JUDGMENT : BRIJ RAJ SINGH, J. 1. Heard Shri Vikas Vikram Singh, learned counsel for the petitioner, and learned Standing Counsel for the State-respondent no.1 and Shri I.M. Pandey, learned counsel for the respondent nos.2 to 5. 2. The present petitioner has been filed with the following prayer:- "i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 05-02-2018 passed by opposite party no.2 by means of which his pay fixation has been calculated after deducting the excess salary, so that recovery of excess payment of salary made to the petitioner be made directing from post retiral dues as contained in Annexure No.1 to writ petition. (ii) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 02.02.2016 passed by opposite party no.2 directing for recovery of excess payment of salary made to the petitioner from his post retirement dues as contained in Annexure No.2 to writ petition, passed by the opposite party No. 2. (iii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to release the amount recovered and withheld i.e Rs. 1,17,077/- (One Lakh Seventeen Thousand and Seventy Seven Only) from the post retirement dues of the petitioner alongwith interest @ 18% per annum. (iv) Issue any other writ, order or direction in the nature, which this Hon'ble Court may deem fit and proper in the circumstances of the case and allow the writ petition with costs." 3. Contention of the learned counsel for the petitioner is that the identically placed employees from whom the corporation made recovery, had approached this Court by filing writ petitions and this Court has been pleased to allow the writ petitions directing the respondents to pay the amount which had been deducted from their post refiral dues. The Writ Petition No.18476 of 2017 ( Sabbir Hasan Vs State of UP ) was dismissed by this Court on 17.08.2017, against which, an SLP before the Hon'ble Apex Court was filed and the same was allowed on 16.08.2019 by setting aside the order dated 17.08.2017. 4. It has been submitted that the office order dated 06.09.2012 was issued by respondent no.2, considering the G.O. dated 09.03.2010, by which, the approval was granted for implementation of ACP to the employees falling within the prescribed criteria. 4. It has been submitted that the office order dated 06.09.2012 was issued by respondent no.2, considering the G.O. dated 09.03.2010, by which, the approval was granted for implementation of ACP to the employees falling within the prescribed criteria. The petitioner was also given benefit of the order dated 06.09.2012. He further submitted that the respondent no.2 vide office order dated 19.09.2015 pursuant to the order dated 08.09.2015 passed by the State Government, had cancelled his earlier order dated 06.09.2012 by means of which, benefit of ACP was granted to the petitioner and other similarly situated employees. The perusal of the order dated 19.09.2015 would indicate that the fresh proposal was issued by the State Government as provided in G.O. dated 17.08.2010 and, thereafter, it is mentioned that neither in the office order dated 08.09.2015 nor in the order dated 19.09.2015, there has been any discussion about the recovery of amount/salary paid to implement the office order dated 06.09.2012. 5. It has further been submitted that the The petitioner superannuated on 30.11.2016 from the post of Assistant Project Manager from U.P. Project Corporations Ltd. and the impugned order dated 02.02.2010 was issued which was stayed by the corporation vide order dated 20.02.2016 and after retirement, the order dated 05.02.2018 was issued by the corporation. 6. In support of his submission, learned counsel for the petitioner has relied upon the order dated 26.07.2016 passed in Writ Petition No.3670 of 2016 S/S (Ram Murti Singh Vs. State of UP and Ors.) and order dated 26.07.2016 passed in Writ Petition No.3206 of 2016 S/S (Badri Narayan Chaubey Vs. State of UP). 7. He has further relied upon the judgement of the Hon'ble Apex Court passed in Civil Appeal No.6357–58 of 2019; (Sabbir Hassan Vs. State of UP and Ors.) on 16.08.2019. He has further submitted that the judgement of Hon'ble Apex court passed in case of Subbir Hassan (supra) is very much applicable in the case of the petitioner for a reason that the writ petition filed by Subbir Hassan was dismissed on 17.08.2017 against which, SLP was filed and the Hon'ble Apex Court allowed the said SLP vide order dated 16.08.2019 with the following observations: "7. This Court, in "State of Punjab and others Vs. Rafig Masih and Others", reported in (2015) 4. This Court, in "State of Punjab and others Vs. Rafig Masih and Others", reported in (2015) 4. SCC 334, has laid down the following principles of recovery :- "It is not possible to postulate all situation 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 employers belonging to Class-III and Class -IV service (or Group 'C' and Group 'D' service) (ii) Recovery from employees, or the 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." 8. In the light of the above decision and the principles laid down by this court, in our opinion, the recovery could not have been made from the appellant. Thus, the impugned order, is set aside and the appeals are allowed holding that the recovery shall not be made from the appellant. Pending interlocutory application(s), if any, is/are disposed of." 8. Learned counsel for the petitioner has further submitted that in fixation of pay-scale, delay and laches would not come into the way of the petitioner as there is continuation of the cause of action. 9. Learned counsel for the petitioner has next relied upon the judgement of the Hon'ble Apex Court passed in the case of M.R. Gupta Vs. Union of India and Ors. reported in 1995 AIR SCW 4675. 10. Relevant portion of the aforesaid judgment is reproduced as under: "5. 9. Learned counsel for the petitioner has next relied upon the judgement of the Hon'ble Apex Court passed in the case of M.R. Gupta Vs. Union of India and Ors. reported in 1995 AIR SCW 4675. 10. Relevant portion of the aforesaid judgment is reproduced as under: "5. Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified, Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1-8-1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action. 6. The Tribunal misdirected itself when it treated the appellant's claim as 'one time action' meaning thereby that it was not a continuing wrong based on a recurring cause of action. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action. 6. The Tribunal misdirected itself when it treated the appellant's claim as 'one time action' meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a Goverment servant to be paid the correct salary throughout his tenure according to computation made in accordance with rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Subba Rao v. Mattapalli Raju , AIR 1950 Federal Court 1)." 11. He has also relied upon another judgment of the Hon'ble Apex Court passed in Union of India Vs. Tarsem Singh reported in (2008) 4 Raj LW 3167. 12. Relevant portion of the aforesaid judgmetn is reproduced as under: "5. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition. 6. In this case, the delay of 16 years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to 16 years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances." 13. Learned counsel for the petitioner has submitted that the stand of the petitioner regarding the benefits given to the similarly situated employees mentioned in para 5-6 has not been denied specifically to the effect that the case of the petitioner is not at par with the case of those similarly situated employees who have been granted benefit. He has submitted that in para 25 to the counter affidavit of the answering respondents, though the averment of para 5 and 6 has been denied but the stand has been taken by the answering respondent that the petitioner was initially allowed the pay-scale admissible to the junior engineers of the answering corporation but the higher pay-scale was later on given in the anticipation of the Government sanction pending in the matter and it was specifically mentioned that in case of there being any defect/mistake, the excess payment made in pursuance of this order shall be recovered. 14. 14. It has been submitted by learned counsel for the petitioner that the entire statement of fact in para 25 of the counter affidavit indicates that doctrine of acquiescence has been pleaded but it is nowhere mentioned that the case of the petitioner is not at par with the cases of the similarly situated employees. 15. On the other hand, learned counsel for respondent no.2 to 5 has submitted that the claim of the petitioner is barred by limitation as he has challenged the impugned order after four years from the date of its pronouncement. He has further submitted that the order dated 19.09.2015 was passed against the petitioner prior to his retirement i.e. on 02.02.2016. Therefore, the Department committed no error in passing the impugned order prior to his retirement. He has further submitted that the case as cited by the learned counsel for the petitioner would not be applicable for the reason that the Department had passed the order on 02.02.2016, by which, petitioner was asked to deposit the amount prior to his retirement. 16. It has further been submitted on behalf of the corporation that the Government's decision contained in Government letter dated 08.09.2015 was taken during the service period of petitioner but he did not raise any objection against the same or against the answering corporation. In consequential order contained in the office memo bearing no.2385 dated 19.09.2015, the State Government, considering the new proposal of the corporation, accorded sanction vide Government Order bearing no.176/2016/1714/ 16–27-si- 9–01pc1/12 dated 20.10.2016 to allow the benefits of the higher pay- scale of ?93,00-34800 grade pay 4200/- to the junior engineers of the answering corporation from the current date of the issuance of the order. The petitioner has not challenged the office memo dated 02.02.2016 and made representation for determination of his pay, theirupon the respondent no.2, considering the petitioner's request, issued office memo dated 20.02.2016, by which, the office order dated 02.02.2016 was kept in abeyance. The petitioner's pay fixation was considered and vide impugned order dated 05.02.2018, the fixation was reconsidered and the order dated 05.02.02018 was passed. 17. Learned counsel for the corporation has cited the judgement of the Hon'ble Apex Court in the case of Uttar Pradesh and Others versus Arvind Kumar Srivastava and Others reported in (2015) 1 SCC 347. The petitioner's pay fixation was considered and vide impugned order dated 05.02.2018, the fixation was reconsidered and the order dated 05.02.02018 was passed. 17. Learned counsel for the corporation has cited the judgement of the Hon'ble Apex Court in the case of Uttar Pradesh and Others versus Arvind Kumar Srivastava and Others reported in (2015) 1 SCC 347. He has placed reliance on paragraph no.33 of the said judgement which is reproduced as under: "[33] The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under: (1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This Principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. (2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. (3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. (3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India. On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence." 18. It has been submitted on behalf of the corporation that normal rule is that when a particular set of employees is given the relief by the court, all other identically situated persons/employees need to be treated alike by extending the same benefits. However, this principle is subject to well recognized institution in the form of laches and delays as well as acquiescence. He has submitted that the petitioner did not raise his grievance earlier and after a long delay, he cannot claim the benefit of the judgement rendered to the similarly situated employees. 19. In response to the aforesaid submission, regarding delay and laches, it has further been submitted by Shri Vika Vikram Singh, learned counsel for the petitioner that the question of limitation will not arise in the present case for the reason that it is the case of recovery of payment made to the petitioner which was fixed by the Department in pursuance of the Government policy. In view of the law laid down by the Hon'ble Apex Court in cases of M.R. Gupta Vs. Union of India and Ors. (supra) and Union of India Vs. Tarsem Singh (supra) . In view of the law laid down by the Hon'ble Apex Court in cases of M.R. Gupta Vs. Union of India and Ors. (supra) and Union of India Vs. Tarsem Singh (supra) . The Hon'ble Apex Court has categorically held that the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply and there is continuous cause of action. 20. The Hon'ble Apex Court in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and Ors. reported in (2015) 4 SCC 334 has enunciated the principle of recovery against the employees. Relevant paragraph of the aforesaid judgement is reproduced as under: "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. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of (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 b 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." 21. A bare perusal of the para-18 of the aforesaid judgement reveals that the recovery from the retired employees, who are about to retire within one year from the order of recovery, would be impermissible. The case of the petitioner is covered by exception- 23, para 8 of the aforesaid judgment. A bare perusal of the para-18 of the aforesaid judgement reveals that the recovery from the retired employees, who are about to retire within one year from the order of recovery, would be impermissible. The case of the petitioner is covered by exception- 23, para 8 of the aforesaid judgment. In the present case, though the impugned order dated 02.02.2016 (annexure no.2) was issued by the corporation but the said order was stayed by the corporation itself vide order dated 20.02.2016 and, thereafter, the final impugned order dated 05.02.2018 was passed after retirement i.e. on 30.11.2016. However, the case of the petitioner comes within the exception of sub-para no.II and III of the judgement of Rafiq Masih (supra). 22. The record reveals that the order dated 02.02.2016 was stayed by the Managing Director vide letter dated 20.02.2016 and, therefore, the impugned order dated 05.02.2018 was passed, which is admittedly after retirement. Since the Department had stayed the impugned order dated 20.02.2016 and, thereafter, passed the order vide letter dated 05.02.2018, the court has to see, as to whether, the case of the petitioner is at par with the case of the similarly situated employees. 23. Heard learned counsel for the petitioner as well as earned counsel for the State corporation. It is to be note that in para 25 of the counter affidavit, there is no specific denial to the fact that the case of the petitioner is not at par with the cases of similarly situated employees i.e. Ram Murty Singh, Badri Narayan Chaubey, and Sabbir Husan as contained in Annexure No.3 and 4 to the present petition. It has been stated in para 25 that the petitioner was initially allowed the pay-scale admissible to the junior engineer of the answering corporation but the pay-scale was later on given in the anticipation of Government sanction pending in the matter and in the order, it was mentioned that due to any defect/mistake, the excess payment made will be subject to recovery. The law laid down in case of Union of India Vs. Tarsem Singh (supra) is very clear that in matter of fixation of salary, there is continuation of cause of action. The issue of delay and laches will not be applicable. The law laid down in case of Union of India Vs. Tarsem Singh (supra) is very clear that in matter of fixation of salary, there is continuation of cause of action. The issue of delay and laches will not be applicable. Since there is no specific denial that the case of the petitioner is not at par with the employees in whose favour, the orders have been passed vide annexure No.3 and 4 of the writ petition, it cannot be a ground for rejection of the claim of the petitioner. 24. I have gone through carefully the judgement of the Hon'ble Apex Court passed in the case of Arvind Kumar Srivastava (supra) cited by the learned counsel for the State- respondent. The fact is mentioned that in the year 1986, the Chief Medical Officer, Varanasi had advertised the post of head-boys in various newspapers, the respondents in the case had applied for the said post and participated in the selection process. After interview, they were kept in waiting list. Those who were in the select list were offered appointments, some of the candidates who were higher in merit and were offered appointment did not join. Therefore, the candidates in the waiting list were issued appointment letters by the then Chief Medical Officer, Varanasi. However, before the respondents joined their duties, the new Chief Medical Officer, Varanasi resumed charge and blocked their joining. Thereafter, vide order dated 20.02.1987, he cancelled the appointments made by his predecessor. Few candidates who were also aggrieved by the order dated 22.06.1987, approached the Tribunal, challenging the legality, validity and proprietary of the said order on several grounds. The Tribunal decided the case in their favour and the order dated 22.06.1987 was quashed. The writ petition filed before the High Court was also dismissed and, thereafter, SLP was also dismissed on 12.08.1987. The respondents in the aforesaid case, waited for such a long span and when the special leave petition was dismissed in the year 1994, then they filed a petition in 1995 requesting the benefit of identical order. Thus, the fact of the case is not applicable in the present case and so far fixation of pay-scale is concerned, it is continuing cause of action and delay and laches would not come into the play as settled by the Hon'ble Apex Court in the case of M.R. Gupta (supra) and Tarsem Singh (Supra). 25. Thus, the fact of the case is not applicable in the present case and so far fixation of pay-scale is concerned, it is continuing cause of action and delay and laches would not come into the play as settled by the Hon'ble Apex Court in the case of M.R. Gupta (supra) and Tarsem Singh (Supra). 25. Considering the aforesaid facts and circumstances and keeping in view the law laid down by the Hon'ble Apex Court, the argument of the laches will not be applicable in the present case. Thus, it is clear that the case of petitioner is at par with the cases of other similarly situated employees, therefore, the order cannot sustain. 26. In view of the above, the present petition stands allowed and the impugned order dated 05-02-2018 and impugned order dated 02.02.2016 are hereby set side. 27. The respondents are directed to release the amount recovered and withheld from the post retiral dues of the petitioner along with the simple interest of 6% per annum in two months from the date of production of certified copy of this order.