JUDGMENT : 1. The petitioner has filed the present petition under Article 226 of the Constitution of the India with the following reliefs:- “(A) Quashing and setting aside the letter dt. 10.1.2012/11.1.2012 ordering recovery from the pension of the petitioner and directing the respondents to refund the amount already recovered from the pension of petitioner. (B) During the pendency and final disposal of this petition, respondent No.3 may be restrained from deducting any amount from the pension of the petitioner for the amount of February 2012 onwards. (C) To grant such and further relief as may be deemed fit and proper.” 2. Facts of the present petition in nutshell are that the petitioner was appointed as Assistant Teacher with effect from 06.01.1987 and he was retired voluntarily on 30.11.2007. It is the case of the petitioner that he started getting pension on the basis of 26 years service i.e. 21 years pensionable service plus 5 years notional service in case of voluntary retirement and after more than 4 years of his retirement, respondent No.3 wrote a letter to the petitioner informing him that five notional years were to be added for pensionable service, but the pension was not to be fixed by adding five increments. It is also the case of the petitioner that he was called upon to deposit Rs.1,42,494/- which was paid as an excess amount of pension and, thereafter, the petitioner wrote a letter to respondent No.3 and pointed out that the administration had committed mistake in giving five notional increments and for the same, he was not responsible. It is also the case of the petitioner that an installment of Rs.4019/- has been deducted from the pension of the petitioner for the month of January 2012 and again he requested respondent No.3 not to deduct any amount from pension and no order for deduction of installment was received by him and yet the amount was deducted. It is the case of the petitioner that in connection with the letter dated 08.02.2012, respondent No.3 conveyed the details of recovery of the petitioner. 3. Being aggrieved and dissatisfied with the impugned action on the part of the respondents, the petitioner has preferred the present petition. 4. Heard Mr.Vedant Rajguru, learned counsel appearing for the petitioner and Ms.Dharitri Pancholi, learned Assistant Government Pleader appearing for respondent – State Authorities. 5. 3. Being aggrieved and dissatisfied with the impugned action on the part of the respondents, the petitioner has preferred the present petition. 4. Heard Mr.Vedant Rajguru, learned counsel appearing for the petitioner and Ms.Dharitri Pancholi, learned Assistant Government Pleader appearing for respondent – State Authorities. 5. Mr.Rajguru, learned counsel appearing for Mr.A. J. Yagnik, learned counsel for the petitioner has submitted the same facts which are narrated in the memo of petition. He has submitted that the petitioner was appointed as assistant teacher in 1987 and he has taken voluntary retirement with effect from 30.11.2007. He has submitted that the respondent – authority has asked the petitioner to give an undertaking for preparing the pension papers and he has given the same and on the basis of the undertaking, the respondent – authority has sought to deduct an amount of Rs.1,42,494/- from the retiral benefits which is accrued due and payable to the petitioner and that recovery was made after 2007. He has submitted that in 2012, the petitioner had preferred an application contending that the so-called excess amount was paid to the petitioner was a mistake on the part fo administration. He has submitted that the correspondence took place between the petitioner and the respondent – authority upto 2015 and ultimately in 2015, the petitioner again preferred an application requesting that whatever amount which is due and recoverable the same be recovered and remaining amount be paid to him and fixed the pension. He has submitted that such request of the petitioner was turned down and recovery was effected from 2007 and, therefore, the action on the part of the respondent – authority is unjust and illegal and the amount which is deducted requires to be paid to the petitioner. 5.1 In support of his submission, Mr.Rajguru, learned counsel appearing for the petitioner has relied upon the following decisions. (1) State of Gujarat Vs. S K Fuletra rendered in Letters Patent Appeal No.1400 of 2019 dated 17.07.2019. (2) Dhyabhai Sunderbhai Parmar Vs. State of Gujarat reported in 2020 (2) G.L.H. 113 . (3) Harishchandra Jagannath Brahmbhatt Vs. State of Gujarat reported in 2019 (3) G.L.H. 498 . (4) Captain (retired) Sudhir Mohanlal Chadha Vs. Vice Chairman and Chief Executive Officer in Special Civil Application No.14714 of 2020 dated 09.11.2023. (5) Yusufbhai Umarbhai Modan Vs. Gujarat Water Supply and Sewerage Board reported in 2018 (0) JX (Guj) 394. (3) Harishchandra Jagannath Brahmbhatt Vs. State of Gujarat reported in 2019 (3) G.L.H. 498 . (4) Captain (retired) Sudhir Mohanlal Chadha Vs. Vice Chairman and Chief Executive Officer in Special Civil Application No.14714 of 2020 dated 09.11.2023. (5) Yusufbhai Umarbhai Modan Vs. Gujarat Water Supply and Sewerage Board reported in 2018 (0) JX (Guj) 394. 5.2 Learned counsel appearing for the petitioner has submitted that considering the settled legal principles enumerated in the above referred decisions, the impugned action on the part of the respondent – authority for deducing the amount deserves to be quashed and set aside. He has submitted that if the authority intends to initiate any action after a period of two years then the authority has to take approval from the Finance Department and in the present case, the Finance Department has not accorded approval for action of deduction of the amount. He has urged that the present petition may be allowed and respondent – authority may be directed to pay the amount to the petitioner. 6. Per contra, Ms.Dharitri Pancholi, learned Assistant Government Pleader appearing for respondent – State Authorities has submitted that the petitioner has filed an undertaking before the respondent – authority on 01.12.2007 i.e. on the next date of his retirement and thereafter, respondent – authority issued notice on 23.12.2011 and asked him to furnish the details and in turn, the respondent – authority has given an opportunity to the petitioner to make his submission. She has submitted that again on 27.02.2015, the petitioner himself has given an application whereby he has urged that he is ready and willing to deposit whatever amount is required to be re-deposited and on such request, the petitioner’s retiral dues was paid. She has submitted that though the petitioner has filed an undertaking, he cannot raise any grievance by way of the present petition. She has submitted that considering the facts that the respondent – authority has given an opportunity to the petitioner to make his submission, however, at that relevant point of time, he has not raised any objection and make submission and after almost two years, he had filed the petition, which may not be entertained. She has referred to and relied upon the notification issued by the Finance Department dated 25.08.2009 so far as the recovery and adjustment of pension is concerned. She has referred to and relied upon the notification issued by the Finance Department dated 25.08.2009 so far as the recovery and adjustment of pension is concerned. She has also referred to and relied upon the affidavit- in-reply filed on behalf of the respondent – authority and has submitted that the petition being meritless deserves to be dismissed. 7. In the case of S K Fuletra (supra), the Division Bench of this Court has held and observed in para 3 to 7 as under:- “3. Learned Single Judge accordingly noticed that when pay-scale was granted to the petitioner upon due consideration, viz. Rs. 5000-8000, it ought not to have been reduced to Rs.4500-7000 and that too by initiating recovery of differential amount of Rs. 85,927/- with retrospective effect. The learned Single Judge relied on the decision of the Apex Court in the case of State of Punjab vs. Rafiq Masih (White Washer) [ (2015) 4 SCC 334 ], in support of the findings in the order impugned. 4. Shri Chintan Dave, learned Assistant Government Pleader, appearing for the appellants would contend that the law laid down in the case of Rafiq Masih (supra) shall have no application in the facts and circumstances of the present case, particularly when the employee had undertaken as Librarian of the College to abide by all conditions enumerated in the Government Resolution dated 16th August, 1994 of Finance Department, State of Gujarat, and therefore, when such undertaking was given, reduction in the pay-scale and consequential order of recovery ought not to have been quashed and set aside by the learned Single Judge. Learned Assistant Government Pleader placed reliance upon a decision of the Apex Court in the case of High Court of Punjab and Haryana and others vs. Jagdev Singh, [ (2016) 14 SCC 267 ] in support of the argument that recovery from an employee is permissible when such employee has furnished an undertaking while opting for revised pay-scale and therefore, such an employee will refund the excess amount paid since the employee was bound by such undertaking. It is therefore submitted that in the facts of the case on hand, this appeal deserves to be allowed by quashing and setting aside the order passed by the learned Single Judge. 5. It is therefore submitted that in the facts of the case on hand, this appeal deserves to be allowed by quashing and setting aside the order passed by the learned Single Judge. 5. Having regard to the facts and circumstances of the case and the submissions made by learned Assistant Government Pleader in the context of the finding of the learned Single Judge about recovery ordered to be initiated from the respondent, a Class-III employee, principles laid down in the case of Rafiq Masih (supra) were applied by learned Single Judge in the order impugned, which read as under: “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 hereinabove, we may, as a ready reference, summarise the following new situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service); (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery; (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued; (iv) Recovery in case 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.” (Para 18)” 6. What is important to be seen is that recovery that is ordered in the case of Class-III and Class-IV employees (or Group-C and Group services), stands on different footing and about the recovery from the retired employees, or the employees who are due to retire within one year, as the case may be. What is important to be seen is that recovery that is ordered in the case of Class-III and Class-IV employees (or Group-C and Group services), stands on different footing and about the recovery from the retired employees, or the employees who are due to retire within one year, as the case may be. In the present case, admittedly, the respondent-employee is Class-III employee and he succeeded before the Gujarat Civil Services Tribunal, which has assigned just reasons to quash and set aside the order of recovery of dues of Rs.85,927/- by considering the Government Resolution dated 16.8.1994 in the context of Rule 28(1) and (2) of the Gujarat Civil Service Rules, where provisions are made about the powers conferred upon the authority under the circumstances in which pay and recovery of excess payment can be considered upon erroneous or incorrect seniority, failure to apply any relevant rules or orders correctly. Even the Government Resolution dated 16th August, 1994 is about grant of revised higher pay scale to employees in the absence of promotional avenues or limited scope of promotion, so that employees are not demoralized or stagnated in particular cadre/post. When the respondent employee was considered for pay scale of Rs.5000-8000 instead of Rs.4500-7000, the fact remains that earlier he was given promotion about which the authorities were aware of. Under the circumstances, it cannot be said that respondent, a Class-III employee, misrepresented his case by giving such undertaking for which recovery could be ordered. It is stated by learned counsel for the respondent that subsequently, the respondent-original petitioner became entitled to receive pay scale of Rs.5000-8000 and was given salary accordingly. We are inclined to accept such submission and do not pass any order in that regard. 7. Thus, letters patent appeal is dismissed by confirming the order of the learned single Judge. Consequently, civil Application does not survive and the same stands disposed of accordingly.” 8. In the case of Dhyabhai Sunderbhai Parmar (supra), this Court has held and observed in para – 7 as under:- “7. The Division Bench has observed that it cannot be said that a Class-III employee, misrepresented his case by giving such undertaking at the time of grant of higher pay scale for which recovery could be ordered. In the case of Dhyabhai Sunderbhai Parmar (supra), this Court has held and observed in para – 7 as under:- “7. The Division Bench has observed that it cannot be said that a Class-III employee, misrepresented his case by giving such undertaking at the time of grant of higher pay scale for which recovery could be ordered. The Division bench while considering the provisions of Rule 28(1) and (2) of the Pay Rules, 2002 vis-a-vis incorrect fixation of higher pay scale and the undertaking has dismissed the letters patent appeal filed by the state. The stand taken by the respondents that the provision of Rule 28 of the Pay Rules, 2002 do not apply in the case of the grant of higher pay scale is misconceived since the benefits of higher pay scale is conferred to the employees in lieu of promotion when they get stagnated in service. Furthermore, an undertaking given by an employee cannot be used against him in light of the statutory provision. Such an undertaking cannot dilute the mandate of Rule 28 which bars recovery if there is erroneous fixation of pay by the state authorities. The Rule also postulates of initiation of departmental proceedings against an employee who gives false information. Thus, an undertaking given by an employee cannot be used at his detriment if the pay is fixed erroneously by the state authorities and there is no fault or misrepresentation of the employee.” 9. In the case of Harishchandra Jagannath Brahmbhatt (supra), this Court has held and observed in para – 10 to 15 as under:- “10. It is the contention of the State Government that the petitioner had given an undertaking at the time of conferring the benefit of higher pay scale to the effect that if it is found that the same is re-fixed incorrectly, he has to refund amount to the State Government. 11. In the considered opinion of this Court, the aforesaid contention is absolutely misconceived and the petitioner cannot be made to suffer for the administration lapses which had occurred during his service period. The retirement benefits of the petitioner were withheld on the ground of incorrect fixation of higher pay scale. The entire exercise of verification of the pay fixation was also done by the Local Fund Audit which had verified and sanctioned the pay fixation of the petitioner. The retirement benefits of the petitioner were withheld on the ground of incorrect fixation of higher pay scale. The entire exercise of verification of the pay fixation was also done by the Local Fund Audit which had verified and sanctioned the pay fixation of the petitioner. The state authorities should have carried out the necessary verification when the petitioner was in service, within a short span after he was granted the benefit of higher pay scale. The respondent State has also not brought to the notice of this Court that any action is taken against the erring officers, who at the relevant time have verified and sanctioned the pay-scale of the petitioner. Thus, the petitioner cannot be made to suffer for the quiescent attitude of the officers. It is also pertaining to note that prior to his retirement, the respondent No.3 had also issued "No Due Certificate" and thereafter, when his retirement benefits were required to be paid, they withheld the leave encashment on the ground of recovery. 12. In the given facts of the case, it would, be suffice to quote Rule 28 of the Gujarat Civil Services (Pay) Rules; 2002, which reads as under :- "28. Pay when promotion or appointment is found to be erroneous: (1) Notwithstanding the provisions contained in these rules, the pay of a Government employee whose promotion or appointment to a post is found to be or to have been erroneous on the basis of facts, e.g. incorrect seniority, failure to apply any relevant rules or orders correctly, shall be regulated in accordance with the general or special orders issued by the Government in this behalf. (2) When any rule or order regulating pay is made with retrospective effect, the pay of a Government employee affected by such order or rule, shall be fixed notionally as if the rule or order were applicable in his case but the Government employee concerned shall not be called upon to refund the resultant amount of overpayment on account of pay and allowances; Provided that in the case where the erroneous promotion or appointment was given on the basis of false information furnished by the concerned Government employee; departmental action shall be taken against him and the resultant amount of overpayment on account of pay and allowances shall also be recovered from him.(emphasis supplied)." At this stage, it would be apposite to refer to the observations made by the Division Bench in the judgment dated 17.07.2019 passed in Letters Patent Appeal No.1400 of 2019. The Division Bench after considering the judgment of the Supreme Court in the case of State of Punjab Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334 as well as the judgment cited by the learned Assistant Government Pleader in the case of High Court of Punjab and Haryana Vs. Jagdev Singh, reported in (2016) 14 SCC 267 while dealing with the similar issue and facts has observed thus: "5. Having regard to the facts and circumstances of the case and the submissions made by learned Assistant Government Pleader in the context of the finding of the learned Single Judge about recovery ordered to be initiated from the respondent, a Class-III employee, principles laid down in the case of Rafiq Masih (supra) were applied by learned Single Judge in the order impugned, which read as under: "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 hereinabove, we may, as a ready reference, summarise the following new situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service); (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery; (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued; (iv) Recovery in case 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." (Para 18)" 6. What is important to be seen is that recovery that is ordered in the case of Class-III and Class-IV employees (or Group-C and Group services), stands on different footing and about the recovery from the retired employees, or the employees who are due to retire within one year, as the case may be. In the present case, admittedly, the respondent employee is Class-III employee and he succeeded before the Gujarat Civil Services Tribunal, which has assigned just reasons to quash and set aside the order of recovery of dues of Rs.85,927/- by considering the Government Resolution dated 16.8.1994 in the context of Rule 28(1) and (2) of the Gujarat Civil Service Rules, where provisions are made about the powers conferred upon the authority under the circumstances in which pay and recovery of excess payment can be considered upon erroneous or incorrect seniority, failure to apply any relevant rules or orders correctly. Even the Government Resolution dated 16th August, 1994 is about grant of revised higher pay scale to employees in the absence of promotional avenues or limited scope of promotion, so that employees are not demoralized or stagnated in particular cadre/post. Even the Government Resolution dated 16th August, 1994 is about grant of revised higher pay scale to employees in the absence of promotional avenues or limited scope of promotion, so that employees are not demoralized or stagnated in particular cadre/post. When the respondent employee was considered for pay scale of Rs.5000-8000 instead of Rs.4500-7000, the fact remains that earlier he was given promotion about which the authorities were aware of. Under the circumstances, it cannot be said that respondent, a Class-III employee, misrepresented his case by giving such undertaking for which recovery could be ordered. It is stated by learned counsel for the respondent that subsequently, the respondent-original petitioner became entitled to receive pay scale of Rs.5000-8000 and was given salary accordingly. We are inclined to accept such submission and do not pass any order in that regard." 13. The Division Bench has observed that it cannot be said that a Class-III employee, misrepresented his case by giving such undertaking at the time of grant of higher pay scale for which recovery could be ordered. The Division bench while considering the provisions of Rule 28(1) and (2) of the Pay Rules, 2002 vis-a-vis incorrect fixation of higher pay scale and the undertaking has dismissed the letters patent appeal filed by the state. The stand taken by the respondents that the provision of Rule 28 of the Pay Rules, 2002 do not apply in the case of the grant of higher pay scale is misconceived since the benefits of higher pay scale is conferred to the employees in lieu of promotion when they get stagnated in service. Furthermore, an undertaking given by an employee cannot be used against him in light of the statutory provision. Such an undertaking cannot dilute the mandate of Rule 28 which bars recovery if there is erroneous fixation of pay by the state authorities. The Rule also postulates of initiation of departmental proceedings against an employee who gives false information. Thus, an undertaking given by an employee cannot be used at his detriment if the pay is fixed erroneously by the state authorities and there is no fault or misrepresentation of the employee. 14. In the present case, even if the State Government was to act on such undertaking, it should have been within a reasonable period when the Local Fund Audit had approved the pay fixation. 14. In the present case, even if the State Government was to act on such undertaking, it should have been within a reasonable period when the Local Fund Audit had approved the pay fixation. The impugned order has been passed after a span of almost 12 years, after the pay fixation was approved by the Local Fund Audit and entries to that effect were also made in the service book. Thus, the petitioner who is a retired employee was not paid the final retirement benefits due to impugned orders passed by the respondents effecting recovery of the amount of pay fixation, which was conferred to him since 1998. The State authorities being a model employer has to act very fairly and reasonably and has to see that a retired employee is not being harassed in such a manner due to their inaction. The impugned orders are replete with impropriety and the insouciant attitude shown by the respondents towards a retired employee requires to be highly deprecated. 15. In view of the above, the impugned orders are hereby quashed and set aside. Any amount which is withdrawn in view of the impugned orders shall be repaid and refunded to the petitioner with an interest of 9% from the date of recovery since the aforesaid amount has remained with the State authorities. Necessary orders in this regard shall be passed within a period of eight (08) weeks from the date of receipt of the present order. Rule made absolute.” 10. In the case of Captain (retired) Sudhir Mohanlal Chadha (supra), this Court has held and observed in para12 to 17 as under:- “12. Insofar as the amount of recovery is concerned, the same after retirement, the same appears to be covered under the ambit of the law laid down by the Hon’ble Supreme Court in case Rafiq Masih (supra) yet, there appears to be an issue of the petitioner having given certain undertakings after his retirement, which is being relied upon by the respondents. It appears that there are two undertakings given by the petitioner. The first dated 10.10.2019 whereby the petitioner had inter alia stated that he consents to the respondents deducting any recoverable amount as payable to the State/Gujarat Maritime Board from the gratuity of the petitioner. 13. It appears that there are two undertakings given by the petitioner. The first dated 10.10.2019 whereby the petitioner had inter alia stated that he consents to the respondents deducting any recoverable amount as payable to the State/Gujarat Maritime Board from the gratuity of the petitioner. 13. The second appears to undertaking dated 20.08.2020 whereby the petitioner had stated that if there is any amount overpaid upon revision of the 7th Pay Commission then the petitioner consents for the same to be recovered from the retiral dues available to the petitioner. With regard to the undertakings while it is to be noted that the said undertakings are given by the petitioner after his retirement and thus it could be stated to be undertaking which are not given at arms length. A retired employee, not receiving any pension, upon being told to give undertakings which would facilitate processing of the pension papers would normally view the same as necessary requisites which would aid the processing of the pension case of the employee and whereas such undertakings cannot be relied upon to state that the employee had consented. The overwhelming consideration that would weight with the retired employee is to ensure that he receives his retiral dues at the earliest, more particularly, the same could come in aid of retirement planning of the employee concerned and whereas all actions taken by the retired employee have to be considered from the prism of such overwhelming consideration. Considered from such a view point it would clearly appear that the transaction of giving undertaking is not an arms length transaction. 14. Again if the contents of the undertaking are seen, in the first undertaking the petitioner consents to the respondents recovering any amount of government dues to be recovered from his gratuity and in the second undertaking the petitioner consents for recovery of amount overpaid to him in the revision as per the 7th Pay Commission recommendations. In the considered opinion of this Court, none of the undertakings would come to the aid of the respondents, since a consent for recovery by an employee would mean consent to recover an amount which the respondents could do as per the law. In the considered opinion of this Court, upon the law laid down by the Hon’ble Supreme Court in case of State of Punjab & Ors. vs. Rafiq Masih (White Washer) etc. In the considered opinion of this Court, upon the law laid down by the Hon’ble Supreme Court in case of State of Punjab & Ors. vs. Rafiq Masih (White Washer) etc. reported in 2015 (4) SCC 334 , recovery from an employee after his retirement is impermissible. Thus any consent by the petitioner, would not enable the respondents to do something which is prohibited/rendered impermissible. 14.1. On the other hand insofar as the second undertaking is concerned, the same is with regard to amount allegedly overpaid upon the revision of pay as per the 7th Pay Commission and whereas it does not appear that the respondents have a case about any amount overpaid to the petitioner upon revision in the 7th Pay Commission. In view of the above, the undertakings would not come to the aid of the respondents. 15. At this stage it would be apposite to refer to the decision of the Hon’ble Supreme Court in case of State of Punjab & Ors. vs. Rafiq Masih (supra), whereby the Hon’ble Supreme Court has laid down instances where recovery from a retired employee would far outweigh the corresponding right of the employer to recover and whereas the Hon’ble Supreme Court has laid out such impermissible instances at paragraph no. 12 and whereas paragraph no. 12 (ii) states about recovery from retired employees or employees who are due to retire within one year, of the order of recovery being impermissible. In the considered opinion of this Court, the recovery by the respondents from the gratuity of the petitioner being after retirement of the petitioner, the case of the petitioner may be squarely covered by the said decision, and hence insofar as recovery aspect is concerned, the same is declared being impermissible and illegal. 16. Insofar as the fixation of the amount of pension, it is the case of the petitioner that having received salary in the basic pay of Rs. 86100/- in the last 10 months prior to his retirement, the amount of pension ought to be fixed on the said basis. On the other hand, from the submission made by learned Advocate Mr.Munshaw, it would appear that the said fixation to the detriment of the petitioner is on the basis of the petitioner not clearing the Gujarati language examination which objection had been taken by the Accounts Officers (Pension) while processing the pension papers of the petitioner. On the other hand, from the submission made by learned Advocate Mr.Munshaw, it would appear that the said fixation to the detriment of the petitioner is on the basis of the petitioner not clearing the Gujarati language examination which objection had been taken by the Accounts Officers (Pension) while processing the pension papers of the petitioner. It would further appear that upon the careful perusal of the affidavit-in-rely as well as the documents appended thereto that the except for an objection taken by the Accounts Officers vide communication dated 24.02.2020, there is no decision taken by the respondents whereby the fixation of the said amount could be justified. It also appears that the respondents have before taking any decision not afforded an opportunity of hearing to the petitioner. Thus the said action requires interference more particularly since it appears that neither the principles of natural justices were adhered to before a decision to the detriment of the petitioner had been taken and nor does it appear that there is any specific decision taken except a vague assertion in the affidavit in reply that some decision appears to be taken on file. In the considered opinion of this Court, in a decision of the like nature, where the pension of an employee is reduced for all time to come, it is imperative that the employee is afforded an opportunity of hearing and whereas there should be a specific decision available which should contain reasons leading to the decision . In absence of the same, the decision on part of the respondents would be unsustainable. 17. Having regard to the above discussion, analysis and conclusion, the following order is issued: [1] The decision of the respondents of recovering an amount of Rs. 6,49,575/- from the gratuity of the petitioner is hereby quashed and set aside. [2] The respondents are directed to forthwith repay to the petitioner the said amount with interest at the rate of 6% from the date of entitlement to the date of disbursement. Such disbursement shall be made by the respondents within a period of four weeks from the date of receipt of this order. [3] The action of the respondents of fixing the pension of the petitioner at the rate of Rs. 40600/- is hereby quashed and set aside. Such disbursement shall be made by the respondents within a period of four weeks from the date of receipt of this order. [3] The action of the respondents of fixing the pension of the petitioner at the rate of Rs. 40600/- is hereby quashed and set aside. The petitioner shall be entitled to be paid pension and other retiral dues by treating the basic pay of the petitioner as Rs.86100/- i.e. the basic pay of the petitioner at the time of his retirement. Difference of pension and other retiral dues of pension on basis of such reworking of pension shall be paid to the petitioner within a period of six weeks from the date of receipt of this order. [4] It would be open for the respondents to take appropriate decision with regard to fixing the pension of the petitioner at a lower stage than the entitlement, more particularly after giving adequate opportunity to the petitioner. [5] It is further clarified that in case the petitioner would be aggrieved by any such decision then it would be open for the petitioner to avail of appropriate remedy as available under the law.” 11. In the case of Usufbhai Umarbhai Modan (supra), this Court has held and observed in para 5, 6 and 7 as under:- “5. What emerges from the record is that the petitioner's pay was revised by an order dated 11.09.2009. Approximately two years after such pay fixation, without any opportunity being offered to the petitioner, his pay was ordered to be refixed and reduced. This refixation purportedly as is evident from the contents of the reply is because of the fact that the period of suspension was not regularized and therefore the petitioner was not entitled to benefits during the interregnum. Admittedly, as is evident from the reply that though the Executive Engineer was aware of these facts an administrative error occurred which needed to be corrected and was so corrected. 5.1 It is therefore clear that the initial pay fixation of the petitioner and the subsequent reduction and recovery of pay ordered as a result of such refixation was done with the view to correct a mistake. It is not the case of the department that the initial revised pay fixation by order dated 11.09.2009 was done as a result of any fraud or misrepresentation on the part of the petitioner. It is not the case of the department that the initial revised pay fixation by order dated 11.09.2009 was done as a result of any fraud or misrepresentation on the part of the petitioner. Obviously, therefore, when it is not the case of the petitioner that he had led the authorities to secure the benefit of pay fixation that was done, it was not open for the respondent authorities to recover any amount as a result of the correction of an administrative mistake. This position of law is no longer in dispute and even in a recent decision of the Apex Court in the case of State of Punjab and Others vs. Rafiq Masih (White Washer) and Others reported in (2015) 4 SCC 334 . The position of law as enunciated by the judgement of the Supreme Court is reproduced hereinbelow: 7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court. 8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. 18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover. " 5.2 This is obviously a case where payments have been made mistakenly and recovery cannot be ordered as it is not a case where the employee has earned such benefit as a result of misrepresentation. 6. Mr. Munshaw has relied on a condition of the order dated 21.07.2011 to submit that in view of the said order the petitioner had given an undertaking that in case the pay fixation is found to be wrong he would refund the overpayment if it comes to the notice of the employer. In support of this submission, Mr. 6. Mr. Munshaw has relied on a condition of the order dated 21.07.2011 to submit that in view of the said order the petitioner had given an undertaking that in case the pay fixation is found to be wrong he would refund the overpayment if it comes to the notice of the employer. In support of this submission, Mr. Munshaw has relied on the decision of the Apex Court in the case of High Court of Punjab and Haryana and Others vs. Jagdev Singh reported in (2016) 14 SCC 267 . Paragraph 11 of the said decision is pressed into service which reads as under: "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." 6.1 True it is that in the event an employee gives an undertaking, he may be estopped from then contending that the recovery cannot be made. However, it is not in dispute from the affidavit-in-reply of the facts of the case that though the Executive Engineer was well aware of the facts no corrective action was taken by the authorities and it was only when an administrative error came to light that corrective measures have been taken. It is obviously therefore a case when the authority as such has refixed the pay of the petitioner which was otherwise granted to him by mistake. It is also evident from reading the order/communication dated 26.12.2011 that the initial revision of pay was done by mistake. It is true that a mistake can always be corrected. However, when it is not as a result of any misrepresentation or fraud, the petitioner cannot be made to suffer and a recovery as a consequence thereof cannot be ordered. 7. For the foregoing reasons, petition is allowed. The action of the respondents in ordering recovery of the amount of Rs.32,317/- consequent to refixation of pay by the order dated 21.07.2011 as well as the letter dated 25.11.2011 are hereby quashed and set aside. 7. For the foregoing reasons, petition is allowed. The action of the respondents in ordering recovery of the amount of Rs.32,317/- consequent to refixation of pay by the order dated 21.07.2011 as well as the letter dated 25.11.2011 are hereby quashed and set aside. It is clarified that as far as refixation done pursuant to the order dated 21.07.2011, the same is not interfered with in view of the categorical assertion made by the petitioner that he is not raising the point regarding pay fixation in the petition. Rule is made absolute accordingly.” 12. It is relevant to note that the petitioner has emphasized upon Rule 148 of the Gujarat Civil Services (Pension) Rules, 2002, which reads as under:- “Rule 148 : Revision of Pension after authorisation - (1) Subject to the provisions of Rules 23 and 24, pension once authorised after final assessment shall not be revised to the disadvantage of the Government employee, unless such revision becomes necessary on account of detection of a clerical error subsequently: Provided that no revision of pension to the disadvantage of the pensioner shall be ordered by the Pension Sanctioning Authority without the concurrence of the Finance Department, if the clerical error is detected after a period of two years from the date of authorisation of pension. (2) A notice shall be served by the Pension Sanctioning Authority to the retired Government employee requiring him to refund the excess payment of pension within a period of two months from the date of receipt of notice by him for the purpose of sub-rule (1). (3) In case the Government employee fails to comply with the notice, the Pension Sanctioning Authority shall, by order in writing, direct that such excess payment, shall be adjusted in installments by short payments of Temporary Increase of pension in future, in one or more installments, as the Pension Sanctioning authority may direct.” 13. (3) In case the Government employee fails to comply with the notice, the Pension Sanctioning Authority shall, by order in writing, direct that such excess payment, shall be adjusted in installments by short payments of Temporary Increase of pension in future, in one or more installments, as the Pension Sanctioning authority may direct.” 13. The petitioner has also emphasized upon Rule 28 of the Gujarat Civil Services (Pay) Rules 2002 which reads as under:- “Rule 28 Pay when promotion or appointment is found to be erroneous - (1) Notwithstanding the provisions contained in these rules, the pay of a Government employee whose promotion or appointment to a post is found to be or to have been erroneous on the basis of facts e.g. incorrect seniority, failure to apply any relevant rules or orders correctly, shall be regulated in accordance with the general or special orders issued by the Government in this behalf. (2) When any rule or order regulating pay is made with retrospective effect, the pay of a Government employee affected by such order or rule, shall be fixed notionally as if the rule or order were applicable in his case but the Government employee concerned shall not be called upon to refund the resultant amount of over payment on account of pay and allowances; Provided that in the case where the erroneous promotion or appointment was given on the basis of false information furnished by the concerned Government employee; departmental action shall be taken against him and the resultant amount of over payment on account of pay and allowances shall also be recovered from him.” 14. I have thoughtfully considered the submissions canvassed by the learned counsel appearing for the respective parties and perused the documents as pointed out by them. I have also perused the averments made in the petition and the affidavit-in- reply filed on behalf of the respondent – authority and the decisions cited at the Bar. 15. The question which arise for consideration of this Court is whether the action of the respondent – authority was justified in recovery of the amount and deducting the same from the retiral dues of the petitioner. 16. Considering the facts and circumstances of the case, it appears that the petitioner was appointed as assistant teacher with effect from 06.01.1987 and he has taken voluntary retirement from the service with effect from 30.11.2007. 16. Considering the facts and circumstances of the case, it appears that the petitioner was appointed as assistant teacher with effect from 06.01.1987 and he has taken voluntary retirement from the service with effect from 30.11.2007. On relying upon the undertaking filed by the petitioner, the respondent – authority deducted the amount from the retiral dues of the petitioner as the same was paid to him is an excess amount. The notification which is referred to and relied upon by the learned Assistant Government Pleader is for recovery and adjustment of excess payment of pension which is paid to the employee. Here in the present case, it is not a case of excess amount paid to the petitioner after his retirement, but the respondent – authority has deducted such amount considering the prior payment made to the petitioner subsequent to retirement. It is now well settled by the series of the decisions of this Court as well as the Hon’ble Supreme Court that if any recovery is to be sought from the employee by the employer on the ground that the amount which is paid to the employee is an excess amount for which he is not entitled to and on that misconception there is any excess payment made to the employee then the same is to be recovered by way of recovery proceedings, however, it is misconception on the part of the employer. Since it is not fault on the part of the concerned employee but it is on the part of incorrect calculation made by the concerned employer or the concerned department who has paid the amount to the employee and on the basis of such incorrect fixation of the pay or incorrect calculation, the recovery cannot be made relying upon such calculation as it is prohibited by the Hon’ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (While Washer) and others reported in (2015) 4 SCC 334 and subsequently thereafter the said decision is distinguished in the case of Punjab and Haryana and others Vs. Jagdev Singh reported in (2016) 14 SCC 267 . The respondent – authority is not justified in saying that the petitioner has furnished details and/or submitted an undertaking and therefore he cannot object the said deduction. Jagdev Singh reported in (2016) 14 SCC 267 . The respondent – authority is not justified in saying that the petitioner has furnished details and/or submitted an undertaking and therefore he cannot object the said deduction. In fact, this Court has, after relying upon the said decisions and while considering the observations made in the Letters Patent Appeal No.1400 of 2019, categorically decided such issue by making observation in para – 6 to 8 as referred hereinabove. Thus, considering such aspect, I am of the opinion that the action on the part of the respondent – authority is unjust, illegal and arbitrary. So far as the contention with regard to the notification, which is referred to and relied upon by the learned Assistant Government Pleader is concerned, the same came into force w.e.f. August 2009, whereas, the petitioner was retired in the year 2007 and, therefore, the effect of such notification cannot be turned retrospective but by virtue of the said notification, the respondent – authority cannot be permitted to take the shelter of the notification as retirement of the employee is much prior to the date of such circular. The action of the respondent – authority is completely baseless and erroneous and the same deserves to be quashed and set aside. Considering the above referred decisions, I am of the opinion that the petitioner is entitled to get the amount which is recovered by the respondent – authority. 17. For the foregoing reasons, the petition is allowed. The impugned action on the part of the respondent – authority is hereby quashed and set aside. The petitioner is entitled to get amount which is recovered by the respondent – authority with interest of 6% p.a. from the date of recovery till the actual disbursement. The respondent – authority is directed to pay the said amount within four months from the date of the receipt of the writ of this order. Rule is made absolute to the aforesaid extent. There shall be no order as to costs.