JUDGMENT : Nirzar S. Desai, J. 1. Heard learned advocate Ms. Dhruvi Desai for learned advocate Ms. Harshal N. Pandya appearing for the petitioner and learned Assistant Government Pleader Mr. Sanjay Udhwani appearing for the respondent – State Government. 2. With the consent of learned advocates appearing for the respective parties, the matter was taken up for final hearing. Hence, issue RULE. Learned Assistant Government Pleader Mr. Sanjay Udhwani waives service of rule on behalf of respondent - State Government. 3. By way of this petition, the petitioner has prayed for quashing and setting aside the order dated 15.3.2022 and 25.3.2022 whereby a recovery of Rs.1,36,544/- was ordered against the present petitioner as he could not clear the departmental examination within prescribed three attempts and he was put back to the original pay scale of Rs.5200-20200, Grade pay 1900. 4. The petitioner has also prayed for refund of the amount of Rs.1,36,544/- with interest and to consider the case of the petitioner for higher pay scale from the date of examination i.e.20.12.2018 and not from 30.5.2019 i.e. date of result of the examination. 5. The facts of the petition as stated by learned advocate Ms. Dhruvi Desai are stated as under:- 6. The present petitioner joined the services under the respondent as a Clerk after due selection process in the year 2000 in the pay scale of 3050-4590. He has also cleared the departmental examination for being confirmed as Junior Clerk and CCC examination. The requirement for being promoted as Senior Clerk was to clear a departmental examination, in which petitioner appeared between 1.5.2006 and 4.5.2006 which was conducted by the Gujarat State Subordinate Service Selection Board but could not clear the aforesaid examination. In that examination in the papers wherein the petitioner could secure more than 60% made him eligible to claim exemption in those subjects. However, thereafter for quite long, the examination was not conducted by the authorities till 2016 and the petitioner had to remain in the same pay scale for almost 15 years and therefore, he preferred a Special Civil Application No.5262 of 2015 before this Court which was allowed by order dated 6.8.2015 whereby the Government was directed to consider the case of the petitioners for promotion to the post of Senior Clerk or higher pay scale subject to passing of departmental examination. 7. 7. The respondent acted upon the order dated 6.8.2015 passed by this Court in Special Civil Application No.5262 of 2015 and granted benefit of higher pay scale to the petitioner on 26.10.2015 by placing the petitioner in the pay scale of Rs.5200-20200, 2400/- from his due date i.e. 27.12.2012. 8. Ultimately, the departmental examination was held after ten years between 18.7.2016 to 22.7.2016. However, the petitioner could not clear the examination in the year 2016, 2017 i.e. within the three attempts (including an attempt made in the year 2006) within which the petitioner was to clear the departmental examination to claim the higher pay scale. 9. As the petitioner could not clear the examination in three attempts, vide order dated 21.7.2018, the petitioner was placed in the original pay scale of Rs.5200-20200, Rs.1900/- grade pay with effect from 15.1.2013. However, thereafter the petitioner cleared the examination in the 4th attempt on 30.5.2019. 10. The petitioner was about to retire on 31.3.2022 and therefore, while preparing his pension papers, some correspondence between petitioner and respondent took place. Ultimately, vide order dated 25.3.2022, a recovery of Rs.1,36,544/- was imposed upon the petitioner which according to learned advocate Ms. Dhruvi Desai, the petitioner has already paid and therefore, by way of this petition, the petitioner has prayed for refund of the aforesaid amount along with other prayers which are already incorporated in the foregoing paragraphs. 11. Ultimately, the petitioner superannuated on 31.3.2022 and thereafter, has preferred this petition with the prayers which are already stated in the foregoing paragraphs. 12. Learned advocate Ms. Dhruvi Desai appearing for the petitioner made following submissions :- 12.1 It is true that the petitioner could not clear the examination in the prescribed number of attempts i.e. three and could succeed in clearing the departmental examination only while appearing in the fourth attempt. The Government’s policy for higher pay scale which is framed vide Government Resolution dated 2.7.2007 specifically provides that any higher pay scale granted once, if withdrawn subsequently in that case also, the benefits availed by the employee cannot be permitted to be recovered. Learned advocate Ms. The Government’s policy for higher pay scale which is framed vide Government Resolution dated 2.7.2007 specifically provides that any higher pay scale granted once, if withdrawn subsequently in that case also, the benefits availed by the employee cannot be permitted to be recovered. Learned advocate Ms. Dhruvi Desai appearing for the petitioner submitted that not just that GR but subsequent GR dated 14.9.2007 also and more particularly, Clause No.3 of the said GR also provides that a person can be put back to the original/lower pay scale in case if he is not in a position to pass the examination within prescribed number of attempts i.e. three but the period during which he has continued to draw higher pay scale is impermissible to be recovered as per clause 3 of the GR dated 14.9.2007. 12.2 Learned advocate Ms. Dhruvi Desai, then submitted that though the examination was taken in the month of December, 2018, the result was declared after five months and therefore, as the petitioner had appeared in the examination in December, 2018, the date of examination was required to be considered for extending the benefits of higher pay scale to the petitioner and not the date of result. The only submission made by learned advocate Ms. Druvi Desai in support of the aforesaid contentions was that after appearing in the examination, the delay occurred in publishing the result can be attributable to the agency taking up the examination and not to the petitioner and therefore that period must be considered to grant the benefit of higher pay scale as the petitioner ultimately succeeded in clearing the examination. 12.3 As far as the aspect of recovery and refund of the amount of recovery is concerned, learned advocate Ms. 12.3 As far as the aspect of recovery and refund of the amount of recovery is concerned, learned advocate Ms. Dhruvi Desai relied upon the decision of the Hon’ble Supreme Court in case of ‘State of Panjab and others Versus Rafiq Masih (Whiter Washer) and others’, reported in (2015) 4 SCC 334 and a decision of this Court in case of ‘Ravjibhai Gagjibhai Balondra Versus State of Gujarat’ dated 31.1.2022 in Special Civil Application No. 4841 of 2019 and submitted that in view of decision in case of Rafiq Masih (Supra) as per the guidelines issued in that judgment as the petitioner is a Class III employee and the recovery is imposed within a period of one year from his date of retirement, the same is contrary to the decision of the Hon’ble Supreme Court and therefore, recovery is bad in law and the order of recovery is required to be quashed and set aside and respondent may be directed to refund the amount of recovery along with interest. 12.4 By relying upon the decision in case of ‘Ravjibhai Gagjibhai Balondra (Supra)’, it was stated by learned advocate Ms. Dhruvi Desai that the aforesaid judgment is squarely applicable to the facts of the present petition and rather the petitioner is in better footing because in a similar set of facts, when the petitioner of that petition could not clear the departmental examination within prescribed number of attempts, i.e. three, and recovery was imposed upon him, the Co-ordinate Bench considering the decision of ‘Rafiq Masih’ (Supra) ultimately quashed and set aside the order of recovery and directed the State to refund the amount of recovery with the interest of 6% per annuam. 12.5 According to learned advocate Ms. 12.5 According to learned advocate Ms. Dhruvi Desai the petitioner is in a better footing for the reason that at-least there after, in the fourth attempt, the petitioner has already cleared the examination and therefore, the recovery imposed upon the petitioner is illegal and not in consonance with the Government GR dated 2.7.2007 and subsequent GR dated 14.9.2007 as well the ratio laid down in the decision of ‘Rafiq Masih’ (Supra) and ‘Ravjibhai Gagjibhai Balondra’ (Supra), she therefore prayed for allowing the present petition by issuing appropriate directions to the respondent – State for refund of the amount along with interest as well as to consider the grant of benefit of higher pay scale from December, 2018 instead of May, 2019. 13. Learned Assistant Government Pleader Mr. Sanjay Udhwani appearing for the respondent – State Government vehemently opposed the petition and made following submissions :- 13.1 Government Resolution dated 14.9.2007 is in respect of second higher grade pay and as the GR is specifically in respect of second higher pay scale, the same shall not be applicable in the facts of the present case and the amount has rightly been recovered from the petitioner. 13.2 It was specifically pointed out by learned Assistant Government Pleader Mr. Sanjay Udhwani that the higher pay scale was granted to the petitioner on a condition to clear the departmental examination within three attempts. Admittedly, the petitioner could not clear it within three attempts and could clear only in the fourth attempt and therefore, the authority was justified in recovering the amount of benefit of higher pay scale availed by the petitioner during interregnum period. Learned Assistant Government Pleader Mr. Sanjay Udhwani relied upon a decision of the Hon’ble Supreme Court in case of ‘High Court of Punjab and Haryana and others Versus Jagdev Singh’, dated 29.7.2016 reported in (2016) 14 SCC 267 and by relying upon the aforesaid judgment submitted that in view of the fact that at the time of availing the benefit of higher pay scale, the petitioner had given an undertaking to refund the excess amount, the State is entitled to recover the amount received by the petitioner towards second higher pay scale as the petitioner could not clear the departmental examination within three attempts. 13.3 Learned Assistant Government Pleader Mr. 13.3 Learned Assistant Government Pleader Mr. Sanjay Udhwani further submitted that in view of the subsequent judgment in the case of ‘Jagdev Singh’ (Supra) the reliance placed by petitioner on judgment of ‘Rafiq Masih’ (Supra) would become insignificant as ‘Rafiq Masih’ (Supra) is considered in the decision of ‘Jagdev Singh’ (Supra) and after considering ‘Rafiq Masih’ (Supra), the Hon’ble Supreme Court has permitted the recovery in certain cases. The case of the present petitioner falls within the permissible cases for which the recovery can be made in view of the undertaking filed by the petitioner and therefore, the petition is required to be dismissed. 13.4 Learned Assistant Government Pleader Mr. Sanjay Udhwani further submitted that there is no logic behind insisting and praying for considering the higher pay scale from the date of examination and not from the date of result. Simply for the reason that a person would become eligible for higher pay scale upon successfully passing the examination and not by appearing in the examination and therefore, the date of result of the examination would be valid and not the date on which the examination was taken. By making above submission, learned Assistant Government Pleader Mr. Sanjay Udhwani prayed for dismissal of the petition. 13.5 Learned Assistant Government Pleader Mr. Sanjay Udhwani then tried to distinguished the decision relied upon by learned advocate Ms. Dhruvi Desai in the case of ‘Ravjibhai Gagjibhai Balondra’ (Supra) by stating that the facts of the aforesaid case were absolutely different where the departmental examination was not held since long and that was one of the ground which had weighed with the Court. Further, the order of recovery was passed after about 25 years, after the benefit was extended to the petitioner of that petition and therefore, considering this material difference in the facts, the judgment in case of ‘Ravjibhai Gagjibhai Balondra’ (Supra) is not applicable in the facts of the case. By making above submissions, learned Assistant Government Pleader Mr. Sanjay Udhwani prayed for dismissal of the petition. 14. I have heard learned advocates appearing for the respective parties and perused the record. Upon perusal of record, I found that certain facts are absolutely undisputed. The first fact is that the petitioner to become entitled to get the benefit of second higher pay scale was required to clear the departmental examination within three attempts. 14. I have heard learned advocates appearing for the respective parties and perused the record. Upon perusal of record, I found that certain facts are absolutely undisputed. The first fact is that the petitioner to become entitled to get the benefit of second higher pay scale was required to clear the departmental examination within three attempts. The petitioner for the first time appeared in the departmental examination in the year 2006, but he could not clear the same. Thereafter, for quite a sometime, as the departmental examinations were not held, the petitioner approached this Court by way of filing Special Civil Application No.5262 of 2015, which was allowed vide order dated 6.8.2015, wherein, in paragraph No.17 following observations were made by the Court :- “17. In such circumstances referred to above, I am of the view that the respondents shall consider the case of the petitioners for promotion to the post of the senior clerk on the condition of passing of the departmental examination if they are fulfilling other eligibility criteria for being promoted to the post of the senior clerk. If the State Government is of the view that it is not possible to promote the petitioners to the post of the senior clerk without clearing the departmental examination, then the Government shall consider grant of the higher grade scale to the petitioners subject to passing of the departmental examination.” 15. Ultimately, the petition was allowed and State was directed to hold the examination, so as to enable the petitioners for getting their case considered for promotion to the next post. 16. Pursuant to aforesaid order dated 6.8.2015, the petitioner was granted higher pay scale with effect from 27.12.2012, but, then the petitioner could not succeed in clearing the departmental examination held in the years 2016 and 2017 and ultimately, he cleared the departmental examination in the year 2018. However, as the petitioner was required to clear the departmental examination within three attempts so as to get the benefit of higher pay scale. However, the petitioner could clear the departmental examination in the fourth attempt. The respondent first passed an order, as can be seen from the material on record, on 21.7.2018, whereby, the petitioner was ordered to put back to the original pay scale of Rs.5200-20200, Grade pay of Rs.1900/- with retrospective effect, i.e. from 15.1.2013. However, the petitioner could clear the departmental examination in the fourth attempt. The respondent first passed an order, as can be seen from the material on record, on 21.7.2018, whereby, the petitioner was ordered to put back to the original pay scale of Rs.5200-20200, Grade pay of Rs.1900/- with retrospective effect, i.e. from 15.1.2013. However, what is significant and required to be noted is the fact that in that order, it is specifically stated that in view of Government Resolution dated 30.9.2015 and more particularly, as per instruction No.3 of the said GR, the period during which the petitioner continued to avail benefits of higher pay scale shall not be recovered. This order was passed on 21.7.2018 and petitioner did not challenge the same. 17. After four years i.e. just before the petitioner was due to retire in the month of March, 2022, i.e. on 31.3.2022, the respondent passed the orders dated 15.3.2022 and 25.3.2022 and though the order dated 21.7.2018 was referred to in the order dated 25.3.2022, without there being any justification, the respondents took a contrary stand and passed the order of recover of Rs. 1,36,544/- towards the benefit of higher pay scale availed by the petitioner between 27.12.2012 to 20.7.2018, which according to the respondent, the petitioner was not entitled to have and the same was wrongly paid to the petitioner. 18. On perusal of record, I found that the aforesaid order runs completely contrary to the order dated 21.7.2018 order and more particularly, for the reason that both the orders were passed by Joint Industries Commissioner (Establishment). Once a decision was taken not to recover any amount from the petitioner in view of instruction No.3 of Government GR dated 30.9.2015, the respondents ought not to have ordered the recovery without there being any basis for the recovery. More particularly, when the source to enable the respondents to recover the amount is missing and not stated in the subsequent order dated 25.3.2022. Therefore, it was not open to the respondents to pass the order first and thereafter to justify the action of recovery by filing affidavits. More particularly, when the source to enable the respondents to recover the amount is missing and not stated in the subsequent order dated 25.3.2022. Therefore, it was not open to the respondents to pass the order first and thereafter to justify the action of recovery by filing affidavits. Had the respondents wanted to recover the aforesaid amount, then, in the order dated 25.3.2022, the respondents could have clarified that under what circumstances, the order dated 21.7.2018 was passed and what mistake was committed in that order, whereby, the respondents had taken a stand of not recovering any amount from the petitioner and under which provision they are now entitled to recover the same from the petitioner. Order dated 25.3.2022, which is impugned in this petition, is absolutely silent about the same. It neither shows any basis for recovery nor the provision, under which the respondent is competent to recover the amount of Rs.1,36,544/-. 19. On further perusal of the aforesaid order dated 25.3.2023, this Court found that in the order dated 25.3.2022, there is a reference of order dated 15.3.2022 which is also impugned in this petition. On perusal of the order dated 15.3.2022, this Court finds that the said order was passed in consultation with the Finance Department whereby it was decided to recover the benefits granted to the petitioner of higher pay scale between 27.12.2012 to 30.5.2019. However, along with the annexures to the reply filed by the respondents, I could not find any of the communication between Finance Department and the Joint Industries Commissioner, whereby, the Finance Department has directed them to recover the aforesaid amount and any basis for such recovery. 20. Apart from that I have also considered the decisions cited by learned advocate Ms. Dhruvi Desai appearing for the petitioner that in case of ‘Rafiq Masih’ (Supra) as well as ‘Ravjibhai Gagjibhai Balondra’ (Supra). In case of ‘Rafiq Masih’ (Supra), the Hon’ble Supreme Court has categorically observed in paragraph No.18 as under :- “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. In case of ‘Rafiq Masih’ (Supra), the Hon’ble Supreme Court has categorically observed in paragraph No.18 as under :- “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 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.” 21. The observations made by the Hon’ble Supreme Court in paragraph No.18 indicates what has been considered by the Hon’ble Supreme Court, apart from other aspects, is the aspect of hardship as well. It is an undisputed fact that the petitioner is also a person, who had been superannuated as Class III employee and just within a period of one month before his retirement, recovery was imposed so the petitioner’s case falls within (i) and (ii) of the Principles laid down in the case of ‘Rafiq Masih’ (Supra) and therefore, the said judgment would squarely apply in the facts of the present case. 22. As far as other decision relied upon by learned advocate Ms. Dhruvi Desai is concerned in the case of ‘Ravjibhai Gagjibhai Balondra’ (Supra), is concerned, this Court finds that the facts are almost similar, wherein also the petitioner could not clear the departmental examination within three attempts and therefore, a recovery of a sum of Rs. 22. As far as other decision relied upon by learned advocate Ms. Dhruvi Desai is concerned in the case of ‘Ravjibhai Gagjibhai Balondra’ (Supra), is concerned, this Court finds that the facts are almost similar, wherein also the petitioner could not clear the departmental examination within three attempts and therefore, a recovery of a sum of Rs. 77,611/- was imposed upon the petitioner and the same was the subject matter of challenge before this Court. Ultimately, the Co-ordinate Bench of this Court by considering the decision in the case of ‘Rafiq Masih’ (Supra) quashed and set aside the order of recovery and ordered refund of the recovered amount, along with 6% interest, from the date on which the same was recovered, till actual date of payment. 23. As far as the decision relied upon by learned Assistant Government Pleader Mr. Sanjay Udhwani is concerned in case of ‘Jagdev Singh’ (Supra), the same shall not apply to the facts of the present case for the simple reason that the decision in the case of ‘Jagdev Singh’ (Supra) is in respect of a Civil Judge (Junior Division), whereas, the present petitioner is a Class-III employee and therefore, though some exceptions are carved out from the decision of ‘Rafiq Masih’ (Supra) in the subsequent decision of ‘Jagdev Singh’ (Supra), looking to the facts of the present case, the decision of ‘Jagdev Singh’ (Supra) will not be applicable in the facts of the present case as the petitioner is a Class-III employee and the recovery was imposed just before a month of his date of actual retirement. 24. As far as the petitioner’s case for granting benefit of higher pay scale from the date of examination and not from the date of result is concerned, the said submission cannot be accepted and the same is required to be rejected out-rightly, for the simple reason that it is the result of an examination, which qualifies a person to get some benefits and not the appearance in an examination and therefore, what is important is the outcome of the appearance in the examination and not merely appearing in the examination and therefore, the benefits of higher pay scale were rightly given to the petitioner from the date of result, i.e in the year 2019, and not from the date of examination i.e. December, 2018. 25. 25. Accordingly, in view of above discussion, as far as the aspect of recovery is concerned, I have no hesitation in holding that the order dated 15.3.2022 and 25.3.2022 imposing recovery the petitioner of an amount of Rs. 1,36,544/- is contrary to the provisions of law and bad as per law and therefore, the same is required to be quashed and set aside. The respondents are directed to refund the aforesaid amount within a period of Eight weeks from today and in event of failure to refund the aforesaid amount within aforesaid period from the date of order, the petitioner would be entitled to get interest at the rate of 6% on the aforesaid amount from the actual date of recovery till the same is paid to the petitioner. 26. With the aforesaid directions, this petition is partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.