JUDGMENT : This writ petition has been filed on behalf of the petitioner for the following reliefs:- “(a) For issuance of appropriate writ(s)/order(s), direction)s) especially a writ in the nature of certiorari for quashing the letter no.1679 dated 17.11.2016 (Annexure-5) issued by Chief Engineer, Water Resources Department, Hazaribagh and informed to the Executive Engineer, Konar Canal Division, Dumri (with a copy to the petitioner) where under the said authority while informing that the Finance Department, Govt. of Jharkhand vide Resolution no.660 dated 28.02.2009 has fixed the PB-II grade pay of Rs.4,200 of Diploma Holders Draftsmen Category-I in Engineering with effect from 01.01.2006 and though who do not carry such qualification shall be entitled for PB-I Grade Pay of Rs.2,800 and Finance Department, Govt. of Bihar vide Resolution no.660 dated 08.02.1999 the worked out the Pay Scale of Rs.5,000-8,000/- of Diploma Holders and Pay Scale of Rs.4,000-6,000/- for those who are not Diploma Holders with effect from 01.01.1996 and thus asked him to take necessary action. (b) For issuance of a writ in the nature of certiorari for quashing of all consequential orders taken through office orders contained in letter no.914 & 915 dated 02.12.2016 (Annexure-6 Series) and letter no.940 & 941 dated 21.12.2016 (Annexure-7 Series) whereby the pay scale of the petitioner has been lowered with effect from 01.01.1996 and 01.01.2006 respectively in a most mechanical and arbitrary manner and in violation of the settled principles of law. (c) For issuance of a writ in the nature of certiorari for quashing office order contained in letter no.978 dated 30.12.2016 (Annexure-8) issued under the signature of Executive Engineer, Konar Canal Division, Dumri where under the said authority in the light of directions given by the chief engineer, water resources department, Hazaribagh in the letter no.1679 dated 17.11.2016 and decision taken with respect to the aforesaid letter through all consequential orders contained in letter no.914 & 915 dated 02.12.2016 and letter no.940 & 941 dated 21.12.2016, later confirmed by District Account officer, has passed an order to recover the total amount of Rs.6,28,557/- which has been paid in excess to the petitioner in a most arbitrary and illegal manner without considering the fact that the petitioner is at the verge of retirement i.e.31.10.2017.” And for the ancillary reliefs. 2. Heard Mr. Pankaj Kumar, learned counsel for the petitioner, Mr. Apurva Singh, learned A.C to S.C (Mines) and Mr. 2. Heard Mr. Pankaj Kumar, learned counsel for the petitioner, Mr. Apurva Singh, learned A.C to S.C (Mines) and Mr. Amit Kumar Verma, learned counsel for the respondent no.7-Accountant General. 3. It is submitted that letter dated 17.11.2016 issued by the Chief Engineer, Water Resources Department, Hazaribagh is illegal, arbitrary and not sustainable in the eye of law. It is submitted that the petitioner has been appointed on 22.11.1987 as Draftsmen Category-II and different pay scale was fixed vide Memo dated 29.03.2003 (Annexure-2) in the light of the resolution dated 25.06.2005 in the pay scale of Rs.1400-2300 and Rs.4,000-6,000 respectively. Thereafter the petitioner was granted promotion from Draftsmen Category-II to Draftsmen Category-I w.e.f 01.10.1997 in the pay scale of Rs.4,500-7,000 and which was revised to Rs.5,000-8,000 vide letter dated 23.08.2005. Then he was granted benefit of 6th Pay Revision Committee w.e.f. 01.01.2006 in the pay scale of Rs.9,300-34,800 plus Grade Pay Rs.4200 vide statement of fixation dated 19.03.2009 marked as Annexure-4. However, suddenly vide letter dated 17.11.2016 (Annexure-5) the Chief Engineer informed the Executive Engineer that the petitioner was granted PB-II Grade pay Rs.4200 wrongly as the petitioner is not having the aforesaid Diploma in Engineering and as such the petitioner will be entitled to pay scale PB-I Grade pay of Rs.2800 w.e.f. 01.01.1996. Likewise the pay scale of Rs.5,000-8,000 was reduced to Rs.4,000-6,000 as the petitioner is not having the Diploma in Engineering. Even on the same day another letter dated 02.12.2016 issued vide Annexure-6 series by which it was informed that pay scale of the petitioner is fixed as PB-I Rs.5200-20200 and Grade Pay of Rs.2800 w.e.f. 01.01.2006 which is also wrong, illegal and arbitrary. It is submitted that vide letter no.940 and 941 dated 21.12.2016 (Annexure-7) the earlier pay scale was modified by fixing more lesser which is illegal, arbitrary and illegal. It is further submitted that vide letter dated 30.12.2016 issued (vide Annexure-8) by the Executive Engineer by which the order for recovery of Rs.6,28,557 has been passed, is also arbitrary and illegal. It is submitted that vide letter dated 30.12.2016 the petitioner was directed to submit representation for recovery of said amount in instalments and the petitioner was forced to file application (Annexure-9 series) under coercion. It is submitted that vide letter dated 30.12.2016 the petitioner was directed to submit representation for recovery of said amount in instalments and the petitioner was forced to file application (Annexure-9 series) under coercion. It is submitted that the petitioner was granted the benefit of 2nd MACP after completing 20 years of service and the petitioner was receiving pay scale of Rs.9,300-34,800 and he was also entitled for the next higher pay scale of Rs.9,300-34,800 and for which he has filed representation. It is submitted that Memo No.978 dated 30.12.2016 passed by the respondent is also arbitrary and illegal. 4. Learned counsel for the petitioner has placed reliance upon the judgment reported in 2015 (1) JBCJ 318 (SC), (2009) 6 SCC 611 and also the order dated 21.12.2011 passed in W.P (S) No.1382 of 2006 by a Bench of this Court and also the judgment dated 23.08.2021 passed in L.P.A No.386 of 2020 by the Division Bench of this Court. It is submitted that there is no misrepresentation and suppression of facts on the part of the petitioner by fixation of his earlier pay scale. It is submitted that the pay fixation done 20 years and 10 years earlier in higher pay scale before superannuation of the petitioner and the same is not recoverable in the light of the judgment mentioned above and hence writ petition may be allowed. 5. On the other hand, learned counsel for the respondents has submitted that the writ petition filed on behalf of the petitioner is not maintainable. It is submitted that the petitioner has suppressed several important facts from this Court. It is submitted that petitioner has also not defined the circular/letters of the department properly. It is submitted that vide Resolution No.1281 dated 25.06.2005 in the light of Fitment Committee Recommendation, 5th Pay Revision was allowed to the employees of the State Government w.e.f. 01.01.1996 and given vide letter no.660 dated 08.02.1999 of the Finance Department in which pay scale of Draftsman Category-II is sanctioned in the pay of Rs.4,000-6,000. It is submitted that vide Resolution No.1281 dated 25.06.2005 in the light of Fitment Committee Recommendation, 5th Pay Revision was allowed to the employees of the State Government w.e.f. 01.01.1996 and given vide letter no.660 dated 08.02.1999 of the Finance Department in which pay scale of Draftsman Category-II is sanctioned in the pay of Rs.4,000-6,000. Further the petitioner was given promotion vide Memo No.3775 dated 20.12.2003 issued by Chief Engineer, Water Resources Department, Ranchi from Draftsman Category-II to Draftsman Category-I w.e.f. 01.10.1997 in the pay scale of Rs.4500-7000 who was having no qualification of Diploma but pay scale of Rs.5,000-8,000 is applicable in case of those employees having qualification of Diploma as per letter no.1381 dated 25.06.2005 issued by Finance Department and Memo no.2522 dated 23.08.2005 issued by Chief Engineer, Water Resources Department, Ranchi and the photo copy of the letter no.1381 dated 25.06.2005 issued by Finance Department and Memo no.2522 dated 23.08.2005 issued by Chief Engineer have been annexed as Annexure-A series. It is submitted that the petitioner has wrongly been given the benefit of pay scale of Rs.5,000-8000 which is contrary to the letter no.1381 dated 25.06.2005 issued by Finance Department and Memo no.2522 dated 23.08.2005 issued by Chief Engineer, Water Resources Department, Ranchi. Thus, the statement of fixation of pay for Government Servant issued by Executive Engineer, Konar Canal Division, Dumri clearly shows that his pay scale should have been Rs.4500-7000 instead of Rs.5,000-8000 and now the department has rightly decided to recover the excess pay given to petitioner vide letter no.1679 dated 17.11.2016 issued by Chief Engineer, Water Resources Department, Hazaribagh, Dumri. A clarification in this regard vide letter nos.914 and 915 dated 02.12.2016 and letter nos.940 and 941 dated 21.12.2016 respectively has been issued by the department and photo copy of the letter nos.914 and 915 dated 02.12.2016 and letter nos.940 and 941 dated 21.12.2016 issued by the Executive Engineer have been enclosed as Annexure-B series. A clarification in this regard vide letter nos.914 and 915 dated 02.12.2016 and letter nos.940 and 941 dated 21.12.2016 respectively has been issued by the department and photo copy of the letter nos.914 and 915 dated 02.12.2016 and letter nos.940 and 941 dated 21.12.2016 issued by the Executive Engineer have been enclosed as Annexure-B series. It is further submitted that the department has come to the conclusion that whatever excess payment of salary has been made to the petitioner on the point of qualification, has to be recovered from him and thus vide letter no.978 dated 30.12.2016 (i.e. Annexure-8) which was issued by the Executive Engineer, Konar Canal Division, Dumri in view of the letter no.1679 dated 17.11.2016 (i.e. Annexure-5) issued by Chief Engineer, Water Resources Department, Hazaribagh to Executive Engineer, Konar Canal Division, Dumri. It is further submitted that even the petitioner had also agreed to repay the same but requested for monthly instalments and as such he cannot raise any grievance. 6. It is further submitted that the order has been issued by Chief Engineer, Water Resources Department, Hazaribagh vide letter no.347 dated 09.03.2018. The letter of order says that the petitioner Binod Kumar Chandra was already given a promotion by Chief Engineer, Water Resources Department, Ranchi vide his letter no.3775 dated 20.12.2003 from the post of Draftsman Category-II to Draftsman Category-I. As a result of which the petitioner’s salary will be revised in scale of Rs.4500-7000 instead of Rs.4,000-6000 from dated 01.10.1997 hence only 2nd M.A.C.P of the petitioner is validated from dated 01.09.2008 in scale of PB-II Rs.9300-34800 and Grade Pay of Rs.4200. It is also submitted subsequently change may happen when his pay will further be fixed as per the letter no.347 dated 09.03.2018 of Chief Engineer, Water Resources Department, Hazaribag and hence the recovery amount may further reduce and the course of action for its corrigendum is under process and the arrears will be paid soon. Photo copy of the letter no.347 dated 09.03.2018 has been enclosed and marked as Annexure-A to the supplementary counter affidavit on behalf of the State. Photo copy of the letter no.347 dated 09.03.2018 has been enclosed and marked as Annexure-A to the supplementary counter affidavit on behalf of the State. It is submitted that the Respondent No.5 (Executive Engineer, Konar Canal Division, Dumri) had issued an office order vide letter no.978 dated 30.12.2016 to take the petitioner’s opinion whether he likes to repay the amount of Rs.6,28,557/- at once or on monthly basis and the petitioner replied Executive Engineer, Konar Canal Division, Dumri through his letter dated 30.12.2016 to recover Rs.20,000/- per month from his salary upto month of October 2017 and the rest from the future emoluments. The Executive Engineer, Konar Canal Division, Dumri issued an office order vide letter no.982 dated 31.12.2016 for the recovery as per the petitioner’s opinion. In the month of May 2017 the petitioner again requested the respondent by his letter dated 05.05.2017 to recover only Rs.5,000 per month. On petitioner’s request, the Respondent No.5 (Executive Engineer, Konar Canal Division, Dumri) reconsidered and decided to recover of Rs.10,000/- per month instead of Rs.20,000/ per month. Photo copy of the letter no.978 dated 30.12.2016 and letter no.982 dated 31.12.2016 have been marked as Annexure-B series to the supplementary counter affidavit filed by the State. It is further submitted that the letter no.978 dated 30.12.2016 for recovery of Rs.6,28,557/- from petitioner was issued under the signature of the respondent no.5 hence the writ petition may be dismissed. 7. It transpires that the petitioner was appointed on 22.11.1987 as Draftsmen Category-II and different pay scale was fixed vide Memo dated 29.03.2003 (Annexure-2) in the light of the resolution dated 25.06.2005 in the pay scale of Rs.1400-2300 and Rs.4,000-6,000 respectively. Thereafter the petitioner was granted promotion from Draftsmen Category-II to Draftsmen Category-I w.e.f. 01.10.1997 in the pay scale of Rs.4,500-7,000 and which was revised to Rs.5,000-8,000 vide letter dated 23.08.2005. Then he was granted benefit of 6th Pay Revision Committee w.e.f. 01.01.2006 in the pay scale of Rs.9,300-34,800 plus Grade Pay Rs.4200 vide statement of fixation dated 19.03.2009 marked as Annexure-4. However, suddenly vide letter dated 17.11.2016 (Annexure-5) the Chief Engineer informed the Executive Engineer that the petitioner was granted PB-II Grade pay Rs.4200 wrongly as petitioner is not having the aforesaid Diploma in Engineering and the petitioner will be entitled to pay scale PB-I Grade pay of Rs.2800 w.e.f. 01.01.1996. However, suddenly vide letter dated 17.11.2016 (Annexure-5) the Chief Engineer informed the Executive Engineer that the petitioner was granted PB-II Grade pay Rs.4200 wrongly as petitioner is not having the aforesaid Diploma in Engineering and the petitioner will be entitled to pay scale PB-I Grade pay of Rs.2800 w.e.f. 01.01.1996. Likewise the pay scale of Rs.5,000-8,000 was reduced to Rs.4,000-6,000 as the petitioner is not having the Diploma in Engineering. Even on the same day another letter dated 02.12.2016 issued vide Annexure-6 series by which it was informed that pay scale of the petitioner is fixed as PB-I Rs.5200-20200 and Grade Pay of Rs.2800 w.e.f. 01.01.2006 which is also wrong, illegal and arbitrary. Thus, it would appear that vide letter no.940 and 941 dated 21.12.2016 (Annexure-7) the earlier pay scale was modified by fixing more lesser which is illegal, arbitrary and illegal. Thereafter vide letter dated 30.12.2016 issued (vide Annexure-8) by the Executive Engineer i.e. Respondent No.5, the order for recovery of Rs.6,28,557 has been passed. 8. Having heard the learned counsels for both the sides and from perusal of the records of this case, it appears that during entire service period nothing adverse was found against this petitioner and when he was about to retire then suddenly the respondent issued letter no.1679 dated 17.11.2016 i.e. by the Chief Engineer, Water Resources Department (i.e. Respondent No.3) informing the Executive Engineer, Konar Division, Dumri (i.e. Respondent No.5) that the petitioner has wrongly been granted Grade pay of Rs.4200 (PB-II) while he was entitled to Grade pay of Rs.2800 (PB-I) and hence the pay scale of the petitioner should be Rs.4,000-6000 instead of Rs.5000-8000 which was granted vide Resolution no.660 dated 08.02.1999 issued by the Government of Bihar. Thus, it is clear that the steps for recovery for the excess payment from the salary and upcoming retiral dues of the petitioner are being taken on almost fag end of his service. 9. It further transpires that there was no misrepresentation or suppression on the part of the petitioner to get the said pay scale and it is only due to lapses on the part of the authorities of the State Government this situation has arisen. 9. It further transpires that there was no misrepresentation or suppression on the part of the petitioner to get the said pay scale and it is only due to lapses on the part of the authorities of the State Government this situation has arisen. The respondent has further contended that petitioner was given promotion vide Memo dated 20.12.2003 (Annexure-3) issued by the Chief Engineer, Water Resources Department, Ranchi from Draftsmen Category-II to Draftsmen Category-I by fixing the pay scale of Rs.5,000-8000 instead of Rs.4500-7000 as he was not having qualification of Diploma contrary to the letter no.1381 dated 25.06.2005 issued by the Finance Department and Memo no.2522 dated 23.08.2005 issued by the Chief Engineer, Water Resources Department, Ranchi. 10. In the above period also, there was neither misrepresentation nor any suppression of fact on the part of the petitioner as the service book of the petitioner was available with the authorities of the respondents at the time of granting all such scale. 11. The petitioner has agreed to pay the amount of Rs.6,28,557/-in instalments on 30.12.2016 itself, i.e. just ten months before his retirement on 31.10.2017 as contained in Annexure-9 series at page 51 of this writ application. But this Undertaking given on behalf of the portioner is completely under coercion and threat. 12. It is well settled that the employer stands on higher pedestal in comparison to an employee and the representation given by the petitioner to recover the dues amount of Rs.6,28,557/- in instalments is clearly under coercion and threat for non-fixation of pension and other retiral benefits and it is against the public policy. 13. It has been held in the case of Central Inland Water Transport Corporation Ltd. and Another versus Brojo Nath Ganguly and Another reported in AIR 1986 SC 1571 at para 85, 101 and 105 as follows:- “Para-85:-…………… So I would hold that the question to be answered as respects a contract in restraint of trade of the kind with which this appeal is concerned is: “Was the bargain fair?” The test of fairness is, no doubt, whether the restrictions are both reasonably necessary for the protection of the legitimate interests of the promisee and commensurate with the benefits secured to the promisor under the contract. For the purpose of this test all the provisions of the contract must be taken into consideration.” (emphasis supplied) Lord Diplock then proceeded to point out that there are two kinds of standard forms of contracts. The first is of contracts which contain standard clauses which “have been settled over the years by negotiation by representatives of the commercial interests involved and have been widely adopted because experience has shown that they facilitate the conduct of trade”. He then proceeded to state: “If fairness or reasonableness were relevant to their enforceability the fact that they are widely used by parties whose bargaining power is fairly matched would raise a strong presumption that their terms are fair and reasonable”. Referring to the other kind of standard form of contract Lord Diplock said: (at p. 1316) “The same presumption, however, does not apply to the other kind of standard form of contract. This is of comparatively modern origin. It is the result of the concentration of particular kinds of business in relatively few hands. The ticket cases in the 19th century provide what are probably the first examples. The terms of this kind of standard form of contract have not been the subject of negotiation between the parties to it, or approved by any organisation representing the interests of the weaker party. They have been dictated by that party whose bargaining power, either exercised alone or in conjunction with others providing similar goods or services, enables him to say: “If you want these goods or services at all, these are the only terms on which they are obtainable. Take it or leave it”. To be in a position to adopt this attitude towards a party desirous of entering into a contract to obtain goods or services provides a classic instance of superior bargaining power.” Para-101:- The Corporation is a large organization. It has offices in various parts of West Bengal, Bihar and Assam, as shown by the said Rules, and possibly in other States also. The said Rules form part of the contract of employment between the Corporation and its employees who are not workmen. These employees had no powerful workmen's Union to support them. They had no voice in the framing of the said Rules. They had no choice but to accept the said Rules as part of their contract of employment. The said Rules form part of the contract of employment between the Corporation and its employees who are not workmen. These employees had no powerful workmen's Union to support them. They had no voice in the framing of the said Rules. They had no choice but to accept the said Rules as part of their contract of employment. There is gross disparity between the Corporation and its employees, whether they be workmen or officers. The Corporation can afford to dispense with the services of an officer. It will find hundreds of others to take his place but an officer cannot afford to lose his job because if he does so, there are not hundreds of jobs waiting for him. A clause such as clause (i) of Rule 9 is against right and reason. It is wholly unconscionable. It has been entered into between parties between whom there is gross inequality of bargaining power. Rule 9(i) is a term of the contract between the Corporation and all its officers. It affects a large number of persons and it squarely falls within the principle formulated by us above. Several statutory authorities have a clause similar to Rule 9(i) in their contracts of employment. As appears from the decided cases, the West Bengal State Electricity Board and Air India International have it. Several government companies apart from the Corporation (which is the first appellant before us) must be having it. There are 970 government companies with paid-up capital of Rs 16,414.9 crores as stated in the written arguments submitted on behalf of the Union of India. The government and its agencies and instrumentalities constitute the largest employer in the country. A clause such as Rule 9(i) in a contract of employment affecting large sections of the public is harmful and injurious to the public interest for it tends to create a sense of insecurity in the minds of those to whom it applies and consequently it is against public good. Such a clause, therefore, is opposed to public policy and being opposed to public policy, it is void under Section 23 of the Indian Contract Act. Para-105:- As the Corporation is “the State” within the meaning of Article 12, it was amenable to the writ jurisdiction of the High Court under Article 226. Such a clause, therefore, is opposed to public policy and being opposed to public policy, it is void under Section 23 of the Indian Contract Act. Para-105:- As the Corporation is “the State” within the meaning of Article 12, it was amenable to the writ jurisdiction of the High Court under Article 226. It is now well established that an instrumentality or agency of the State being “the State” under Article 12 of the Constitution is subject to the constitutional limitations, and its actions are State actions and must be judged in the light of the Fundamental Rights guaranteed by Part III of the Constitution (see for instance, Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi [ (1975) 1 SCC 421 : 1975 SCC (L&S) 101 : AIR 1975 SC 1331 : (1975) 3 SCR 619 ], International Airport Authority case [ (1979) 3 SCC 489 : AIR 1979 SC 1628 : (1979) 3 SCR 1014 ] and Ajay Hasia case [ (1975) 1 SCC 421 : 1975 SCC (L&S) 101 : AIR 1975 SC 1331 : (1975) 3 SCR 619 ] ). The actions of an instrumentality or agency of the State must, therefore, be in conformity with Article 14 of the Constitution. The progression of the judicial concept of Article 14 from a prohibition against discriminatory class legislation to an invalidating factor for any discriminatory or arbitrary State action has been traced in Tulsiram Patel case [ (1985) 3 SCC 398 : 1985 SCC (L&S) 672] (at pp. 473-76). The principles of natural justice have now come to be recognized as being a part of the constitutional guarantee contained in Article 14. In Tulsiram Patel case [ (1985) 3 SCC 398 : 1985 SCC (L&S) 672] this Court said: (at p. 476, para 95) “The principles of natural justice have thus come to be recognized as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject-matter of that article. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is violation of Article 14; therefore, a violation of a principle of natural justice by a State action is a violation of Article 14. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is violation of Article 14; therefore, a violation of a principle of natural justice by a State action is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of “State” in Article 12, is charged with the duty of deciding a matter.” 14. It has been held in the case of Sudist Narain Thakur vs. Bihar State Financial Corporation and Ors. reported in 2003 SCC OnLine Jhar 435 at para 6 as follows: “Para-6:- It is well settled that in the matter of trading and business activities of the Public Enterprises, the immunities and privileges possessed by the Government Companies or Corporation are subject to fundamental rights and in furtherance of the Directive Principles of State Policy. The contract entered into by these Public Enterprises and the Government Company shall not be unconscionable, unfair, unreasonable and opposed to Public Policy. Law in this regard has been settled by the Supreme Court in the case of Central Inland Water Transport Corporation v. Brojo Nath Ganguly, reported in (1986) 3 SCC 156 : ( AIR 1986 SC 1571 ). Their Lordships observed that the test of reasonableness or fairness of a clause in a contract where there is inequality of bargaining power is another theory recognized in the sphere of law of contracts. The Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or a clause in a contract entered into between parties who are not equal in bargaining power.” 15. It has been held by a Co-ordinate Bench of this Court in W.P.(S) No.1382 of 2006 on 21.12.2011 at paragraph nos.7(xiii), (xiv) and (xvi) which are as follows:- Para-7(xiii):- It has been held by the Hon’ble Supreme Court in case of Syed Abdul Qadir and Others Vs. It has been held by a Co-ordinate Bench of this Court in W.P.(S) No.1382 of 2006 on 21.12.2011 at paragraph nos.7(xiii), (xiv) and (xvi) which are as follows:- Para-7(xiii):- It has been held by the Hon’ble Supreme Court in case of Syed Abdul Qadir and Others Vs. State of Bihar and Others reported in (2009) 3 SCC 475 , especially in paragraph nos.57, 58, 59, 60 and 61, which read as under: “57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. 59. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made. 60. Learned counsel also submitted that prior to the interim order passed by this Court on 7.4.2003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some instalments/amount had already been recovered from some of the teachers. Since we have directed that no recovery of the excess amount be made from the appellant- teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them. 61. In the result, the appeals are allowed in part, the impugned judgment so far as it relates to the direction given for recovery of the amount that has been paid in excess to the appellants - teachers is set aside and that part of the impugned judgment whereby it has been held by the Division Bench that the amended provisions of FR.22-C would apply to the appellants-teachers is upheld. We direct that no recovery of the excess amount, that has been paid to the teachers of Secondary Schools, be made, irrespective of the fact whether they have moved this Court or not. We also direct that the amount that has been recovered from some of the teachers, after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months from the date of receipt of copy of this judgment.”(Emphasis supplied) (xiv):- It has been held by the Hon’ble Supreme Court in case of State of Bihar & Others Vs. Pandey Jagdishwar Prasad, reported in (2009) 3 SCC 117 , especially in paragraph nos.16. Pandey Jagdishwar Prasad, reported in (2009) 3 SCC 117 , especially in paragraph nos.16. 19. 23 and 24, which read as under: “16. Moreover, for the sake of argument, even if we consider that the respondent had fraudulently entered another date of birth in his service book, as had been alleged, it should have come to the notice of the authorities during his course of service, and not after he had attained the age of superannuation after the expiry of the date mentioned in the service book which was based on the affidavit of the respondent. To the contrary, none of the officials responsible had noticed this during his service period, even during his time of promotions when the service book was required to be inspected by the officials. Therefore, it clearly points out to the gross negligence and lapses on the part of the authorities concerned and in our view, the respondent cannot be held responsible to work beyond his date of birth as mentioned in the matriculation certificate when admittedly in the service book after affidavit, some other date of birth was also evident. 19. It is not needed for this Court to verify the veracity of the statements made by the parties. If at all the respondent entered the second date of birth at a subsequent period of time, the authorities concerned should have detected it and there should have been a detailed enquiry to determine whether the respondent was responsible for the same. It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee. 23. Without going into the question whether the appellant was justified after completion of two years from the actual date of retirement to deduct two years' salary and other emoluments paid to the respondent, we may say that since the respondent had worked during that period without raising any objection from the side of the appellant and the appellant had got works done by the respondent, we do not think that it was proper at this stage to allow deduction from his retiral benefits, the amount received by him as salary, after his actual date of retirement. 24. 24. Considering the fact that there was no allegation of misrepresentation or fraud, which could be attributed to the respondent and considering the fact that the appellant had allowed the respondent to work and got works done by him and paid salary, it would be unfair at this stage to deduct the said amount of salary paid to him. Accordingly, we are in agreement with the Division Bench decision that since the respondent was allowed to work and was paid salary for his work during the period of two years after his actual date of retirement without raising any objection whatsoever, no deduction could be made for that period from the retiral dues of the respondent.” (Emphasis supplied) (xvi):- It has been held by the Hon’ble Supreme Court in case of Registrar, Cooperative Societies Haryana & Others Vs. Israil Khan & Others reported in (2010) 1 SCC 440 , especially in paragraph nos.7 and 9, which read as under: “7. There is no `principle' that any excess payment to employees should not be recovered back by the employer. This Court, in certain cases has merely used its judicial discretion to refuse recovery of excess wrong payments of emoluments/allowances from employees on the ground of hardship, where the following conditions were fulfilled: (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous." 9. What is important is, recovery of excess payments from employees is refused only where the excess payment is made by the employer by applying a wrong method or principle for calculating the pay/allowance, or on a particular interpretation of the applicable rules which is subsequently found to be erroneous. But where the excess payment is made as a result of any misrepresentation, fraud or collusion, courts will not use their discretion to deny the right to recover the excess payment.” (Emphasis supplied) 16. It has been held by Hon’ble Supreme Court in the case of State of Punjab Vrs. Rafiq Masih, reported in (2015) (4) SCC 334 at paragraph nos.11, 12, 13, 14 and 18 which are as follows:- “11. It has been held by Hon’ble Supreme Court in the case of State of Punjab Vrs. Rafiq Masih, reported in (2015) (4) SCC 334 at paragraph nos.11, 12, 13, 14 and 18 which are as follows:- “11. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to the employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters. 12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 : (2009) 1 SCC (L&S) 744, wherein this Court recorded the following observation in para 58: (SCC p. 491) “58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana [Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India [Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121], Union of India v. M. Bhaskar [ (1996) 4 SCC 416 : 1996 SCC (L&S) 967], V. Gangaram v. Director [ (1997) 6 SCC 139 : 1997 SCC (L&S) 1652], B.J. Akkara v. Govt. of India [B.J. Akkara v. Govt. of India [B.J. Akkara v. Govt. of India, (2006) 11 SCC 709 : (2007) 1 SCC (L&S) 529], Purshottam Lal Das v. State of Bihar [ (2006) 11 SCC 492 : (2007) 1 SCC (L&S) 508], Punjab National Bank v. Manjeet Singh [ (2006) 8 SCC 647 : (2007) 1 SCC (L&S) 16] and Bihar SEB v. Bijay Bhadur [ (2000) 10 SCC 99 : 2000 SCC (L&S) 394].” (emphasis supplied) 13. First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir case [Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 : (2009) 1 SCC (L&S) 744] recognised, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it 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. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. Based on the above consideration, we are of the view, that 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. 14. In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India [Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121], wherein this Court observed as under: (SCC pp. 525-26, para 11) “11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. 1-1-1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from 1-1-1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same.” ……emphasis supplied) 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. (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.” 17. It has been held by the Division Bench of this Court in L.P.A No.386 of 2020 on 23.08.2021 at paragraph no.8, which is as follows:- “Para-8:- ……….. We found no infirmity in the impugned order for the following reasons:- (i) The State Government being a welfare State if has come out with a policy decision, it has to be followed in entirety but the government has failed in discharging its duty, for the reason 10 that when the resolution dated 08.02.1999 stipulates to grant benefit of upgradation upto 31st December, 1995 but such benefit has not been granted which is the gross laches on the part of the authority. (ii) The principle of fence sitter can only be made applicable when there is delay and laches on the part of the concerned employee but when policy decision has been taken by the State Government, it is the requirement on the part of the State Government to follow the said policy decision uniformly to all concerned. But herein the policy decision dated 08.02.1999 has not been followed scrupulously and uniformly upon all otherwise the benefit of upgradation has been granted in favour of the writ petitioner. The issue of fence sitter has elaborately been discussed by the Hon’ble Apex Court in the case of State of Uttar Pradesh and Ors. Vrs. Arvind Kumar Srivastava and Ors., (2015) 1 SCC 347 , wherein, at paragraph 18 and 19, the Hon’ble Apex Court has been pleased to hold:- “18. The issue of fence sitter has elaborately been discussed by the Hon’ble Apex Court in the case of State of Uttar Pradesh and Ors. Vrs. Arvind Kumar Srivastava and Ors., (2015) 1 SCC 347 , wherein, at paragraph 18 and 19, the Hon’ble Apex Court has been pleased to hold:- “18. ……… in U.P. Jal Nigam v. Jaswant Singh reported in (2006) 11 SCC 464 where the issue was pertaining to entitlement of the employees of U.P. Jal Nigam to continue in service up to the age of 60 years. In Harwindra Kumar v. Chief Engineer, Karmik reported in (2005) 13 SCC 300 this Court had earlier held that these employees were in fact entitled to continue in service up to the age of 60 years. After the aforesaid decision, a spate of writ petitions came to be filed in the High Court by those who had retired long back. The question that arose for consideration was as to whether the employees who did not wake up to challenge their retirement orders, and accepted the same, and had collected their post-retirement benefits as well, could be given relief in the light of the decision delivered in Harwindra Kumar reported in (2005) 13 SCC 300 . The Court refused to extend the benefit applying the principle of delay and laches. It was held that an important factor in 11 exercise of discretionary relief under Article 226 of the Constitution of India is laches and delay. When a person who is not vigilant of his rights and acquiesces into the situation, his writ petition cannot be heard after a couple of years on the ground that the same relief should be granted to him as was granted to the persons similarly situated who were vigilant about their rights and challenged their retirement. In para 7, the Court quoted from Rup Diamonds reported in (1989) 2 SCC 356 . In para 8, S.M. Kotrayya reported in (1996) 6 SCC 267 was taken note of. 19. Some other judgments on the same principle of laches and delay are taken note of in paras 9 to 11 which are as follows: (Jaswant Singh case reported in (2006) 11 SCC 464 , SCC pp. 469-70) “9. In para 8, S.M. Kotrayya reported in (1996) 6 SCC 267 was taken note of. 19. Some other judgments on the same principle of laches and delay are taken note of in paras 9 to 11 which are as follows: (Jaswant Singh case reported in (2006) 11 SCC 464 , SCC pp. 469-70) “9. Similarly in Jagdish Lal v. State of Haryana reported in (1997) 6 SCC 538 this Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the court, then such person cannot stand to benefit. In that case it was observed as follows: (SCC p. 542) “The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Union of India v. Virpal Singh Chauhan reported in (1995) 6 SCC 684 . The appellants” desperate attempt to redo the seniority is not amenable to judicial review at this belated stage.” 10. In Union of India v. C.K. Dharagupta reported in (1997) 3 SCC 395 it was observed as follows: (SCC p. 398, para 9) “9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi v. Union of India gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case. In view of our finding that the benefit of the judgment of the Tribunal dated 17-3-1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief.” 11. In Govt. of W.B. v. Tarun K. Roy reported in (2004) 1 SCC 347 , Their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows: (SCC pp. 359-60, para 34) “34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. Therein it was observed as follows: (SCC pp. 359-60, para 34) “34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in State of W.B. v. Debdas Kumar reported in (1991) Supp (1) SCC 138. The 12 plea of delay, which Mr Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law.” In view of the aforesaid ratio and in the facts and circumstances of the principle of fence sitter, is not applicable herein. 18. Thus, it is well settled from various judgments of Hon’ble Supreme Court and also passed by Division Bench and Co-ordinate Bench of this Court that recovery of excess amount from the employee is not permissible if there is no misrepresentation or suppression by the petitioner-employee and it will be extremely iniquitous and arbitrary to seek refund of the payments mistakenly made to the employee. 19. In the above case also there is neither any suppression or misrepresentation on behalf of the petitioner and accordingly, in view of the mistakes committed by the department excess payment has been made to the petitioner and which cannot be permitted to be recovered at this stage now. 20. Thus, in view of the discussion made above, the impugned order vide letter no.1679 dated 17.11.2016 (Annexue-5) and the letter no.914 and 915 dated 02.12.2016 (Annexure-6) issued by the respondent authorities are set aside. 20. Thus, in view of the discussion made above, the impugned order vide letter no.1679 dated 17.11.2016 (Annexue-5) and the letter no.914 and 915 dated 02.12.2016 (Annexure-6) issued by the respondent authorities are set aside. The respondents are directed to grant pay scale PB (Revised 6th Pay Scale) of Rs.9,300-34,800 with Grade Pay of Rs.4,200/- to the petitioner and the department is further directed to release the amount recovered from the petitioner forthwith. 21. Accordingly, the instant Writ Petition No.4884 of 2017 is hereby allowed.