JUDGMENT : 1. This petition are filed by the petitioners under Articles 14, 16, 21 and 226 of the Constitution of India for the following reliefs:- “(A) Your Lordships may be pleased to issue a writ of certiorari to quash and set aide the impugned order dated 19.04.2010 passed by the respondent no.2. (B) Your Lordships may be pleased to declare that the petitioners are rightfully entitled to the pay-scale of Rs.950-1500; Rs.3050-4590 and subsequent pay revision of Rs.5200-20200. (C) Your Lordships may be pleased to permanently restrain the respondents from issuing any recovery order and recovering the same from the petitioners pursuant to the impugned order dated 19.04.2010. (D) Your Lordships may be pleased to issue a writ of mandamus commanding the respondents herein to re-fix the pay of the petitioners in the pay-scale of Rs.950-1500 instead of Rs.750-940 and in the pay-scale of Rs.3050 – 4590 instead of Rs.2550-3200. (E) Your Lordships may be pleased to issue a writ of mandamus commanding the respondents to re-fix the pay of the petitioners as per the 6th Central Pay Commission in the pay band of Rs.5200-20200 instead of Rs.4440-7440 and to pay the arrears from 01.01.2006. (EA) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the Pension/Gratuity Payment Order issued by the respondent no. 4 on 10.7.2015 as bad in law and illegal to the extent that it permits recovery of Rs.25,094 from the gratuity payable to the petitioner no.2. (EB) Your Lordships may be pleased to issue a writ of mandamus commanding the respondent authorities to refund the amount of Rs.25,094 to the petitioner with interest at the rate of 12% per annum. (F) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the operation and implementation of the impugned order dated 19.04.2010 issued by the respondent no.2. (G) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to restrain the respondents from taking any coercive action against the petitioners. (H) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to direct the respondents to fix the petitioners in the pay band of Rs.5200-20200 instead of Rs.4440-7440 as per the Government Resolution dated 24.08.2009. (H) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to direct the respondents to fix the petitioners in the pay band of Rs.5200-20200 instead of Rs.4440-7440 as per the Government Resolution dated 24.08.2009. (I) Any other and further orders being fit and proper in the interest of justice.” 2. The facts are that the petitioners no.1 to 5 were appointed as daily wagers/helpers in respondent no.5 from 21.01.1981 to 07.12.1983 and by virtue of Government Resolution dated 17.10.1988, the petitioners have been permanent employees after about ten years. Thereafter, from time to time the petitioners have been considered for the higher pay scale and they have been granted and extended the benefits under the Fifth and Sixth Pay Commissions by virtue of the Government Resolution dated 24.08.2009 and vide order dated 19.09.2010, the petitioners no.1 to 5 granted pay band of Rs.4440 - 7440 with grade pay of Rs.1300. The petitioner received individual re- fixation orders on 19.04.2010 issued by respondent No.2, which order/s suggests that the petitioners are unqualified helper and therefore they are not entitled to pay-scale of Rs.3050-4590. The petitioners were re-fixed in the pay-scale of Rs.750-940 and corresponding higher pay-scale of Rs.2550-3200. The order mentioned that the Account Office vide its communication dated 10.11.2009 inter alia stating that the petitioners have been wrongly fixed in their existing pay-scale. Further it is stated that the office of Director of Pension and Provident Fund is sending the pension paper of the petitioners back with objections. The order dated 19.04.2010 issued by respondent No.2 to the petitioners individually has been passed without issuing a show- cause notice or giving them a personal hearing. Though the petitioners are entitled for the benefits as per the Government Resolution dated 24.08.2009, the petitioners no.1 to 5 are entitled for the arrears of pay with effect from 01.01.2006 till their pay fixation. The petitioner No.2 retired from the service on 31.05.2015 and while fixing his pension, the Accounts Officer, Directorate of Pension and Provident Fund recovered Rs.25,094/- from the gratuity amount payable to him and instead of pay the admissible full gratuity of Rs.1,72,363/- only Rs.1,47,269/- was paid to petitioner No.2. That this Hon’ble Court vide order dated 13.09.2012 had directed the respondent – authorities not to recover any amount from the petitioners pending final disposal of the petition. That this Hon’ble Court vide order dated 13.09.2012 had directed the respondent – authorities not to recover any amount from the petitioners pending final disposal of the petition. However, respondent No.4 has committed breach and defiance of the directions issued by this Court, affected recovery of Rs.25094/- from the gratuity amount payable to petitioner No.2. Before effecting such recovery, no notice or hearing was afforded to petitioner No.2 and even respondent – authorities have not even passed any order calculating the amount which is to be recovered from petitioner No.2. It is a settled principle of law that recovery cannot be made from the gratuity amount payable to an employee. The respondent No.4 has not relied on any provision of law for effecting such recovery from the gratuity of petitioner No.2. Further, respondent No.4 ought to have sought permission of this Hon’ble Court before recovery of the amount from retirement benefit due to petitioner No.2 more particularly when this Hon’ble Court has issued specific directions to the authorities for not making further recovery. The petitioners worked for more than ten years and their services came to be confirmed and they are entitled to get the higher pay scale. On completion of 15 years of continuous service, as per the Government Resolution dated 17.10.1988 more particularly clause (3), the petitioners have been considered as regular employees and their pay was fixed in the pay scale of Rs.950 to Rs.1400. That as the petitioners have completed 15 years of services, they are entitled to get the benefits as per the order dated 27.04.1998. The petitioners have preferred the present petitions challenging the action on the part of the respondent - authority for non-consideration of pay fixation and also for recovery of excess amount. 3. That as the petitioners have completed 15 years of services, they are entitled to get the benefits as per the order dated 27.04.1998. The petitioners have preferred the present petitions challenging the action on the part of the respondent - authority for non-consideration of pay fixation and also for recovery of excess amount. 3. The controversy involved in the petitions is that the initial appointment of the petitioners along with others is daily wage helpers and they worked from 1981-1983 to 1991-1993 and, therefore, after completion of ten years, they were considered as permanent employees instead of daily-wage helpers and initially petitioners have given running pay scale of Rs.950-1500 and w.e.f 01.01.1996 as per 5th Pay Commission, the pay scale of Rs.2550-3200 and thereafter the respective petitioners have been given pay scale of Rs.3050-4590 to respective petitioners by the order dated 29.04.2000 w.e.f. 01.01.1997 to petitioner No.1, by order dated 27.07.2000 w.e.f. 23.10.1997 to petitioner No.2, by order dated 24.09.2000 w.e.f. 06.12.1997 to petitioner No.3, by order dated 29.04.2000 w.e.f. 01.04.2000 to petitioner No.4 and by order dated 24.09.2000 w.e.f. 01.09.1997 to petitioner No.5. As per 6th Pay Commission, the petitioners were entitled for Rs.5200-20200 which was corresponding pay scale of Rs.3050-4590, however, order dated 19.04.2010 the petitioners were fixed the pay scale of Rs.4440 to Rs.7440. On confirmation, the petitioners drew the wages as per the fixation in the pay scale of Rs.950 – Rs.1500, but after completion of 15 years, their pay fixation is based on the Government Resolution dated 17.10.1988 and the Government extended the benefits in favour of the petitioners. 4. Heard Mr.Shalin Mehta, learned senior counsel for the petitioners, Ms.Dharitri Pancholi, learned Assistant Government Pleader for respondent – State Authorities and Mr.Alkesh Shah, learned counsel for respective respondents at length. 5. Mr.Mehta, learned senior counsel for the petitioners has submitted that petitioners No.1 to 5 were appointed as daily-wage helpers in the office of respondent No.5 and their salary is fixed in the pay scale of Rs.750-940 and, thereafter, as per the Government Resolution dated 24.08.2009 issued by the Government the corresponding higher pay band of Rs.3050-4590 is Rs.5200-20200 with grad pay of Rs.1900 and the petitioners are entitled to be fixed in the pay band of Rs.5200-20200 with grad pay of Rs.1900 instead of Rs.4440-7414 with grad pay of Rs.1300. According to Mr.Mehta, learned senior counsel, as per the Government Resolution dated 24.08.2009 and office order dated 19.04.2010 passed by respondent No.2 is barred by law of limitation and the petitioners were fixed in the pay scale of Rs.950-1500 after the Government Resolution dated 17.10.1988 was implemented and consequent the higher pay scale of Rs.3050-4590 from year 1997 and the respondent No.2 has attempted to refix their pay scale after passing of more than twenty years. He has submitted that as per the Government Resolution dated 24.08.2009 issued by the Government the corresponding higher pay band of Rs.3050-4590 is Rs.5200- 20200 with grad pay of Rs.1900 and the petitioners are entitled to be fixed in the pay band of Rs.5200-20200 with grad pay of Rs.1900 instead of Rs.4440-7414 with grad pay of Rs.1300. He has submitted that thus, the action on the part of the respondent authorities is illegal, bad in law and violative of Articles 14, 16 and 21 of the Constitution of India. He has submitted that the impugned order dated 19.04.2010 revising the pay of the petitioners in the pay scale of Rs.750 – Rs.940 from Rs.950 – Rs.1400 and in the pay scale of Rs.2550 – Rs.3200 from Rs.3050 to Rs.4590 were passed without giving any notice and/or affording an opportunity of hearing to the petitioners No.1 to 5. Mr.Mehta, learned senior counsel has submitted that the other daily wagers have been given the arrears of pay as per Sixth Pay Commission vide Government Resolution dated 24.08.2009, which amounts to discriminatory treatment between the petitioners and other similarly situated employees working in other respective divisions. He has submitted that considering the aforesaid facts, the present petition deserves to be allowed and the impugned orders require to be quash and set aside. In support of his submissions, Mr.Mehta, learned senior counsel has relied upon the decision of the Hon’ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 334 wherein the Hon’ble Supreme Court has considered that the amount paid in excess without fault of the recipient cannot be recovered. He has submitted that the recovery is effected after twelve years which is not tenable in the eyes of law. The para - 12 of the said decision reads as under:- “12. He has submitted that the recovery is effected after twelve years which is not tenable in the eyes of law. The para - 12 of the said decision reads as under:- “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.” 5.1 Mr.Mehta, learned senior counsel has submitted that in view of the aforesaid decision, there is no basis in law for the respondent authorities to recover any amount alleged to have been paid in excess to petitioner No.2 for no fault on his part. The case of petitioner No.2 is squarely covered by the above decision and he falls under the categories (i), (ii) and (iii). He has also submitted that the Hon’ble Supreme Court has laid down that no recovery from employees shall be made, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. Therefore, in any case, respondent No.4 should not have recovered the alleged excess amount by deducting certain sum of money from the gratuity amount payable to petitioner No.2 without affording him any notice or hearing. Therefore, in any case, respondent No.4 should not have recovered the alleged excess amount by deducting certain sum of money from the gratuity amount payable to petitioner No.2 without affording him any notice or hearing. Mr.Mehta, learned senior counsel has submitted that the issue involved in the present petition is squarely covered by the judgment of this Court passed in Special Civil Application No.18168 of 2013 with Special Civil Application No.491 of 2014 dated 08.02.2024. He has submitted that even while issuing the office order dated 19.04.2010, respondent No.2 has not issued any show-cause notice or afforded any hearing to the petitioners and, in light of the said proposition of law, the impugned order dated 10.07.2015 recovering Rs.25,094/- from petitioner No.2’s requires to be quashed and set aside. 6. Mr.Shah, learned counsel appearing for respondents has opposed the present petition and submitted that the petitioners No.2 to 4 were appointed as temporary helpers. Mr.Shah, learned counsel has relied upon the affidavit-in-reply filed by one Mrs. Radhamani, Chief Manager (HR). The relevant paragraphs of the said reply reads as under:- “With regard to para 7 of the petition I say that so far as the details about various orders passed in respect of petitioners are concerned, those being matter of record the same is not much disputed. However, I say that the Petitioner state that their pay scale was fixed on completion of 15 years of continuous service. In this regard, I say that by way of aforesaid orders, the petitioners were put in the pay scale of Rs.950-1400. I say that the aforesaid pay fixation was erroneously done at that point of time none of petitioners have passed S.S.C. examination. In fact as per subsequent Government Resolution dated 17/05/1989 it was decided that if a person possesses a valid certificate of second class wireman from the licensing board of industries, mines of electricity department or any equivalent certificate to that, they can be said to be qualified labors / helpers and they will be entitled to the pay scale of Rs.950-1400 and all other persons who do not possesses such qualification should be put into the pay scale of Rs.750-940. It is pertinent to note that none of the petitioners possesses such certificate as stated in the Government Resolution but inspite of that by fixing their pay scale erroneously, they were put under the pay scale of Rs.950-1400 instead of Rs.750-940. 12. With regard to para 8 to 10 of the petition I say that whatever is stated in para 8 to 10 is a matter of record and hence not much disputed, however, I say that the error committed while fixing the petitioners pay scale and placing them in the pay scale of Rs.950 – 1400 instead of R.750 – 940 continued and therefore the petitioners continued to get erroneous higher pay scale every time their pay scale got revised scale to scale and that is how the petitioners continued to get higher pay scale to which they are not entitled too. I say that the aforesaid error was noticed only when a sub division office of Vadodara submitted the service book of the petitioners for pay fixation and at that point of time the said fact was noticed. Therefore, accordingly in the year 2010 vide office order no. 62 of 2010, 64 of 2010 and 65 of 2010 the petitioners were placed under revised pay scale. 13. With regard to para 11 and 12 of the petition I say that whatever is stated in para 11 and 12 is denied and disputed in toto and petitioners are put to strict proof in support of what is stated in para 11 and 12. I say that the petitioners have claimed that though they have been granted the benefit of 6th pay commission they have not been paid the amount of arrears in five equal installments to be credited into their G.P.F. account with a lock in period of 5 years. In this regard, I may say that right from the first order the petitioners have been paid in excess then the pay scale they were entitled to. The difference of that amount is a huge amount to be calculated. The petitioners are entitled to the arrears by considering their pay scale of Rs.750 – 940 and its corresponding pay scale and not as per 950 – 1500 pay scale, therefore, if the arrears is calculated by considering the petitioner pay scale of Rs.750 – 940 and its corresponding pay scale, that amount the petitioners are entitled too. The petitioners are entitled to the arrears by considering their pay scale of Rs.750 – 940 and its corresponding pay scale and not as per 950 – 1500 pay scale, therefore, if the arrears is calculated by considering the petitioner pay scale of Rs.750 – 940 and its corresponding pay scale, that amount the petitioners are entitled too. But as against that the petitioners were given higher pay scale for many years due to their erroneous pay fixation and therefore the amount of the arrears that the petitioners are entitled too is required to be adjusted against the excess payments made to the petitioners and after adjusting the aforesaid amount which ever amount still remained to have been paid to the petitioners in excess of their entitlement the same is required to be recovered from the petitioners. It is under these circumstances that the petitioners no.2 & 3 re nto paid the amount of arrears till now. Had the amount of arrears to which the petitioners are claiming their entitlement been paid to the petitioners, it would have resulted into perpetuity of illegality/mistake already committed and therefore the amount of arrears is not paid to the petitioners. With regard to para 13 of the petition I say that whatever is stated in para 13 is denied and disputed in toto and petitioners are put to strict proof in support of what is stated in para 13. I say that the petitioners have relied upon the pay verification orders dated 30/08/2013, 05/08/2013 and 07/08/2013, in this respect I say that the aforesaid pay verification was done vide order dated 09/11/2009. Thereafter, the same was sent for a cross examining it to the Local Fund. The Manager (Salaries) raised an objection in respect of as many as 7 employees including present petitioners and send it to the Dy. Executive Engineer N.P.C. Mechanical Division No.1 vide its letter dated 24/11/2009. Accordingly, the service books of each of the petitioners were verified and on verifying the same a note was put in the service book that the pay scale which was sanctioned earlier of Rs.3050-4590 is required to be recovered. With regard to para 14 of the petition I say that whatever is stated in para 14 is denied and disputed in toto and petitioners are put to strict proof in support of what is stated in para 14 of the petition. With regard to para 14 of the petition I say that whatever is stated in para 14 is denied and disputed in toto and petitioners are put to strict proof in support of what is stated in para 14 of the petition. I say that some of the persons who were similarly situated and were given higher pay scale erroneously, in respect of those persons also recovery orders are issued and recoveries have been initiated against them. Therefore, it is not correct that only with respect to present petitioners the respondent authorities are not releasing their arrears of pay. With regard to para 15 of the petition I say that as stated herein above, since the petitioners were granted higher pay scale wrongly the amount has sought to be recovered. In fact, in this regard detail correspondence have taken place right from 2010 to 2015 dated 29.05.2015 whereby the excess amount paid to the petitioners were directed to be recovered. With regard to ground9a) of the petition, I say that as stated in forgoing paragraphs elaborately the petitioners pay fixation was done erroneously and they were given higher pay scale erroneously to which they were not entitled to. That error continued till the order was passed on 19/04/2010 vide order No. 62 of 2010, 64 of 2010 and 65 of 2010 and therefore the amount of arrears was not paid to the petitioners with a view to adjust the same against the amount excess paid to the petitioners. With regard to ground (b) of the petition I say that whatever is stated in ground (b) is denied and disputed in toto. I further say that the petitioners have concealed the fact that order No. 62 of 2010, 64 of 2010 and 65 of 2010 dated 19/04/2010 has been passed whereby the higher pay scale which was erroneously paid to the petitioners have been withdrawn and the petitioners are placed into a pay scale of Rs.2550 – 3200 to which they were entitled to and therefore with a view to adjust the amount paid in excess the amount of arrears has not been paid to the petitioners. Moreover, I say that as stated in foregoing paragraphs the petitioners were served with order no. 48 of 2015 dated 29/05/2015 and order no.64 of 2015 dated 02/07/2015 whereby the recovery was ordered. Moreover, I say that as stated in foregoing paragraphs the petitioners were served with order no. 48 of 2015 dated 29/05/2015 and order no.64 of 2015 dated 02/07/2015 whereby the recovery was ordered. The petitioners have challenged the aforesaid orders by preferring Civil Application No.12193 of 2015 which pending before this Hon’ble Court. With regard to ground (c) of the petition I say that whatever is stated in ground (c) is denied and disputed in toto. I further say that the petitioners have made a baled stated that other similarly situated persons have been given the arrears of pay as per 6th pay commission but no details of the same has been furnished. In absence of any concrete details it would not be possible for answering respondents to comment upon the same but it is respectfully submitted that even the Hon’ble Supreme court has also not approved he practice of pleading a case on the basis of reverse discrimination. It is respectfully submitted that the respondents have taken sufficient care to see that any person may not get any pay scale erroneously. But inspite of that if because of some bonafide human error some persons have been given certain benefits wrongly it would not entitled the petitioners to claim the same.” 6.1 Mr.Shah, learned counsel has submitted that considering the aforesaid aspects, the present petition being meritless deserves to be dismissed. 7. Ms.Pancholi, learned Assistant Government Pleader has objected the petitions and submitted that the respondent – authorities have not committed any error in passing the impugned orders and the Court may pass appropriate orders. 8. The controversy involved in the present petition is to the effect that the benefits which is extended to the present petitioners as per the Government Resolution dated 17.10.1988 on the pay fixation is incorrect or not and whether the recovery initiated by the respondents is valid or not. 9. Having considered the submissions made on behalf of both the sides and considering the aforesaid decision as well as materials placed on record and the impugned order of the appropriate Government, it appears that the petitioners are appointed as daily wager/helpers who have completed ten years of service prior to the date of resolution dated 17.10.1988 wherein three categories of employees were mentioned i.e. (i) unskilled, (ii) semi-skilled and (iii) skilled. That after completion of fifteen years, the petitioners are entitled to get higher pay scale which is granted to them as per clause (3) of the Government Resolution dated 17.10.1988 and since on completion of fifteen years, they have received higher pay scale. Therefore, the submissions made on behalf of the respondent is not tenable and the initial appointment order of the petitioners itself is clear that on completion of ten years their temporary services came to be confirmed for which they have drawn pay scale of Rs.750-940 but after completion of fifteen years, they are considered as permanent employees and they have extended benefits and their pay is fixed in the pay scale of Rs.950-1400 and, thereafter, they have extended the benefits under the Fifth and Sixth Pay Commission. Even till date, the petitioners have not considered that the salary which is drawn by them is in excess to the earlier order of appointment and, thereafter, suddenly after almost twelve years, the respondents stated that the amount of salary which is paid to the petitioners is on higher side since their original appointment is in the category of unskilled and they are not fallen under the Government Resolution dated 17.10.1988 and the benefits drawn by the petitioners is inadvertently paid, which is on higher side and in excess and, therefore, the respondents are entitled to recover the amount from the petitioners, which fact is absolutely illegal, arbitrary and against the settled principles of law. 10. Considering the facts and circumstances of the case, it reveals that the petitioners appointed as daily wagers/helpers and after ten years and by virtue of Government Resolution dated 17.10.1988, they have been permanent employees and vide order dated 09.11.2009, the pay of the petitioners was fixed in the pay scale of Rs.5200-20200 with grade pay of Rs.1900. Thereafter, as per Government Resolution dated 24.08.2009 and office order dated 09.11.2009, the petitioners No.1 to 5 are entitled to get arrears and despite of that fact, the respondents have not paid the said arrears to the petitioners, but the respondents have issued a letter to the effect that the payment made to the petitioners is excess and the same is required to be recovered from them. This action on the part of the respondents is unjust, illegal and arbitrary and against the settled principles of law. This action on the part of the respondents is unjust, illegal and arbitrary and against the settled principles of law. In view of the above, I am of the opinion that the present petitions deserve to be allowed. 11. In the result, the petitions are allowed. The order dated 19.04.2010 is quashed and set aside. The impugned order dated 10.07.2015 passed by respondent No.4 for recovery of the amount of Rs.25094/- from gratuity of petitioner No.2 is hereby quashed and set aside and the said amount shall be refunded to petitioner No.2. The respondents are directed to fix the salary on the basis of the pay scale of Rs.950 – 1400 from the date of completion of fifteen years of service and the petitioners are entitled to get the arrears as per the Government Resolution dated 24.08.2009 and 09.11.2009. The said amount shall be paid to the petitioners preferably within a period of four months from the date of receipt of the copy of this order and such entry for pay fixation shall be effected in their service book. Rule is made absolute to the aforesaid extend. There shall be no order as to costs.