JUDGMENT : The present writ petition under Article 226 of the Constitution of India is preferred by the petitioner to assail an Order dated 30.06.2017 passed by the respondent no. 4, that is, the Presiding Officer, Labour Court, Assam, Guwahati. By the Order dated 30.06.2017, the respondent no. 4 as the Appointing Authority has held that the appointment of the petitioner on 30.10.2006 is to be treated as appointment in the post of Peon in the office of the Labour Court, Guwahati, Assam and the petitioner’s pay scale is to be revised as per the Revision of Pay Rules [old] from the date of his original appointment, that is, 30.10.2006. In the Order dated 30.06.2017, it has been further observed that the excess salary drawn by the petitioner since the date of his appointment on 30.10.2006 is to be recovered. 2. In order to appreciate the nature of challenge made and its sustainability, it is appropriate to exposit the necessary and relevant background events leading to the passing of the Order dated 30.06.2017. 2.1. The petitioner came to be appointed temporarily as a Driver on daily wage basis for a period from 19.07.2006 to 31.07.2006 in view of suspension of one Anil Baishya by an Office Order dated 19.07.2006 passed by the respondent no. 4. At that point of time, Anil Baishya was serving in the substantive post of Driver in the establishment of the Labour Court, Assam, Guwahati [hereinafter referred to as ‘the Labour Court’, for short] but, Anil Baishya was placed under suspension in contemplation of drawal of disciplinary proceedings against him. Subsequently, an Advertisement came to be published on 20.09.2006 by the office of the respondent no. 4. By the Advertisement published under the hand of the respondent no. 5 applications were invited for filling up a vacancy in the post of Peon in the establishment of the Labour Court. The Advertisement prescribed that the applicant should have the qualification of Class-VIII pass and the applicant should not be below 18 years and should not be above 37 years. The petitioner responded to the Advertisement by submitting his application. After processing all the applications received in response to the Advertisement, the respondent no. 5 issued an Office Order dated 10.10.2006 whereby those applicants who were found eligible, were called to appear for interview before an Interview Board on 27.10.2006 along with the original documents. The petitioner responded to the Advertisement by submitting his application. After processing all the applications received in response to the Advertisement, the respondent no. 5 issued an Office Order dated 10.10.2006 whereby those applicants who were found eligible, were called to appear for interview before an Interview Board on 27.10.2006 along with the original documents. For the said post of Peon, 16 nos. of candidates had applied and out of those 16 nos. of candidates, 14 nos. of candidates appeared in the interview held on 27.10.2006. The results of the interview process were declared on 27.10.2006 itself. As per the Selection List published, the petitioner secured the highest marks in the selection process and his name figured at serial no. 1 in the Selection List. One Nayanmani Sarma secured the second highest marks and accordingly, his name figured at serial no. 2 in the Selection List. After the selection process for the post of Peon was over, the Appointing Authority passed the following Office Order on 30.10.2006 : OFFICE ORDER Dtd. 30.10.2006 In the interest of public service, Sri Dimbeswar Deka, S/o Late Phatik Ch. Deka, Vill & P.O. :- Baihata, P.S. :- Kamalpur, Dist.:- Kamrup [Assam] is appointed to the post of Driver in the office of the Labour Court, Assam, Guwahati in the Scale of Rs. 2650-60-2770-3310-EB-60-3490- 4480-120-5200/- P.M. plus other allowances as admissible under the Rules [Revision of Pay Scale, 1996] with immediate effect. The appointment is purely temporary and provisional and may be terminated at any time without any reason. 2.2. On receipt of the above Office Order dated 30.10.2006, the petitioner submitted his joining letter on 30.10.2006 itself. After joining, the petitioner was discharging the duties and responsibilities in terms of the Office Order and he was enjoying the scale of pay, mentioned therein. 2.3. In the meantime, Anil Baishya who was holding the substantive post of Driver, preferred a writ petition, W.P.[C] no. 4557/2010 before this Court and the said writ petition came to be disposed of by a Judgment and Order dated 01.04.2014. In compliance of the direction made in the Judgment and Order dated 01.04.2014 passed in the writ petition, W.P.[C] no. 4557/2010, an Office Order bearing Memo no. LCG.11/2014-18/Pt/205-208 came to be issued under the hand of the respondent no. 4557/2010 before this Court and the said writ petition came to be disposed of by a Judgment and Order dated 01.04.2014. In compliance of the direction made in the Judgment and Order dated 01.04.2014 passed in the writ petition, W.P.[C] no. 4557/2010, an Office Order bearing Memo no. LCG.11/2014-18/Pt/205-208 came to be issued under the hand of the respondent no. 4 on 02.05.2014, whereby, Anil Baishya had been reinstated to the post of Driver in the establishment of the Labour Court with immediate effect vice the petitioner transferred. The Office Order dated 02.05.2014 further observed that Anil Baishya would be entitled to back salary and continuity of his service as per the observation made in the Judgment and Order [supra]. 2.4. The Office Order dated 02.05.2014 passed in respect of Anil Baishya was followed by another Office Order of even date in respect of the petitioner. In the Office Order bearing Memo no. LCG.8/2006-07/210-214 dated 02.05.2014, passed in respect of the petitioner and under the hand of the respondent no. 4, it was observed that in the interest of public service, the petitioner, officiating Driver in the establishment of the Labour Court, stood reverted, transferred and posted to the post of Peon [with pay protection] in place of Nayanmoni Sarma, who was working provisionally and temporarily in the post of Peon till then. It is pertinent to mention herein that because of his second position in the Selection List published after completion of the selection process initiated by the Advertisement dated 20.09.2006, Nayanmoni Sarma was appointed by an Office Order bearing Memo no. LCG.9/06/437-39 dated 30.10.2006 in the post of Peon in the establishment of the Labour Court in the Scale of Pay : Rs. 2450-40-2770-EB-60-3490-90-3670/-per month plus other allowances with the further observation that the appointment was purely temporary and provisional. By the Office Order dated 02.05.2014 passed in respect of the petitioner, the petitioner was directed to join in his new post immediately and take over the charge of duty from Nayanmani Sarma, and Nayanmani Sarma, officiating Peon was directed to hand over the charge of duty to his reliever, that is, the petitioner. On receipt of the Office Order dated 02.05.2014, the petitioner joined in the post of Peon by submitting a joining letter on 02.05.2014 itself. 2.5. On receipt of the Office Order dated 02.05.2014, the petitioner joined in the post of Peon by submitting a joining letter on 02.05.2014 itself. 2.5. It has further emerged from the materials on record that by an Office Order dated 27.07.2010 passed by the respondent no. 4, the services of Nayanmani Sarma was deputed to the High Court and subsequently by another Office Order dated 02.05.2014 issued under the hand of the respondent no. 4, Nayanmani Sarma was appointed and transferred to the post of Peon in the establishment of the Labour Court with pay protection against a post that had fallen vacant upon voluntary retirement of another incumbent in the post of Peon viz. Bipin Bujarbaruah. Bipin Bujarbaruah who was serving as Peon in the establishment of the Labour Court opted for voluntary retirement and his application for voluntary retirement was accepted by an Office Order dated 02.05.2014 and it was after acceptance of the voluntary retirement of Bipin Bujarbaruah with the said Officer Order dated 02.05.2014, Nayanmani Sarma was appointed with pay protection and transferred to the post of Peon which post had fallen vacant due to the voluntary retirement of Bipin Bujarbaruah. 2.7. Noticing that the petitioner was appointed to the post of a Driver by the Office Order dated 30.10.2006 after his participation in a selection process held for the purpose of filling up a vacancy in the post of Peon in the establishment of the Labour Court and his reversion posting to the post of Peon in the year 2014 vide the Office Order dated 02.05.2014 with pay protection, the petitioner was served with a Show Cause Notice on 17.05.2017, issued under the hand of the respondent no. 5, on the premise that grant of such pay protection was not in conformity with the rules. The petitioner was thereby, asked to show cause as to why the excess payment received by him in view of pay protection should not be recovered from him. In response to the Show Cause Notice dated 17.05.2017, the petitioner submitted his Reply to the Show Cause Notice on 23.05.2017. It is to mention that on 17.05.2017, Nayanmani Sarma was also served with a Show Cause Notice asking him to show cause as to why he should not be discharged from his post as by the Office Order dated 02.05.2014 pertaining to him, he was shown as a Peon. It is to mention that on 17.05.2017, Nayanmani Sarma was also served with a Show Cause Notice asking him to show cause as to why he should not be discharged from his post as by the Office Order dated 02.05.2014 pertaining to him, he was shown as a Peon. Nayanmani Sarma also submitted his Reply to the Show Cause Notice on 22.05.2017. The respondent no. 4 had thereafter, passed the impugned Order dated 30.07.2017 holding that the appointment of the petitioner on 30.10.2006 is to be treated as appointment in the post of Peon in the establishment of the Labour Court and his pay scale has to be re-fixed as per the Revision of Pay Rules from the date of such initial appointment, that is, 30.10.2006 and the excess salary drawn by the petitioner since the date of appointment be recovered. On 30.06.2017, another Order was passed in respect of Nayanmani Sarma wherein it was observed that Nayanmani Sarma had no legal right to continue his services as Office Peon in the establishment of the Labour Court as his appointment was illegal. By the said Order dated 30.06.2017, the services of the Nayanmoni Sarma was terminated with immediate effect. The Order dated 30.06.2017 passed in respect of the petitioner has been put to challenge in the instant writ petition. The Order dated 30.06.2017 pertaining to Nayanmani Sarma was assailed by Nayanmani Sarma in another writ petition, W.P.[C] no. 4083/2017 and the said writ petition, W.P.[C] no. 4083/2017 has already been disposed of by a Judgment and Order dated 17.06.2022. 3. Heard Mr. K. Sarma, learned counsel for the petitioner; Mr. N. Goswami, learned Junior Government Advocate, Assam for the respondent nos. 1, 2 & 5; and Mr. H.K. Das, learned Standing Counsel, GHC for the respondent nos. 3 & 4. 4. The learned counsel for the parties have advanced their submissions in the backdrop of the above obtaining fact situation, which are narrated hereinabove. 5. Mr. Sarma, learned counsel appearing for the petitioner has submitted that there was no fault on the part of the petitioner behind his appointment as a Driver by the Office Order dated 30.10.2006. It was by virtue of his appointment as a Driver by the Office Order dated 30.10.2006, the petitioner was granted the pay scale of a Driver, which was admittedly higher than the pay scale of a Peon. It was by virtue of his appointment as a Driver by the Office Order dated 30.10.2006, the petitioner was granted the pay scale of a Driver, which was admittedly higher than the pay scale of a Peon. The petitioner was reverted back to the post of Peon after the Judgment and Order passed in the writ petition, W.P.[C] no. 4557/2010, whereby, Anil Baishya was directed to be reinstated in the post of Driver. Since the petitioner had emerged as the first ranked candidate in the selection process initiated by the Advertisement dated 20.09.2006 and after his appointment as a Driver on and from 30.10.2006, he was enjoying the pay scale in relation to the post of Driver, albeit a higher pay scale. The petitioner was granted pay protection when he was reverted back to the post of Peon by the Office Order dated 02.05.2014. The petitioner had, thus, continued to enjoy the pay scale of a Driver since the date of his appointment on 30.10.2006 till the passing of the Order dated 30.06.2017. As the impugned Order dated 30.06.2017 has also been stayed by an interim order dated 21.07.2017, the petitioner has been enjoying the higher pay scale pertaining to the post of Driver though he is serving in the post of Peon on and from 02.05.2014. Contending as above, Mr. Sarma has submitted that the impugned direction as regards making recovery of the excess amount since the date of the petitioner’s appointment on 30.10.2006 is arbitrary and not sustainable as the same would extremely harsh. He has further submitted that the petitioner is entitled for the benefit of pay protection in future as the petitioner has been granted such benefit for a substantial period of more than 17 years since 30.10.2006. In support of his such submissions, Mr. Sarma has referred to and relied upon the decisions of the Hon’ble Supreme Court of India in Shyam Babu Verma and others vs. Union of India and others, reported in [1994] 2 SCC 521, and State of Punjab and others vs. Rafiq Masih [White Washer], reported in [2015] 4 SCC 334. He has also referred to the Judgment and Order rendered in the writ petition, W.P. [C] no. He has also referred to the Judgment and Order rendered in the writ petition, W.P. [C] no. 4083/2017 [Nayan Moni Sarma vs. State of Assam and others], to contend that as the petitioner therein, that is, Nayan Moni Sarma has been enjoying the benefit of pay protection, the petitioner should also be entitled for similar benefit of pay protection. 6. Mr. Das, learned Standing Counsel, GHC has submitted that the since the petitioner had participated in a selection process initiated and concluded for the purpose of filling up a vacancy in the post of Peon, the petitioner, by no means, was entitled to enjoy the pay scale of Driver on the strength of the Office Order passed erroneously on 30.10.2006. It is contended by Mr. Das that Anil Baishya was only placed under suspension on 19.07.2006 in contemplation of drawal of departmental proceeding at that point of time, and suspension does not result in cessation of employment. Thus, the petitioner could not have been appointed substantively in the post of Driver on 30.10.2006 as there was no vacancy in the post of a Driver in the establishment of the Labour Court on 30.10.2006. It is further submitted by Mr. Das that the petitioner had accepted his reversion to the post of Peon on 02.05.2014 and since 02.05.2014, the petitioner has been discharging the duties and responsibilities attached to the post of Peon only. At best, the petitioner would be entitled to enjoy the pay scale of Driver only till 02.05.2014 as during that period the petitioner appeared to have discharged the duties and responsibilities attached to the post of Driver. For the subsequent period, the petitioner is not entitled for pay protection as the pay scale of every post is fixed as per the Revision of Pay Rules and the concerned Service Rules. In such view of the matter, the principle laid down in Rafiq Masih [supra] can be applied in the case of the petitioner only for the period from his initial appointment on 30.10.2006 to his reversion to the post of Peon on 02.05.2014, as it appeared that he discharged the duties and responsibilities attached to the post of a Driver during that period only. Mr. Mr. Das has referred to a decision of the Hon’ble Supreme Court of India in Union of India and others vs. Bhanwar Lal Munda, reported in [2013] 12 SCC 433, to contend that the matter of re-fixation of pay to rectify any erroneous fixation of pay scale of an employee falls within the domain of the employer. 7. I have given due consideration to the submissions of the learned counsel for the parties and have also considered the materials brought on record by the parties through their pleadings. I have also gone through the decisions cited at the Bar by the parties. 8. There is no dispute to the fact that as on 30.10.2006, the pay scale prescribed in relation to the post of Driver was admittedly higher than the pay scale prescribed in relation to the post of a Peon in the establishment of the Labour Court. On 30.10.2006, the pay scale prescribed in relation to the post of Peon was Rs. 2450-40-2770-EB-60-3490-90-3670/-per month whereas the pay scale prescribed in relation to the post of Driver was Rs. 2650-60-2770-3310-EB-60-3490-4480-120-5200/-per month. The pay scale of both the posts have undergone revisions from time to time. The disparity in the pay scales of two posts which existed on 30.06.2017, exists as on date. In other words, the prescribed pay scale pertaining to the post of Driver in the establishment of the Labour Court was higher on 30.06.2017 and is higher, as on date, than the prescribed pay scale pertaining to the post of Peon in the establishment of the Labour Court. 9. It is also not in dispute that the Advertisement dated 20.09.2006 was published for the purpose filling up a vacancy in the post of Peon. The entire selection process was initiated and concluded for the purpose of selecting a candidate for filling up the said vacancy. The candidates were never in doubt that they were participating in the selection process for filling up a vacancy in the post of Peon in the establishment of the Labour Court. But, the respondent no. The entire selection process was initiated and concluded for the purpose of selecting a candidate for filling up the said vacancy. The candidates were never in doubt that they were participating in the selection process for filling up a vacancy in the post of Peon in the establishment of the Labour Court. But, the respondent no. 4 perhaps under an erroneous believe that there was a vacancy in the post of the Driver in the establishment of the Labour Court purportedly due to the suspension of Anil Baishya at that relevant point of time, had proceeded to appoint the petitioner in the post of Driver by the Office Order dated 30.10.2006 though the petitioner’s name figured in the first position in the Selection List published for the purpose of filling up the vacancy in the post of Peon. Nayanmani Sarma’s name figured in the second position in the said Selection List and the respondent no. 4 had, by another Office Order of even date, appointed Nayanmani Sarma in the post of Peon in the establishment of the Labour Court wherein the petitioner ought to have been appointed as the first ranked candidate in the Selection List published after conclusion of the selection process. The said situation persisted till 01.04.2024, that is, until the Judgment and Order dated 01.04.2014 passed in the writ petition, W.P.[C] no. 4557/2010, preferred by Anil Baishya. As a direction was made in the said Judgment and Order dated 01.04.2014 for reinstatement of Anil Baishya in the substantive post of Driver in the establishment of the Labour Court, the respondent no. 4 in order to restore the situation, had passed three Office Orders, all dated 02.05.2014, in relation to Anil Baishya, the present petitioner and Nayanmani Sarma respectively. On the said date, that is, 02.05.2014, another event had occurred as an incumbent in the post of Peon, Bipin Bujarbaruah had opted for voluntary retirement and his application for voluntary retirement was accepted on 02.05.2014 resulting into a vacancy in the post of Peon in the establishment of the Labour Court, Assam, Guwahati. By the first Office Order bearing no. LCG.11/2014-15/Pt./205-208 dated 02.05.2014, Anil Baishya was reinstated to the post of Driver in the establishment of the Labour Court with immediate effect showing that the petitioner had been transferred. By the first Office Order bearing no. LCG.11/2014-15/Pt./205-208 dated 02.05.2014, Anil Baishya was reinstated to the post of Driver in the establishment of the Labour Court with immediate effect showing that the petitioner had been transferred. It was ordered that Anil Baishya would be entitled to back salary and continuity of his service, as observed in the Judgment and Order dated 01.04.2014. By the second Office Order bearing no. LCG.8/2006-07/210-214 dated 02.05.2014, the petitioner who was shown as an officiating Driver, was reverted, transferred and posted to the post of Peon with pay protection in place of Nayanmani Sarma, stating that Nayanmani Sarma was working provisionally and temporarily in the said post. By the third Office Order dated 02.05.2014, Nayanmani Sarma who was shown as an officiating Peon, was appointed and transferred to the post of Peon with pay protection, which had fallen vacant due to voluntary retirement of Bipin Bujarbaruah. 10. The petitioner after the Office Order dated 02.05.2014 had immediately joined in the post of Peon by submitting his joining letter on 02.05.2014 itself. Thus, it is not in dispute that since 02.05.2014, the petitioner has been continuously discharging the duties and responsibilities attached to the post of Peon in the establishment of the Labour Court and since then, the petitioner had never discharged the duties and responsibilities attached to the post of Driver in the establishment of the Labour Court. The petitioner is likely to be visited with three consequences by the impugned Order dated 30.10.2006, firstly, the petitioner’s appointment is to be treated as the appointment in the post of Peon in the establishment of the Labour Court on and from the date of his initial appointment on 30.10.2006; secondly, the scale of pay of the petitioner is to be re-fixed as per the Revision of Pay Rules in the post of Peon from the date of his such initial appointment on 30.10.2006; and thirdly, the benefit of excess pay enjoyed by the petitioner in the scale of pay in relation to the post of Driver from 30.10.2006 till then is to be recovered from him. 11. It has been contended by the learned counsel for the petitioner that since the petitioner is enjoying the higher pay scale since his initial appointment till date the petitioner should be continued to be granted benefit of such higher pay scale and the said benefit should not be withdrawn. 11. It has been contended by the learned counsel for the petitioner that since the petitioner is enjoying the higher pay scale since his initial appointment till date the petitioner should be continued to be granted benefit of such higher pay scale and the said benefit should not be withdrawn. Such contention is not found sustainable in law. The pay scale in relation to a post is fixed as per the concerned and extant service rules and the Revision of Pay Rules. The Revision of Pay Rules is framed under the proviso to Article 309 of the Constitution of India. As such, such rules are of constitutional character. An employee holding a particular substantive post in the concerned service is entitled only to the scale of pay, as prescribed by the concerned service rules and the Revision of Pay Rules and no authority can grant any benefit of any higher scale of pay, contrary to such scale of pay prescribed specifically in relation to that particular post. Any such benefit of higher scale of pay given by any authority, be it the appointing authority, would be contrary to law. 12. The period of service of the petitioner since the date of his initial appointment on 30.10.2006 until this date can be divided into three phases. The first phase was from the date of his initial appointment on 30.10.2006, made by the Office Order of even date, till his reversion to the post of Peon by the Office Order issued on 02.05.2014; the second phase was from 02.05.2014 to the date of passing of the impugned Order dated 30.06.2017; and the third phase was from 30.06.2017 till date in view of the interim Order dated 21.07.2017 passed in the present writ petition. In so far as the first phase is concerned, that is, from 30.10.2006 to 02.05.2014, the petitioner had apparently discharged the duties and responsibilities of the post of Driver in the establishment of the Labour Court by virtue of the Office Order dated 30.06.2006, albeit issued unauthorizedly and erroneously by the appointing authority, on the strength of possession of a valid driving licence. During that period, the employee who was substantively appointed in the post of Driver, was under suspension. Such suspension did not create any vacancy in the post of the Driver by the Office Order dated 30.10.2006. During that period, the employee who was substantively appointed in the post of Driver, was under suspension. Such suspension did not create any vacancy in the post of the Driver by the Office Order dated 30.10.2006. Thus, the appointing authority clearly erred in making the appointment of the petitioner in the post of Driver. During the second phase, that is, from 02.05.2014 till 30.06.2017, the petitioner enjoyed the higher pay scale of a Driver in view of the direction of pay protection recorded in the Office Order dated 02.05.2014 by the respondent no. 4. There was no discernible act, attributable to the petitioner, which can be said to be behind passing of the Office Order dated 02.05.2014. It was the respondent no. 4 as the appointing authority, who had extended the benefit of pay protection, thereby, allowing the petitioner to enjoy the higher scale of pay of a Driver during the period from 02.05.2014 till 30.06.2017. It was only in the year 2017, the appointing authority had realized that the benefit of pay protection was erroneously extended to the petitioner. It was after such realization, the Show Cause Notice dated 17.05.2017 was served upon the petitioner and thereafter, the impugned Order dated 30.06.2017 was passed. During the third phase, the petitioner has enjoyed the benefit of higher pay scale of the Driver due to the stay of the impugned Order dated 30.06.2017 by an interim Order dated 21.07.2017 passed in this writ petition. 13. In Rafiq Masih [supra], the Hon’ble Supreme Court has considered validity of an order passed by the employer to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation on the part of their employees. The Hon’ble Supreme Court of India in Rafiq Masih [supra], after considering a number of previous decisions, with regard to recovery of excess pay, has observed as under : 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 employee concerned. If the effect of the recovery from the employee concerned 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 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 employees belonging to Class III and Class IV service [or Group C and Group D' service]. [ii] Recovery from the retired employees, or 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. 14. In Shyam Babu Verma [supra], the petitioners were found entitled only to the pay scale of Rs. 330480 in terms of the recommendation of the Third Pay Commission w.e.f. 01.01.1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they had received the pay scale of Rs. 14. In Shyam Babu Verma [supra], the petitioners were found entitled only to the pay scale of Rs. 330480 in terms of the recommendation of the Third Pay Commission w.e.f. 01.01.1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they had received the pay scale of Rs. 330-560 since 1973 due to no fault on their parts and that scale was being reduced in the year 1984 w.e.f. 01.01.1973, it was held to be just and proper not to recover any excess amount which had already been paid to them. It was directed that no steps should be taken to recover or to adjust any excess amount from the petitioners due to the fault of the respondents. In Shyam Babu Verma [supra], the decision is only with regard to the recovery of excess pay like Rafiq Masih [supra]. 15. Erroneous fixation of the pay of the petitioner at a higher scale of pay either by the Office Order dated 30.10.2006 or by the Office Order dated 02.05.2014 was not account of any misrepresentation or fraud on the part of the petitioner. Evidently, the fixation of pay at a higher scale of pay by erroneously appointing the petitioner in the post of Driver by the Office Order dated 30.10.2006 and extension of the benefit of pay protection by the Office Order dated 02.05.2014 was solely attributable to the employer/appointing authority, who by applying a wrong principle, granted the benefit to the petitioner, which was subsequently found to be erroneous. In such view of the matter, the principle laid down in Rafiq Masih [supra] in so far as the recovery of excess pay is concerned is found applicable propiro vigore to the case in hand. If by virtue of the interim Order dated 21.07.2017 the petitioner continued to receive the benefit of higher scale of pay, then the same principle of no recovery is applicable in respect of the excess pay received during the period after 30.06.2017 until this day. In such view of the matter, the direction made in the impugned Order dated 30.06.2017 in so far as the recovery of excess pay and allowances drawn by the petitioner since his initial date of appointment on 30.10.2006 is liable to be set aside and quashed. It is accordingly ordered. In such view of the matter, the direction made in the impugned Order dated 30.06.2017 in so far as the recovery of excess pay and allowances drawn by the petitioner since his initial date of appointment on 30.10.2006 is liable to be set aside and quashed. It is accordingly ordered. Meaning thereby, the there shall not be any recovery of any amount paid in excess towards pay and allowances to the petitioner during the period from 30.10.2006 till date. 16. Continuing the discussion made in preceding paragraph 8 and paragraph 11, it is noticed that the decision in Bhanwar Lal Munda [supra] is with regard to pay fixation, error in pay fixation and the power of the employer to rectify error in fixation of pay. The core question which fell for examination there was whether the pay of the employee was erroneously fixed. It has been observed in Bhanwar Lal Munda [supra] that if fixation of pay is found to be erroneous, then the authorities would be well within their domain to rectify the same. In the present case, the petitioner was selected only for the vacancy in the post of Peon after the selection process and on the date of appointment of the petitioner on 30.10.2006, it was only a post of Peon which was vacant. It is relevant to mention that the petitioner on being reverted back to the post of Peon by the Office Order dated 02.05.2014, has never challenged the said Office Order. Thus, the said Office Order has attained finality in so far as the petitioner is concerned. In the above obtaining fact situation, the petitioner is only entitled for the pay scale attached to the post of Peon. The fixation of pay scale of the petitioner is, therefore, required to be re-fixed in the post of Peon from the date of his initial appointment on 30.10.2006. In such view of the matter, those parts of the impugned Order dated 30.06.2017, whereby, it has been held that the appointment of the petitioner on 30.10.2006 is to be treated as an appointment in the post of Peon in the establishment of the Labour Court and accordingly, his pay scale is to be re-fixed as per the Revision of Pay Rules from the said date of appointment, that is, 30.10.2006, do not call for any interference. 17. Mr. 17. Mr. Sarma, learned counsel appearing for the petitioner has strenuously contended that the case of Nayanmani Sarma as regards pay protection is similarly situated to the petitioner. On consideration, it is found that such contention is only to be rejected. To draw parity, two persons are to be similarly circumstanced. The case of Nayanmani Sarma is completely different from the case of the petitioner in so far as the matter of pay protection is concerned. Rightly or wrongly, Nayanmani Sarma who was the second ranked candidate in the Selection List published for the lone vacancy in the post of Peon, came to be appointed as an Office Peon by an Office Order dated 30.10.2006. On and from 30.10.2006, Nayanmani Sarma continued to discharge the duties and responsibilities attached to the post of Peon till 02.05.2014 and thereafter also, in view of the Office Order dated 02.05.2014 where he was shown to be freshly appointed in the post of Peon due to the vacancy which arose in the post of Peon, pursuant to the voluntary retirement of Bipin Bujarbaruah. The Office Order dated 02.05.2014 was with pay protection though by the said Office Order, Nayanmani Sarma was shown to be freshly appointed. The reason behind such pay protection was that since 30.10.2006, Nayanmani Sarma was continuously discharging the duties and responsibilities attached to the post of Peon. It was in that background when by the Judgment and Order dated 17.06.2022 passed in the writ petition, W.P.[C] no. 4083/2017, the termination order of Nayanmani Sarma was set aside and quashed, it was observed in the Judgment and Order dated 17.06.2022 that he should be paid all service benefits which he was otherwise entitled to. Such is not the case of the petitioner here. The petitioner has wanted that while discharging duties and responsibilities attached to the post of Peon, he should be given the benefit of the higher pay scale prescribed for the post of Driver on the basis of pay protection, granted vide Office Order dated 02.05.2014, when under the Revision of Pay Rules, the pay scales attached to the post of Peon and the Driver are different with the pay scale for the post of Driver being higher. In such view of the matter, the contention advanced by Mr. Sarma is clearly unsustainable in law. 18. In such view of the matter, the contention advanced by Mr. Sarma is clearly unsustainable in law. 18. In view of the discussions made above and for the reasons assigned therein, the writ petition stands partly allowed to the extent indicated above. It is clarified that after re-fixation of the pay scale w.e.f. 30.10.2006, the pay and allowances resulting from such re-fixation will have of prospective effect from the date of this Order and there shall not be any recovery. The interim Order dated 21.07.2017 stands accordingly modified and merged with this order. There shall, however, be no order as to costs.