ORDER : (Naresh Kumar Chandravanshi, J.) 1. With consent of the learned counsel for the parties, heard the matter finally at motion stage. 2. This writ petition has been preferred under Article 226 of the Constitution of India challenging the recovery order dated 24-1-2019 (Annexure P-1) issued by respondent No. 2 for recovery of excess payment Rs. 60,902/-. 3. Facts of the case in nutshell are that, petitioner was working on the post of Executive Engineer under respondent No. 2 and he retired from service on 30-11-2011. After his retirement, he has been granted 100% pension, but only 90% gratuity has been granted and 10% gratuity has been withheld without any proper reason, whereas, in the year 2016, respondent No. 1 has issued ‘No demand, No Enquiry’ certificate and respondent No. 2 has also informed respondent No. 3 (Annexure P-4) that, no inquiry or criminal case or any recovery proceeding is pending against him. The petitioner submitted representation for releasing 10% gratuity payment to him, thereafter, respondent No. 3 made some queries from respondent No. 2 vide Annexure P-5 dated 20-6-2017, with regard to payment of Kramonnat Vetanman and determination of pay fixation. Respondent No. 2 informed respondent No. 3 Vide Annexure P-6 dated 31-7-2017 that, issue with regard to recovery does not arise against petitioner, despite that, respondent 2 has issued impugned recovery order Annexure P-1, on the ground that, he was entitled to get upgraded increment with effect from 30-6-2000, but he was wrongly granted upgraded annual increment with effect from 1-1-2000. Therefore, excess payment is liable to be recovered in view of instructions issued by the State Government vide order dated 18-8-2003. Aforesaid recovery order Annexure P-1 has been challenged by the petitioner in this writ petition. 4. Learned counsel for the petitioner would submits that, impugned recovery order is arbitrary and contrary to law. As per sub-clause 3-A of Rule 66 of Chhattisgarh Civil Services (Pension) Rules, 1976 (hereinafter referred to as ‘Rules, 1976’), such recovery could have been made only within a period of six months from the date of retirement of the Government servant and after that, it could be recovered through legal procedure, as provided under sub-clause 4 of the Rule 66 of the Rules, 1976, but in instant case, recovery order has been made after about 8 years of retirement of the petitioner. There was no illegality in grant of time scale pay to the petitioner and on that count, upgraded increment date was fixed, which was duly verified by the competent authority. It is further submitted that the impugned order has been issued despite issuing ‘No Demand, No Enquiry’ certificate by the State Government, which was sent vide Annexure P-7 by the Superintending Engineer (Administration) to the Chief Engineer. It is further submitted that, the petitioner has not given any undertaking with regard to recovery of excess payment, despite that, impugned order has been issued after about 8 years of his retirement. He further submits that, respondents have stated in their reply that, Annexure R-4 is undertaking given by the petitioner for recovery of excess payment, but it was not undertaking, rather it was only communication made by him to the Chief Engineer with regard to payment of Rs. 4960/- through Chalan. The petitioner deposited aforesaid amount on oral saying by the authorities that, to get remaining amount, he has to pay Rs. 4960/-, therefore, he had paid the amount but, it cannot be termed as undertaking of the petitioner, hence he prayed that, relief, as sought for, be granted to the petitioner. 5. Respondent – State has filed its reply. Learned counsel appearing for the State, while referring to the reply, would submit that, when the petitioner was working as Assistant Engineer, vide order dated 4-8-2002, he was extended benefit of Kramonnati pay scale with effect from 30-6-1999. On the basis of certificate dated 17/3/1999-19/4/1999 issued by the State Government and on the basis of that order, Kramonnat pay scale was extended to him. His next increment date was fixed with effect from 1-1-2000 vide order dated 15-11-2002, but subsequently, the department of Finance and Planning issued Finance instructions dated 18-8-2003 with regard to determination of Kramonnat/Senior pay scale, according to which, it has been decided that, in case, the pay is fixed at minimum stage of Kramonnati pay scale and the employees gets the benefit of more than one increment than the pay scale earlier fixed, then the employee would be entitled for next increment after completion of one year of qualying services. Said provision has been made applicable with effect from 24-4-1999. Said provision has been made applicable with effect from 24-4-1999. It is further stated that, benefit of Kramonnati granted to the petitioner vide order dated 4-8-2002 (Annexure R-1) is contrary to the Finance Instruction dated 18-8-2003, therefore, when service book of the petitioner was sent to the office of respondent No. 3 for the purpose of finalizing the pensionary benefits, the objection was raised by the office of the respondent No. 3 and it was directed to refix the pay scale and make recovery of excess payment made to the petition. On this premise, the impugned recovery order has been issued. 6. It is further submitted by the State counsel that at the time of retirement, the petitioner has given undertaking to the effect that, if any excess payment is made to him, then the same would be recoverable from his retiral dues. It is further submitted that the petitioner was provided provisional pension as well as gratuity in accordance with Rule 61 of the Rules, 1976. A proceeding was pending against him before the CG Lok Ayog, which was culminated on or about 19-2-2016, thereafter certificate with respect to No Enquriy, ‘No Demand’, has been issued by competent authority vide communication dated 9-11-2016 (Annexure R-7). Aforesaid fact was well within the knowledge of petitioner, therefore, he did not approach authority for releasing the remaining pension and gratuity amount. It is further submitted that since, the petitioner had given undertaking for recovery of excess payment, if it has been paid to him, therefore, now he cannot raise objection in this regard. Learned counsel for the State relied on the decision of Hon’ble Supreme Court in the case of High Court of Punjab and Haryana and ors Vs. Jagdev Singh [ (2016) 14 SCC 267 ]. It is submitted that in view of above, the petitioner is not entitled for the relief sought for, therefore, the petition is liable to be dismissed. 7. I have heard learned counsel for the parties and perused the material available on record. 8. Undisputedly, the petitioner retired from the post of Executive Engineer of respondent No. 2 department and recovery of excess payment (Annexure P-1) has been issued on 24-1-2019 i.e. after more than 7 years of his retirement. 7. I have heard learned counsel for the parties and perused the material available on record. 8. Undisputedly, the petitioner retired from the post of Executive Engineer of respondent No. 2 department and recovery of excess payment (Annexure P-1) has been issued on 24-1-2019 i.e. after more than 7 years of his retirement. Said recovery order has been made on the premise that, in the light of Finance Instruction dated 18-8-2003, on 30-6-1999, pay of the petitioner was fixed at minimum stage of Kramonnat pay scale, thus since he got benefit of more than one increment earlier fixed, under this situation, the petitioner would be entitled for the next increment after completion of one year of qualifying service, but date of his next increment was wrongly fixed on 1-1-2000 instead of 30-6-2000. If it was so, then said excess payment ought to have been traced at earlier stage of his retirement, but it has been traced after more than 7 years of his retirement. 9. In the case of High Court of Punjab and Haryana (supra), Hon’ble Supreme Court while considering the earlier judgment, has observed as under :- “8. The order of the High Court has been challenged in these proceedings. From the record of the proceedings, it is evident that when the respondent opted for the revised pay scale, he furnished an undertaking to the effect that he would be liable to refund any excess payment made to him. In the counter-affidavit which has been filed by the respondent in these proceedings, this position has been specifically admitted [State of Punjab v. Rafiq Masih, (2015) 4 SCC 334 ]. Subsequently, when the Rules were revised and notified on 7-5-2003 it was found that a payment in excess had been made to the respondent. On 18-2-2004, the excess payment was sought to be recovered in terms of the undertaking. 9. The submission of the respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the State. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the respondent was clearly on notice of the fact that a future refixation or revision may warrant an adjustment of the excess payment, if any, made. 10. In State of Punjab v. Rafiq Masih [State of Punjab v. Rafiq Masih, (2015) 4 SCC 334 : (2015) 2 SCC (Civ) 608 : (2015) 2 SCC (L&S) 33] 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 : (SCC pp. 334-35) (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) 11. 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.” 10. 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.” 10. In the instant case, as per respondent State, at the time of retirement, the petitioner has given undertaking to the effect that if any payment in excess is paid to him, then the same would be recoverable from his retiral dues. But no such undertaking given by petitioner has been filed by the respondent/State authorities. They have stated in the reply that Annexure R-4 is the undertaking given by the petitioner, but it is not an undertaking, rather, it is a communication made by the petitioner to respondent No. 2 with regard to payment of deposit of Rs. 4960/- through challan. In this regard, while making submission, learned counsel for the petitioner submitted that, on oral saying of authorities that if he will deposit aforesaid amount, then the withheld amount of gratuity will be released to him, therefore, he had deposited said amount. It has not been stated in Annexure R-4 by the petitioner that he is ready to deposit excess payment made to him, hence only because of deposit of aforesaid amount by the petitioner, it cannot be said that Annexure R-4 is undertaking given by the petitioner for recovery of excess payment. 11. Thus, said recovery order Annexure P-1 dated 24-1-2019 has been issued after more than 7 years of retirement of the petitioner, that, too, after issuance of ‘No demand, No enquiry’ certificate by respondent no. 1 on 26-10-2016 i.e. prior to issuance of impugned recovery order. Further, respondents have not filed any undertaking given by the petitioner with regard to recovery of excess payment made to him. In such facts and circumstances of the case, recovery order Annexure P-1 is not found to be sustainable in the light of the principle enunciated in sub-paragraph (ii) and (iii) of para 10 of the judgment in the case State of Pubjab V. Rafiq Masih (supra). Since, it is not found that petitioner had given said undertaking, therefore, respondents also do not get any support in instant case from the aforesaid ruling cited by them. 12. Since, it is not found that petitioner had given said undertaking, therefore, respondents also do not get any support in instant case from the aforesaid ruling cited by them. 12. So far 18% interest sought for by the petitioner is concerned, as per communication dated 19-2-2016 Annexure R-6, a proceeding was pending against him before Lok Ayog, which was filed on 27-1-2016, thereafter, No demand, No Enquiry certificate was issued in respect of him by the State Government vide Annexure R-7. This fact seems to be in the knowledge of petitioner, therefore, earlier he did not pursue for payment of remainder of gratuity amount. Therefore, considering aforesaid facts, the petitioner is not entitled to get interest at the rate as has been prayed by him, rather, he is entitled to get 6% interest on the amount of gratuity, which has not been paid to him till date. 13. Accordingly, this petition is allowed in part. Impugned order dated 24-1-2019 (Annexure P-1) is quashed. Respondents are directed to pay the withheld amount of gratuity, i.e. 10% gratuity with interest at the rate of 6% per annum from 1-1-2017 till its actual payment, within 60 days from today, else 9% interest shall be payable on aforesaid amount till its realization. 14. In view of above, the petition is allowed to the above extent.