SC 3523 , paragraphs 11 and 12 read thus :- “11. In State of Punjab & Ors etc. (b) In the case of High Court Of Punjab & Haryana Versus Jagdev Singh, reported in AIR 2016 SC 3523 , paragraphs 11 and 12 read thus :- “11. In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc, (2015) 4 SCC 334 , this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law: "(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from 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." (emphasis supplied). 12. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.” (c) In the case of Thomas Daniel vs. State of Kerala and ors, reported in 2022 SCC OnLine 536, para-18 reads thus :- “18. In State of Punjab and Others v. Rafiq Masih (White Washer) and Others, (2015) 4 SCC 334 wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. In State of Punjab and Others v. Rafiq Masih (White Washer) and Others, (2015) 4 SCC 334 wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus: "8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. xxx xxx xxx 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. (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." (d) In the decision rendered in Special Civil Application No.14407 of 2015 judgment dated 26.2.2019, paragraphs 5 to 6 read thus :- “5. Having heard the learned advocates for the respective parties and having gone through the material on record ex- facie it is reflecting that this power which has been sought to be exercised is after almost a period of 25 years. Looking to the tabular chart which has been given, it has been undisputedly found that upon attaining the pos graduation, appropriate pay scale have been extended and such orders have been given sanctioned. The details whereof can be seen from the chart and therefore, this action which is sought to be initiated is after a period of 25 years which under no circumstance is possible to be accepted. 5.1. Yet another circumstance which is reflecting clearly that the order in question dated 10.08.2015 is practically not reflecting any reasons nor it is passed after hearing and extending the opportunity to the petitioners. It is the settled position of law that every action if entailing other consequential and monetary loss, the affected person must be given opportunity of hearing. Having been not done so, undisputedly, the order in question is in flagrant violation of the principles of natural justice. In addition to it, it is also reflecting that there no valid reasons available in the order which is placed at page 30 of the petition compilation. Having been not done so, undisputedly, the order in question is in flagrant violation of the principles of natural justice. In addition to it, it is also reflecting that there no valid reasons available in the order which is placed at page 30 of the petition compilation. By now right from the year 2010 onwards, the Apex Court has propounded that the reasons are nothing by heart beats of the decision making process and as such a laconic order may not be recognized in the eye of law. When that be so, the impugned order is not possible to be accepted as a valid order. Considering this situation, the Court is inclined to accept the contention raised by the learned advocate for the petitioners. Additionally, the Court has advantage of the observations made by the Apex Court in the case of Rafiq Masih (supra) in which the issue of recovery was dealt with by the Court and after formulating the contingencies, the Apex Court has suggested that in such kind of eventuality, no order of recovery be passed. Considering this proposition of law laid down by the Apex Court, the Court is not inclined to accept the stand of the respondent authority. The relevant observations contained in para 12 is reproduced hereinafter of which the Court has taken note of, in addition thereof. “12. 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 herein above, we may as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group “C” and Group “D” service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from 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. (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 arrived 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.” 6. In view of the aforesaid set of circumstances, and in view of the situation which is prevailing on record, a case is made out by the petitioners. Resultantly, the impugned order dated 10.08.2015 is quashed and set aside. Rule is made absolute to the aforesaid extent with no order as to costs.” (e) In the Letters Patent Appeal No.203 of 2021 order dated 16.10.2023, paragraph-7 reads thus :- “7. On bare perusal of the order dated 10.08.2015 the only reference which is made in the order impugned is that there is no provision in the Rules about entitlement of pay scale of Professor Grade I on fulfillment of Post Graduation qualification. The learned Single Judge has proceeded to quash and set aside curtailment of pay scale and consequential order of recovery which is undetaken almost after unreasonable period of 25 years. The learned Single Judge has followed the decision of the Hon’ble Supreme Court in the case of Rafiq Masih (supra) where the recovery in the case of government employees was dealt with by the Court and after formulating contingencies, the Hon’ble Supreme Court has held that no order of recovery could be passed in such instances. The Hon’ble Supreme Court has held that recovery by the employer would be impermissible in law when the excess payments have been made for a period in excess of five years, before the order of recovery is issued. Noticing the period of 25 years, we are in complete agreement with the reasons assigned by the learned Single Judge in quashing and setting aside the order dated 10.08.2015 directing the recovery of the amount which is otherwise held impermissible in law. No error can be found with the approach of the learned Single Judge in allowing the petition.” 12. Noticing the period of 25 years, we are in complete agreement with the reasons assigned by the learned Single Judge in quashing and setting aside the order dated 10.08.2015 directing the recovery of the amount which is otherwise held impermissible in law. No error can be found with the approach of the learned Single Judge in allowing the petition.” 12. Having considered the facts of the present case, the documents on record and the position of law, as referred above, this Court is inclined to pass the following order :- (A) It is undisputed that the petitioners herein were employed by Kutch District Panchayat in the cadre of Livestock Inspector upon following due procedure of recruitment in the pay scale of Rs.1200 - 2040 and revised to Rs.4000- 6000/- and were entitled to the first higher pay-scale in accordance with the G. R. dated 14.08.1998 issued by the State of Gujarat through Finance Department. The petitioners were entitled to the first higher pay-scale and were to be fixed in the pay-scale of Rs.4500 -7000/-, however through inadvertence the petitioners were placed in the pay scale of Rs 5000-8000/- with effect from 29.8.1998 in the same cadre without promotion. The Finance Department of the State of Gujarat issued resolution in respect of applying Fifth Pay Commission appointed by the Central Government on 7.1.1998 and made it applicable to all the employees of the State of Gujarat wherein in the said resolution the pay-scale of Rs.1200-2040 was revised Rs.4000-6000 with effect from 1.1.1996 and pay-scale of Rs.1400-2600 was revised to Rs.5000-8000 with effect from 1.1.1996. Thus, with effect from 1.1.1996 revised pay-scale of Rs.4000-6000 was applicable on account of implementation of Fifth Pay Commission. All the petitioners were extended benefit of revision of pay as per the Fifth Pay Commission (Annexure- C). By office order dated 15.5.2001 the pay-scale of all the petitioners came to be revised from Rs.4000-6000 to Rs.5000- 8000 with effect from 29.8.1998 by order dated 15.5.2001 by the respondent No.1. On 14.8.1998, the Finance Department, State of Gujarat issued resolution that the pay-scale of the petitioner was revised from Rs.4000-6000 to Rs.4500-7000 with effect from 1.1.1996. By office order dated 15.5.2001 the pay-scale of all the petitioners came to be revised from Rs.4000-6000 to Rs.5000- 8000 with effect from 29.8.1998 by order dated 15.5.2001 by the respondent No.1. On 14.8.1998, the Finance Department, State of Gujarat issued resolution that the pay-scale of the petitioner was revised from Rs.4000-6000 to Rs.4500-7000 with effect from 1.1.1996. The petitioners herein are governed by the said Resolution dated 14.8.1998, as referred above, duly produced at Annexure.E. The petitioners belong to the cadre of Livestock Inspector wherein there is no avenue for promotion and in view thereof such employees are entitled to the benefits for first as well as the second higher pay-scale as provided in the Government Resolution dated 14.8.1998. The said Government Resolution, as referred above, provides that the first higher pay-scale against the pay-scale of Rs.4000-6000 is Rs.4500-7000 and the petitioners are entitled to the benefit of first higher pay-scale pursuant to the Government Resolution dated 14.8.1998 and they are entitled to the pay- scale of Rs.4500-7000. (B) In the facts of the present case also, it is also not in dispute that the petitioners have also filed undertaking on 21.7.2001 as referred above, that the petitioners would return the additional amount proportionally paid to the petitioners, if there is any anomaly in the pay fixation pursuant to the Government Resolution dated 14.8.1998, as referred above, in para-9. In view thereof, the petitioners were aware that the petitioners would be governed by the Government Resolution dated 14.8.1998 and if there would be any recovery, the petitioners would be bound by the same. At the time of release of first higher pay-scale the petitioners herein submitted undertaking to the respondent authority to abide by any corrective measures and recovery, is also not in dispute. (C) The aforesaid recovery is initiated by the respondent authority upon the anomaly having been noticed by the Assistant Examination of Local Fund Audit at Bhuj whereby through inadvertence the petitioners were placed in the pay-scale of Rs.5000-8000 instead of Rs.4500-7000 at the time of release of the first higher pay-scale and the audit para-84 was submitted to the Accounts Officer, Kutchh District Panchayat who in-turn address the letter dated 7.7.2011 to the Head of the Animal Husbandry Branch of Kutchh District Panchayat. With regard to the aforesaid, a copy of the said letter which is duly produced at Annexure-B to the affidavit filed by the respondent authority. The aforesaid was rectified by the Dy. Director of Animal Husbandry, Kutchh District Panchayat by passing the three impugned orders dated 16/20.7.2011, 19.9.2011 and 28.9.2011 including all the employees of cadre of Livestock Inspectors. The petitioners came to be placed in the pay-scale of Rs.4500- 7000 with retrospective effect from 1.1.1996 and the same was implemented and the petitioners herein are drawing the salary on the basis of pay-scale of Rs.4500-7000. The said orders are implemented and the pay-scale are corrected. 12.1 Upon perusal of the record, it is not in dispute that all the petitioners herein upon completion of 09 years of service on 28.9.1998, 27.9.1998 and 28.9.1998 respectively in view of Government Notification dated 16.8.1994 bearing No.PGR-1194- 44-MA given revision of pay from Rs.1200-2040 to Rs.1400- 2600. The said benefit was extended upon completion of 09 years on 30.12.2000. On 15.5.2001, the pay-scale of all the petitioners herein was revised from Rs.4000-6000 to Rs.5000- 8000 upon scrutiny and due approval by the Local Fund Auditor and accordingly an entry was made in the service book of the petitioners. The aforesaid is duly produced at Annexure-G wherein the service book of the petitioners reflect the effect of the higher pay-scale of Rs.5000-8000. It is also not in dispute that the Accounts Officer / Pay Verification Unit Examiner of the Local Fund Audit issued a sheet to the petitioner No.1 in which the pay-scale is fixed on the basis of higher pay-scale of Rs.5000-8000 was revised to Rs.9300- 34800. After almost 10 years the respondent authority passed the impugned orders dated 28.9.2011 revising the pay-scale on the basis of the remark of the Assistant Director of Local Fund cancelling the pay-scale of the petitioners of Rs.5000-8000 and revising the same to Rs.4500-7000 with retrospective effect from 28.9.1998, 27.9.1998 and 28.9.1998 and also passed the order of recovery from the salary of the petitioners. In the opinion of this Court, such recovery could not have been effected with retrospective effect from the petitioners’ salary account. In the opinion of this Court, such recovery could not have been effected with retrospective effect from the petitioners’ salary account. The ratio as laid down in the Rafiq Masih (Supra) squarely covers the case of the present petitioners whereby considering the undisputed fact that the petitioners herein are class-3 employees, the recovery is effected after a period of 05 years which in the opinion of this Court is beyond reasonable period. The aforesaid decision of the Hon’ble Supreme Court in para-12 provides for situation in which recovery is impermissible. In the opinion of this Court, the case of the petitioners falls in Clause; (i) provides, recovery from employee belonging to Class-3 and 4. Clause (iii) provides, recovery from employee, when excess payment has been made for a period of 05 years before the order of recovery is issued. Clause (v) provides, in any other case where the arrive 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. In Rafiq Masih (Supra), it is held by the Hon’ble Supreme Court that the order passed by the employer seeking recovery of the monetary benefits wrongly extended to the employee can be only, in cases where such recovery would result in hardship of a nature which would far outweigh the equitable balance in the of the employer’s right to recover i.e. interference would be called for only in such cases where there would be equitable balance in the employer’s right to recover the payment made. In view of the constitutional mandate equity and good conscience in the matter of livelihood of people of the country, has to be the basis of all the governmental actions. The Government employee is primarily dependent on his wages and if deduction is made from his or her wages, it should not be deduction which would be made difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. If the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. If the mistake of making a wrongful payment is detected 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 payments mistakenly made to the employee. Recovery after several years of the implementation of the pay-scale would not be just and proper. Recovery of excess payments discovered after five years would be iniquitous and arbitrary, and the same is violative of Article 14 of the Constitution of India. The ratio as laid down in AIR 2016 SC 3523 (Supra) the Hon’ble Supreme Court has expressed the view that the recovery should be made in a reasonable installments. In view thereof, the order of recovery retrospectively from the petitioners’ salary account without opportunity of hearing, in the opinion of this Court, harsh and iniquitous. 12.2 In the opinion of this Court, the recovery can only be undertaken by the respondent if the employee has entered into any alleged fraud or misrepresentation. In the facts of the present case, the respondents have initiated recovery upon the anomaly occurred at the instance of the respondent authority and there is no fraud and/or misappropriation on the part of the petitioners herein. 12.3 In absence of any particular period of time prescribed for recovering the excess amount, the same would be governed by the principles of reasonable period for categorization of time to recover the excess amount paid to the employee. 12.4 The impugned order dated 16.7.2011 of reversion of the pay-scale of the petitioners herein from Rs. 4000- Rs. 6000 to Rs. 4500- Rs. 7000 in accordance with the G. R. dated 14.08.1998 issued by the State of Gujarat through Finance Department and ordering recovery of the pay-scale extended to the petitioners herein from 1.1.1996 without following the cardinal principles of natural justice. 4000- Rs. 6000 to Rs. 4500- Rs. 7000 in accordance with the G. R. dated 14.08.1998 issued by the State of Gujarat through Finance Department and ordering recovery of the pay-scale extended to the petitioners herein from 1.1.1996 without following the cardinal principles of natural justice. 12.5 Though undertaking dated 21.7.2001 was given by the petitioners herein, as referred above, the impugned order dated 28.9.2011 has affected the petitioners herein adversely whereby the recovery is effected from the salary of the petitioners. Even though the petitioners have filed the aforesaid undertaking, the principles of natural justice were required to be followed and the same have been given a go-by by the respondent authority. 12.6 The contention of Mr. Munshaw, the learned advocate appearing for the respondent authority that the petitioners herein are in service and having given the undertaking, as referred above, the petitioners are required to abide by the same. In the opinion of this Court, the aforesaid action initiated by the respondent authority was required to be undertaken upon intimation to the petitioners herein and in accordance with the principles of natural justice. 13. For the foregoing reasons, exercising extraordinary jurisdiction under Article 226 of the Constitution of India the impugned order dated 28.9.2011 is hereby quashed and set aside to the extent of ordering recovery of excess payment made to the petitioners herein on account of cancellation of higher pay-scale of Rs.5000-8000 (revised at Rs.4500-7000). All the petitions are allowed to the aforesaid extent.