JUDGMENT : Abdul Moin, J. 1. Heard Shri Sanjay Kumar Srivastava, Shri Jitendra Singh and Ms. Savita Jain, learned counsels for the petitioners, learned Standing Counsel for the State respondents, Shri Rishabh Kapoor, Shri Madhav Om, Advocate holding brief of Shri Samir Om and Shri Ankit Singh, learned counsels appearing on behalf of the Jal Nigam. 2. Learned counsels appearing on behalf of the contesting parties contend that the issue involved in all the aforesaid writ petitions is same. As such, the Court proceeds to hear and decide all the writ petitions together by a common order. For the sake of convenience, the facts of WRIT - A No. - 17904 of 2020 are being taken into consideration. 3. Instant writ petition (WRIT - A No. - 17904 of 2020) has been filed praying for the following main reliefs:- "(I) Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 18.08.2020 passed by the Opposite Parties No. 1 & 2 contained as Annexure No. 1 to the writ petition. (II) Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 20.08.2020 passed by the Opposite Party No. 4 contained as Annexure No. 2 to the writ petition. (III) Issue writ, order or direction in the nature of mandamus commanding the Opposite Parties not to give effect of the impugned orders dated 18.08.2020 and 20.08.2020 passed by the Opposite Parties No. 1, 2 & 4 contained as Annexure No. 1, 2 & 4 to the writ petition. (IV) Issue writ, order or direction in the nature of mandamus commanding the Opposite Parties to continue to make payment of salary and other service benefits regularly every month including future post-retiral dues and pension as and when it becomes due ignoring the imugned orders to the petitioners No. 1 to 227 and 2870. (V) Issue writ, order or direction in the nature of mandamus commanding the Opposite Parties to continue to make paymet of pension/family pension along will all other post- retiral dues as and when it becomes due to the petitioners no. 2272 to 2869 ignoring the impugned orders." 4. (V) Issue writ, order or direction in the nature of mandamus commanding the Opposite Parties to continue to make paymet of pension/family pension along will all other post- retiral dues as and when it becomes due to the petitioners no. 2272 to 2869 ignoring the impugned orders." 4. As per the learned counsels appearing on behalf of the contesting parties, the petitioners of the instant writ petition and other connected writ petitions can be divided into three categories namely:- (A) the petitioners who have retired prior to passing of the impugned orders dated 18.08.2020 & 20.08.2020 and have received their retiral dues and are in receipt of pension. (B) the petitioners who have retired from service on attaining the age of superannuation during pendency of the instant writ petition and (C) the petitioners who are in service. 5. Bereft of unnecessary details, the facts of the case are that all the petitioners, were initially appointed on daily wages basis/muster roll/work charge basis in the Uttar Pradesh Jal Nigam (In short "Nigam") and were continuing to work in the same capacity when in pursuance to the Government order dated 12.04.2011, a copy of which is annexure 15 to the writ petition, which directed for regularization of the services of the persons like the petitioners with immediate effect, were regularized vide order dated 26.04.2011 issued by the Nigam, a copy of which is annexure 16 to the writ petition. In pursuance to the order dated 26.04.2011, the pay of the petitioners were fixed w.e.f completion of five years of continuous service after their appointment as specified in paragraph 6 of the order dated 26.04.2011 but were not granted any arrears on account of the said fixation up to 11.04.2011. 6. It is contended by the learned counsel appearing on behalf of the contesting parties that at the time of filing of the writ petitions, the Nigam was one unit but subsequent thereto, it has been bifurcated into Uttar Pradesh Jal Nigam Urban and Uttar Pradesh Jal Nigam Rural. However, it is stated by the learned counsel for the contesting parties that the said bifurcation would not make any difference to the orders impugned. 7. However, it is stated by the learned counsel for the contesting parties that the said bifurcation would not make any difference to the orders impugned. 7. Subsequent to the said orders and prior to passing of the orders impugned dated 18.08.2020 & 20.08.2020, various petitioners retired and received gratuity and other retiral dues and are in receipt of pension on the basis of the said regularization orders which were passed with retrospective efffect. 8. It is contended that the subsequent to the order dated 26.04.2011, a letter dated 12.02.2020, copy of which is annexure 17 to the writ petition was sent by the Nigam to the State Government seeking clarification as to whether those persons who have been regularized w.e.f a previous date, whether they should be given the service benefits/retiral benefits on the basis of the regularization with retrospective effect or by treating the date of regularization as 12.04.2011. Various letters were also earlier sent by the Nigam in this regard to the State Government. 9. The State Government thereafter issued the order impugned dated 18.08.2020,a copy of which is annexure 1 to the writ petition directing that (a) regularization orders w.e.f.04.1991/01.04.1992/.01.04.1993/01.04.1994/01.04.199 5 are erroneous and should be cancelled (b) the benefits which have been given with effect from 01.04.1991/01.04.1992/.01.04.1993/01.04.1994/01.04.1995 upto 26.04.2011 i.e annual increments, time scale of pay, ACP etc have erroneously been granted and the same should be rectified by considering the date of regularization as 26.04.2011 and the excess amount paid should be recovered and action should be taken against the guilty officials and (c) as the regularization had to be done with immediate effect i.e in terms of the order dated 26.04.2011 and new pension scheme having come into force w.e.f 01.04.2005 as such, none of the persons would be entitled for the benefit of the old pension scheme. 10. In pursuance thereof, the consequential order impugned dated 20.08.2020, a copy of which is annexure 2 to the writ petition was passed by Nigam reiterating the order dated 18.08.2020 and taking away the service benefits accrued to the petitioners on account of the regularization prior to 26.04.2011, treating the petitioners as regularized w.e.f 26.04.2011 and for treating such regular person as covered by New Pension Scheme. 11. Being aggrieved by the orders impugned dated 18.08.2020 & 20.08.2020, the instant writ petition has been filed. 12. 11. Being aggrieved by the orders impugned dated 18.08.2020 & 20.08.2020, the instant writ petition has been filed. 12. The grounds taken by the learned counsel for the petitioners seeking to challenge the order impugned dated 18.08.2020 are that as vested rights have accrued to the petitioners on account of the retrospective regularization in terms of the order dated 26.04.2011 that had been issued by the Nigam and which was cancelled without affording any opportunity of hearing consequently, the said order is in gross violation of the rules of natural justice and as such, merits to be quashed on this ground alone. 13. Another ground which has been taken by the learned counsels for the petitioners is that the petitioners have already received the higher pay and other attendant benefits on account of the order dated 26.0.2011 and they being Class-IV employees as such, keeping in view the law laid down by the Apex Court in the case of State Of Punjab & Ors vs Rafiq Masih (White Washer)- (2015) 4 SCC 334 the said monetary benefits cannot be recovered from them.. 14. Yet another ground which has been taken by the learned counsel for the petitioners is that once a large number of petitioners had retired prior to passing of the impugned orders dated 18.08.2020 & 20.08.2020 and have also received the pension and other retiral benefits consequently, the same cannot be taken away retrospectively by means of the orders impugned. 15. Responding, Sri Rishabh Kapoor, Sri Samir Om and Sri Ankit Singh, learned counsels appearing on behalf of the contesting parties have argued that admittedly all the petitioners were working on daily wages basis/muster roll/work charge basis in the Nigam. An order dated 12.04.2011 was issued by the State Government for regularizing persons like the petitioners with immediate effect. By means of the said Government order, posts were also created on which the eligible persons were to be regularized. 16. In pursuance thereof, the Nigam passed an order dated 26.04.2011 whereby the services of the petitioners were regularized with effect from the issuance of the Government order dated 12.04.2011. By means of the said Government order, posts were also created on which the eligible persons were to be regularized. 16. In pursuance thereof, the Nigam passed an order dated 26.04.2011 whereby the services of the petitioners were regularized with effect from the issuance of the Government order dated 12.04.2011. For the purpose of their pay fixation alone, it was provided that they would be entitled for benefits at par with those persons who had been regularized previously after completion of five years of continuance in service with effect from the date of their appointment but no arrears for the said period up to 11.04.2011 would be payable. Thus, by means of the order dated 26.04.2011, the pay fixation of the petitioners was also done. 17. It is contended that when the fault of fixation of pay and other benefits retrospectively was discovered, the State Government issued the Government order dated 18.08.2020 by which the fault committed by the Nigam was indicated and it was directed to cancel the regularizations which have been made w.e.f 01.04.1991, 01.04.1992, 01.04.1993, 01.04.1994 & 01.04.1995; to recover the benefits of annual increment, time scale of pay etc. which was erroneously granted on the basis of treating the regularization with retrospective effect and that the regularization of the persons should only be treated w.e.f 26.04.2011 and consequently, the said persons would only be entitled for the benefit of the new pension scheme. On the basis of the same, the Nigam also issued the order impugned dated 20.08.2020. 18. The argument of Sri Kapoor is that when the Government order dated 12.04.2011 itself indicated that the regularization was to be made with immediate effect and in pursuance thereof, the Nigam issued the order dated 26.04.2011 categorically specifying that the regularization of the petitioners was being done with effect from the date of issuance of the Government order dated 12.04.2011 consequently, any benefit of pay fixation etc. which has been given with retrospective effect erroneously to the petitioners is clearly impermissible in the eyes of law. 19. which has been given with retrospective effect erroneously to the petitioners is clearly impermissible in the eyes of law. 19. Further argument is that the petitioners have not challenged either the Government order dated 12.04.2011 wherein the services of the petitioners were directed to be regularized with immediate effect as well as the order dated 26.04.2011 passed by the Nigam which has regularized their services w.e.f 12.04.2011 and thus having acquiesced to the said orders, they cannot be permitted to challenge the orders impugned. 20. The other argument of Sri Kapoor is that considering Section 8 9 read with Section 8 of the Uttar Pradesh Water Supply and Sewerage Act, 1975 (hereinafter referred to as "Act, 1975"), the Nigam is guided by directions on question of policy as may be given to it by the State Government and further even the appointment of the petitioners, as has been done in the instant case, would be governed by Section 8 of the Act, 1975 which categorically provides that the appointment of the employees has to be done as per the general or special order determining the terms and conditions with the approval of the State Government. 21. Sri Kapoor also argues that considering the fact that the Government order had only directed for regularization of the petitioners w.e.f 12.04.2011 consequently, any benefit which has been given to the petitioners erroneously and on account of an erroneous interpretation of the Government order dated 12.04.2011 by the Nigam as finds place in paragraph 6 of the order dated 26.04.2011 as issued by the Nigam would not vest any right to the petitioners, the same being erroneous and against the provisions of the Act, 1975. 22. Heard learned counsel appearing on behalf of the contesting parties and perused the records. 23. From the arguments as raised by the learned counsel appearing on behalf of the contesting parties and perusal of records it emerges that the petitioners were initially appointed on daily wages basis/muster roll/work charge basis in the Nigam and were continuing to work in the same capacity. The Government order dated 12.04.2011 was issued directing for regularization of the services of the persons like the petitioners with immediate effect. For the purpose of the regularization, various posts were also created. The Government order dated 12.04.2011 was issued directing for regularization of the services of the persons like the petitioners with immediate effect. For the purpose of the regularization, various posts were also created. In pursuance thereof, the Nigam passed the order dated 26.04.2011 regularizing the petitioners in service w.e.f the date of issuance of the said Government order i.e 12.04.2011. However, in paragraph 6 of the order dated 26.04.2011, despite the Government order dated 12.04.2011 not providing so, the Nigam on its own accord indicated that only for the purpose of pay fixation, the petitioners would be entitled for counting of their service after five years of continuous service of their initial appointment i.e w.e.f 01.04.1991, 01.04.1992, 01.04.1993, 01.04.1994 & 01.04.1995. It was also provided that the pay fixation of the petitioners would be done but no arrears would be admissible to them for the aforesaid period till 11.04.2011. 24. In pursuance thereof, the pay fixation of the petitioners were done. 25. When the fault was discovered by the Nigam of having passed an order which was contrary to the Government order dated 12.04.2011 which had only directed for regularization of the petitioners with immediate effect from the date of the issuance of the aforesaid Government order consequently, the Nigam sent various letters including a letter dated 12.02.2020 seeking a clarification as to whether the benefits that have been given to the petitioners by treating their regularization with retrospective effect, can be said to be valid or that the petitioners would be entitled for the benefits w.e.f the date of their regularization i.e 12.04.2011. 26. The same has resulted into the Government order/impugned order dated 18.08.2020 being passed by the State Government directing that all the regularizations that have been done w.e.f 01.04.1991, 01.04.1992, 01.04.1993, 01.04.1994 & 01.04.1995 are wrong and should be cancelled; any payment/pay fixation, increments, time scale of pay etc. which has been given w.e.f the aforesaid dates of 1991 to 1995 are erroneous and the said pay fixation should be modified by treating the persons regularized w.e.f 26.04.2011 and that the excess amount paid to the persons be recovered and an appropriate department action be taken against the guilty officials and that as the petitioners have been regularized vide order dated 26.04.2011 consequently, they would be entitled only for the New Pension Scheme which has come into force w.e.f 01.04.2005. 27. 27. In pursuance thereof, the Nigam passed the order impugned dated 20.08.2020 reiterating the said order and withdrawing the benefits that had been given to the petitioners pertaining to pay fixation etc and hence the petitions. 28. Various grounds have been taken by the learned counsel for the petitioners for challenging the orders impugned dated 18.08.2020 & 20.08.2020 including the ground that the vested rights which accrued to the petitioners prior to passing of the orders impugned could not be withdrawn; no opportunity of hearing having been accorded to the petitioners prior to passing of the orders impugned and keeping in view the law laid down by the Apex Court in the case of Rafiq Masih (White Washer) (supra) no recovery can be made from the petitioners for the excess amount that has been received by them as they are all Class-IV employees. 29. The aforesaid grounds though attractive on the face of record are found to be patently misconceived. 30. The reason is that a perusal of the order dated 12.04.2011 as passed by the State Government itself indicates that the petitioners were to be regularized with immediate effect. The Nigam on its own accord and erroneously interpreting the order dated 12.04.2011 regularized the petitioners with retrospective effect and also granted them pay fixation which could not have validly been done considering the provisions of Section 8 and 89 of the Act, 1975 which read as under:- "8. Appointment of employees. (1) Subject to the provision of sub-section (2), the Nigam may appoint such employees as it considers necessary on such terms and conditions as it thinks fit for the efficient performance of its functions: Provided that the appointment of such employees as the State Government may, by general or special order specify, shall be made in their terms and conditions shall be determined with the approval of the State Government. 2) The Nigam may, with the previous approval of the State Government, appoint a servant of the Central Government or the State Government as an employee of the Nigam on such terms and conditions as it thinks fit. 89. Directions to the Nigam on questions of policy. (1)In the discharge of its functions, the Nigam shall be guided by such directions on questions of policy as may be given to it by the State Government. 89. Directions to the Nigam on questions of policy. (1)In the discharge of its functions, the Nigam shall be guided by such directions on questions of policy as may be given to it by the State Government. (2)If any question arises whether any matter is or is not a matter as respects which the State Government may issue a direction under sub-section (1), the decision of the State Government shall be final." 31. A perusal of Section 8 of the Act, 1975 indicates that the Nigam may appoint such employees as it considers necessary. The proviso to sub Section (1) of Section 8 of the Act, 1975 provides that the appointment of such employees as the State Government may, by a general or special order order specify, shall be made on the terms and conditions as determined with the approval of the State Government. 32. Likewise, Section 89 of the Act, 1975 categorically provides that in the discharge of its functions, the Nigam shall be guided by such directions on questions of policy, as given to it by the State Government. 33. When Sections 8 & 89 of the Act, 1975 are read, they clearly provide that the appointments of the employees and the terms and conditions are to be determined with the approval of the State Government and that in the discharge of its function, the Nigam shall be guided by the directions on question of policy as given by the State Government. 34. When the State Government took a conscious decision of regularizing the persons working in the Nigam and their regularization was only with immediate effect vide order dated 12.04.2011 consequently, the Nigam was bound by the directions that had been issued by the State Government and could not have proceeded beyond the said order i.e beyond regularizing the employees like the petitioners with effect from the date of the Government order dated 12.04.2011 and could not have granted any benefits retrospectively including the benefits of pay fixation etc. Thus, in case the Nigam on its own accord gave certain benefits to the petitioners which were erroneous and beyond the Government order dated 12.04.2011 consequently, considering the provisions of the Act, 1975 and the Government order dated 12.04.2011, no vested right accrued to the petitioners to claim benefit of the same and thus no error has been committed by the State Government and the Nigam while passing the orders impugned of withdrawing the benefits as had erroneously been given to the petitioners by treating their regularization retrospectively. 35. So far as the ground that no opportunity of hearing had been accorded to the petitioners prior to passing of the orders impugned, it is settled proposition of law that natural justice is not an empty formality and in case only one view is possible then there would not be any requirement of giving an opportunity of hearing. 36. The Court has itself considered as to whether any other view was possible to be taken in the matter and as to whether in case any opportunity would have been accorded to the petitioners, could a different view be possible ? 37. Considering the provisions of the Act, 1975 and the Government order dated 12.04.2011 it is apparent that it is the Nigam which has erred in passing an order of retrospective regularization and there being no other view consequently, even if an opportunity of hearing had been given to the petitioners, the same per se would not have resulted in any other orders than what have been passed by the respondents. 38. In this regard, the Court may refer to the judgment of the Apex Court in the case of S.L.Kapoor Vs. Jagmohan and ors-MANU/SC/0036/1980 wherein the Apex Court has held as under:- "17. Linked with this question is the question whether the failure to observe natural justice does at all matter if the observance of natural justice would have made no difference, the admitted or indisputable facts speaking for themselves. Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the nonobservance of natural justice but because Courts do not issue futile writs . Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the nonobservance of natural justice but because Courts do not issue futile writs . But it will be a pernicious principle to apply in other situations where conclusions are controversial, however, slightly, and penalties are discretionary ." (emphasized by the Court) 39. The said judgment has also been considered subsequently by the Apex Court in the case of Aligarh Muslim University Vs. Mansoor Ali Khan- MANU/SC/0533/2000. 40. As regards, the ground that the petitioners had acquired a vested right to get pension and other retiral dues on the basis of their regularization that was made retrospectively, the said ground may also not detain the Court inasmuch as there cannot be any vested rights against law. Once the Government order itself provided for grant of benefits with immediate effect and the Nigam erred in granting the benefit with retrospective effect as such, the same cannot give any vested rights to the petitioners to claim any benefit on account of their wrong retrospective regularization. Thus, the said ground is also rejected. 41. A relevant aspect of the matter is that the petitioners have acquiesced to the Government order dated 12.04.2011 which provided for regularization with immediate effect. The said order has not been challenged in the instant writ petition meaning thereby that the petitioners are themselves of the view that the regularization, as per Government order dated 12.04.2011 could only have been given with prospective effect and not retrospective effect as has wrongly been done by the Nigam. The said act of not challenging the Government order dated 12.04.2011 would bind the petitioners as well as the Nigam more particularly considering Sections 8 & 89 of the Act, 1975. 42. The said act of not challenging the Government order dated 12.04.2011 would bind the petitioners as well as the Nigam more particularly considering Sections 8 & 89 of the Act, 1975. 42. Having considered the merits of the matter, now the Court proceeds to see as to whether any benefits can be given to the three sets of employees who are before this Court namely (A) the petitioners who have retired prior to passing of the impugned orders dated 18.08.2020 & 20.08.2020 and have received their retiral dues and are in receipt of pension (B) the petitioners who have retired from service on attaining the age of superannuation during pendency of the instant writ petition and (C) the petitioners who are in service. 43. With regard to the employees in category (A) i.e the petitioners who have retired prior to passing of the impugned orders dated 18.08.2020 & 20.08.2020 and have received their retiral dues and are in receipt of pension, as the said petitioners have received pension, gratuity and other benefits even prior to passing of the orders impugned consequently, this Court while exercising extra ordinary jurisdiction under Article 226 of the Constitution of India finds that it would be inequitable that the benefits that have already been given to them should be withdrawn. 44. In this regard, it would be apt to refer of the judgment of the Apex Court in the case of Central Council for Research in Ayurvedic Sciences and Anr Vs. Bikartan Das and ors- (2023) SCC OnLine SC 996 wherein the Apex Court has held as under:- "51. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not." 45. Consequently, exercising the jurisdiction under Article 226 of Constitution of India, the Court restrains the respondents from making any recovery of either pension or gratuity or other benefits that have been given to such petitioners in category (A) i.e those who have retired prior to issuance of the impugned orders dated 18.04.2020 & 20.04.2020 meaning thereby that the said petitioners would continue to draw the pension and other retirement benefits which they were drawing at the time of their retirement with all consequential benefits. This direction would only cover the employees in category of (A) as indicated above. 46. So far as the employees in categories (B) & (C) are concerned i.e (B) the petitioners who have retired from service on attaining the age of superannuation during pendency of the instant writ petition and (C) the petitioners who are in service, the principle of law as laid down by the Apex Court in the case of Rafiq Masih (White Washer) (supra) would be attracted wherein the Apex Court has held as under:- "12. 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). 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." 47. From a perusal of aforesaid judgment, it emerges that recovery from the employees belonging to Class-III & IV service or Group C & D service is clearly impermissible in the eyes of law. Thus, the recovery of excess amount on account of fixation which has been given to the petitioners of categories (B) & (C) shall not be recovered. 48. Keeping in view the aforesaid discussion, the writ petition is partly allowed. The orders impugned dated 18.08.2020 & 20.08.2020, copies of which are annexures 1 & 2 to the writ petition respectively so far as they direct for recovery of the excess amount from the petitioners in categories (B) & (C) are quashed. 49. Consequences to follow. 44. The Court records the assistance of Mr. Mohd. Azam Siddiqui, Research Associate of this Court.