JUDGMENT : SANJAY KUMAR DWIVEDI, J. This matter has been assigned to this Bench by Hon’ble the Chief Justice and that is how this matter is listed before this Court. 2. Heard Mrs. Debolina Sen Hirani, learned counsel for the petitioner, Mr. Prahsant Pallav, learned counsel for the respondent nos. 1 to 4, Mr. Amit Kr. Verma, learned counsel for the respondent no. 5 and Mr. Abhijeet Kr. Singh, learned counsel for the respondent no.6. 3. Prayer in this petition is made for declaration that communication dated 02.06.2020 sent in the form of an email and the letter13.01.2020 both are sequels to the observations of the respondent no.5 vide their impugned report dated 06.02.2015 contained in annxure-22 series and subsequent reports, as arbitrary, illegal, unconstitutional and in violation of Article 14 and 21 of the Constitution of India. Further prayer is made that after such declaration the communications contained in annexure-20, 22 and 23 series may kindly be quashed and further prayer is made to restore the status of the petitioner. 4. Mrs. Debolina Sen Hirani, learned counsel for the petitioner submits that the respondent no.1 is an academic institution that is the creature of legislation being the Indian Institute of Management Act, 2017 which is operated under the aegis of the Ministry of Human Resource Development of the Union of India. She submits that on 12 th May 2010 by a public advertisement in a national newspaper of prominence namely, the Ascent, the Time of India, the authorities of the respondent no.1 notified vacancies for the post of Associate Professor and Assistant Professor in various areas of academics (including the areas of Economics and Public Policy, to which the petitioner applied) in the scale of INR 37400-67000+ Academic Grade Pay of INR 9500 contained in annexure-1. She further submits that the petitioner submitted his application against the aforesaid advertisement and after due scrutiny of his credential followed by a rigorous selection procedure conducted by respondent no.1, his appointment to the post of Assistant Professor at the advertised scale was duly approved by the respondent no.4 in their 3 rd meeting held on 26.02.2011 and the respondent no. 2 duly communicated the same through email dated 08.03.2011 contained in annexure-2 series. 2 duly communicated the same through email dated 08.03.2011 contained in annexure-2 series. She then submits that the petitioner was appointed as an Assistant Professor vide letter dated 08.04.2011 issued by respondent no.2 on the recommendation of the Faculty Selection Committee of the respondent no.1 and after obtaining due approval of the respondent no. 4 at a basic pay of INR 47,792/- (inclusive of one increment) per month and in the scale of INR 37,400- 67000 (PB-4) with AGP INR 9000/- revised (included). By way of referring Annexure-4 she further elaborates her argument by way of submitting that after two years of probation from the date of joining, petitioner’s service was confirmed by respondent no.2 by appointment letter dated 08.04.2011. In this background she submits that earlier the petitioner was engaged in service as a faculty of Associate Professor since October, 2009 and in the pay scale of INR 31980-875- 38980-EB-875-45980 amounting to a gross salary of INR 80,156/- as of April 2011. She submits that in the light of said advertisement the petitioner applied and joined the post and he was being paid regularly and all of a sudden, the petitioner received email dated 31.01.2018 whereby the petitioner was asked to reply as to why recovery should not be made on the ground that appointment was made irregular. She submits that reply was made by the petitioner denying the facts that stating that he had been appointed on the basis of advertisement and nothing has been hidden by the petitioner. She then submits that after several communication salary of the petitioner was re-fixed as INR 143,600 instead of INR 1,52,300/- and HRA arrears was also stopped. She submits that thereafter impugned order dated 13.01.2020 whereby a direction has been issued to recover a sum of Rs. 20,68,840/- covering a period from 20.06.2011 to 28.02.2019 i.e a period of close to eight years. In this background learned counsel for the petitioner submits that the Institute issued the advertisement pursuant to that the petitioner has applied and on a vigorous scrutiny the petitioner was appointed by a Board of Governors which was headed by high ranking officers. She further submits that the petitioner by way of last resort has filed representation on 29.05.2020 however nothing was done on that representation. She submits that nothing was hidden by the petitioner. She further submits that the petitioner by way of last resort has filed representation on 29.05.2020 however nothing was done on that representation. She submits that nothing was hidden by the petitioner. On this ground she submits that recovery and reducing the scale of the petitioner is bad in law. She submits that advertisement was there pursuant to that the petitioner has applied. By way of referring supplementary affidavit, she submits that petitioner filed application under Right to Information Act for taking further information from the respondent no. 5 on 12.06.2020 as stated in para 39 of the main petition. The petitioner received reply on 21.07.2020 wherein it is stated that in compelling instance of the arbitrariness which is not only manifest, but also a glaring instance of the anathematic, wednesbury unreasonableness. By way of referring to documents received under Right to Information Act, she submits that following emerges:- “ (a) That the observations by the Respondent No. 5 on wrongful pay fixation the Petitioner’s case has been made without referring to the appropriate/applicable documents. (b) That concerned authorities of the Respondent No. 1 have not shared vital documents with the Respondent No. 5 viz., the correct advertisement, observations of the Faculty Selection Committee on position and pay recommendations including justifications therein, approval notes and documents of the Board of Governors of the Respondent No. 1, the original note on pay-fixation, so as to facilitate a fair conclusion by the Respondent No. 5 regarding the applicability of wrongful pay-fixation in the case of the Petitioner. (c) That the documents shared by the concerned authorities of the Respondent No. I with the Respondent No. 5 are incorrect and the advertisement shared with was not the one against which the Petitioner’s was led to apply and was finally recruited. (d) That the calculations on the amount of the recovery was not done by the Respondent No. 5, but by the Accounts Department of Respondent No.1. (e).That the concerned authorities of the Respondent No.1 did not formally submit any legal opinion to the Respondent No. 5 relating to wrongful pay fixation of its faculty members, on the basis which the authorities of the former had been claiming as being the basis on which observations against some faculty members that appear in the first Audit report dated 02.06.2015, were dropped.” 5. She relied in the case of “State of Punjab & Others” Vs. She relied in the case of “State of Punjab & Others” Vs. Rafiq Masih (Whitewasher)” reported in (2015) 4 SCC 334 . She refers to para 18 of the said judgement and by way of referring the said judgment she submits that the impugned order of recovery has been issued after eight years in view of that the case of the petitioner is fully covered in the light of direction of the Hon’ble Supreme Court laid down in para 18 (III), 18 (IV) and 18 (V). She further relied in the case of “Thomas Daniel Vs. State of Kerala and others” reported in (2022 SCC Online SC 536 wherein para 9 it has been held as under:- “9. This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or If such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.” 6. She submits that case of Rafiq Masih(supra) was considered in that case and on the same line the impugned order was quashed by the Delhi High Court. She further relied in the case of “ Mr. Sanjay Kumar Vs. Hans Raj College and Another” passed in W.P.(C) 9265/2019 & CM APPL. 38194/2019. Learned counsel for the petitioner further relied in the case of “ Dr. HS Shivaprakash Vs. Jawaharlal Nehru University” reported in 2023 SCC Online Del 8403 of the Delhi High Court. She further relied in the case of “ Mr. Sanjay Kumar Vs. Hans Raj College and Another” passed in W.P.(C) 9265/2019 & CM APPL. 38194/2019. Learned counsel for the petitioner further relied in the case of “ Dr. HS Shivaprakash Vs. Jawaharlal Nehru University” reported in 2023 SCC Online Del 8403 of the Delhi High Court. On these grounds, she submits that the impugned orders may kindly be quashed and status of the petitioner may kindly be restored and the deducted amount may kindly be released in favour of the petitioner. 7. Mr. Prashant Pallav, learned counsel for the respondent nos. 1 to 4 submits that the post named as “Lecturer-cum- Post Doctoral Fellows” in Circular dated 18 th of August, 2009 which was later on the designated as “ Assistant Professor, to be recruited on contractual basis. He submits that it was clearly mentioned in the said circular that lecturers which post was later designated as Assistant Professor to be recruited on contractual basis, weren’t not part of the regular faculty cadre in the Institutes. The whole purpose of creating such a post was to enable bright young PhDs to teach and earn experience in premier institutions. He submits that said circular clearly stipulates that at the entry level they were to be placed in the pay band PB-3 of Rs. 15,600/- -39,100 with Academic Grade Pay (AGP) of Rs. 6,000/- with 7 non compounded advance increments. It is only after one year of post-PhD experience, the said Assistant Professors, to be recruited on contractual basis were to be placed in the AGP of Rs. 7000 per month. 8. Learned counsel for the respondent nos. 1 to 4 further submits that applying the aforesaid rule in the case of the petitioner, the petitioner had no experience prior to his PhD. The only experience he had was after PhD and at the time of his appointment, his total experience was 1.8 years. Therefore according to the said Circular dated 18th of August 2009 as amended by Circular dated 16th of September 2009, the Petitioner could have only been appointed in the Pay Band PB-3 of Rs. 15,600 - 39,100 with AGP of Rs. 7000 per month. However, instead of being appointed as "Assistant Professor, to be recruited on contractual basis", in the Pay Band of Rs. 15,600 -39,100 with AGP of Rs. 15,600 - 39,100 with AGP of Rs. 7000 per month. However, instead of being appointed as "Assistant Professor, to be recruited on contractual basis", in the Pay Band of Rs. 15,600 -39,100 with AGP of Rs. 7000 per month, the petitioner was appointed as Assistant Professor. He further submits that even if he was appointed as Assistant Professor, which required minimum experience of 3 years, he could have at best be placed in the Pay Band 3 with AGP of Rs. 8,000 per month. However, the Petitioner was given the pay scale of PB-4 of Rs. 37,400-67,000 with AGP of Rs. 9000. 9. Learned counsel for the respondent nos. 1 to 4 further submits that the petitioner has continuously harped on the advertisement dated 12.05.2010 and in this regard rule has not been placed by the petitioner. By way of referring advertisement dated 18.08.2009 contained in annexure-7 series, he submits that above pay-scale is described therein and at the entry level they may be placed in pay band PB-3 of Rs. 15600-39100 with Academic Grade Pay (AGP) of Rs. 6000/- p.m. with seven non compounded advance increments and in view of that now the petitioner’s pay-scale has been refixed as PB-3 of Rs. 15600-39100 with Academic Grade Pay of Rs. 7,000/- per month as one year has been has been added as post Ph.D experience and it was wrongly fixed in view of that recovery has been made and concession is also provided to recover the same in instalment. 10. Learned counsel for the respondent nos. 1 to 4 also relied in the case of “State of Punjab & Others” Vs. Rafiq Masih (Whitewasher)” and submits that in the light of para 18 (iii) of the judgment, as the petitioner joined his service with the respondent on 20.06.2011 and the recovery of excess payment was initiated by respondent March, 2019 based on wrong fixation in audit report. He submits that there is no illegality in the impugned order. He further relied in the case of “ESI Corporation Vs. Union of India” reported in (2022) 11 SCC 392 . He refers to 20 and 21 of the said judgment which is quoted hereinbelow:- “20. The advertisements issued by the appellant mentioned that the DACP scheme would be applicable for its recruits. He further relied in the case of “ESI Corporation Vs. Union of India” reported in (2022) 11 SCC 392 . He refers to 20 and 21 of the said judgment which is quoted hereinbelow:- “20. The advertisements issued by the appellant mentioned that the DACP scheme would be applicable for its recruits. However, it is a settled principle of service jurisprudence that in the event of a conflict between a statement in an advertisement and service regulations, the latter shall prevail. In Malik Mazhar Sultan v. U.P. Public Service Commission [Malik Mazhar Sultan v. U.P. Public Service Commission, (2006) 9 SCC 507 : 2006 SCC (L&S) 1870] ("Malik Mazhar Sultan") a two-Judge Bench of this Court clarified that an erroneous advertisement would not create a right in favour of applicants who act on such representation. The Court considered the eligibility criteria for the post of Civil Judge (Junior Division) under the U.P. Judicial Service Rules, 2001 against an erroneous advertisement issued by the U.P. Public Service Commission and held: (SCC p. 512, para 21) "21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1-7-2001 and 1-7-2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules." 21. In Ashish Kumar v. State of U.P. [Ashish Kumar v. State of U.P., (2018) 3 SCC 55 : (2018) 1 SCC (L&S) 464] a two-Judge Bench of this Court followed the decision in Malik Mazhar Sultan [Malik Mazhar Sultan v. U.P. Public Service Commission, (2006) 9 SCC 507 : 2006 SCC (L&S) 1870] in interpreting an advertisement issued by the Director, Social Welfare Department, Uttar Pradesh for the position of a psychologist. This Court declined to give precedence to the erroneous qualifications prescribed in the advertisement against the relevant recruitment rules and held: (Ashish Kumar case [Ashish Kumar v. State of U.P., (2018) 3 SCC 55 , para 27: (2018) 1 SCC (L&S) 464], SCC p. 64, para 27) "27. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, the appellant fulfils the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is the statutory rules which take precedence." 11. Relying on the above judgment he submits that there is conflict in the advertisement during that period that is the ratio of the above judgment. He submits that in that judgment two cases have been considered “ Malik Mazhar Sultan V. U.P. Public Service Commission (2006) 9 SCC 507 and “ Ashish Kumar Vs. State of U.P. (2018) 3 SCC 55 . Relying on the said judgment he submits that there is no illegality in the impugned order in view of that this writ petition may kindly be dismissed. 12. Learned counsel for the Accountant General submits that since it has come in the knowledge of the Accountant General that there is anomaly in fixation of the pay-scale of the petitioner that is why the Accountant General has pointed out and in view of that the impugned order has been passed however, the said order has been passed after eight years. 13. In the light of above submissions of the learned counsel for the parties, the Court has gone through the materials on record including the annexures contained in the writ petition as well as in the counter-affidavit filed by the respondents. It is an admitted position that a public advertisement was issued on 12 th May 2010 in a national newspaper for the post in question contained in anneuxre-1. Pursuant to that the petitioner applied for the post of Assistant Professor and the appointment of the petitioner was approved and the same was communicated by the letter dated 08.04.2011 contained in Annexure-2. Thereafter by letter dated 02.05.2013 the petitioner’s service was confirmed from the date of his appointment contained in annexure-4. Pursuant to that the petitioner applied for the post of Assistant Professor and the appointment of the petitioner was approved and the same was communicated by the letter dated 08.04.2011 contained in Annexure-2. Thereafter by letter dated 02.05.2013 the petitioner’s service was confirmed from the date of his appointment contained in annexure-4. By annexure 5 series the copies of pay slip and certificate of employment for Associate Professor was issued by the Goa Institute of Management. Annual report of the petitioner is contained in annexure-6 for the period 2014-2015 and 2015-2016 wherefrom it transpires that the petitioner has discharged service on higher posts such as Chairperson of the flagship Post Graduate Programme and thereafter, the communication has been made with regard to recovery by the email contained in annexure 7 series and pay-scale of the petitioner has been refixed by annexure 13 series and thereafter recovery order has been passed contained in annexure 20 dated 13.01.2020. 14. What has been emerged from the facts, it is clear that pursuant to advertisement petitioner has applied and pay was fixed and the petitioner was being paid. It is an admitted position that after eight years of fixation, the said recovery was made. In the light of direction made in para 18 (iii), (iv) and (v) in the case of Rafiq Masih (supra) the case of the petitioner is fully covered. It is an admitted position that impugned order has been issued after eight years, thus, the case of the petitioner is coming within the direction of 18(iii) of Rafiq Masih (supra). The petitioner has been further allowed to discharge duty on higher posts in the light of 18(iv) of the said case is further helping the petitioner. If such a situation is there certainly direction in 18(v) will come in favour of the petitioner with regard to the hardships. 15. In view of Rafiq Masih (supra) the guidelines which have been laid in para 18(iii), (iv) and (v) that can be made applicable to the employees other than class III and IV to. In this regard one read sub-para (iii) of para 18, it is crystal clear that the Hon’ble Supreme Court has stipulated the time period in which the money could not be recovered from the employee. The said stipulation was a period in excess of 5 years from the date of the order of the recovery. In this regard one read sub-para (iii) of para 18, it is crystal clear that the Hon’ble Supreme Court has stipulated the time period in which the money could not be recovered from the employee. The said stipulation was a period in excess of 5 years from the date of the order of the recovery. Admittedly, after eight years, the impugned order has been passed. In view of that recovery is not sustainable in view of the fact that nothing has been hidden by the petitioner and in view of advertisement of the management the petitioner has applied. 16. Thus, the impugned order contained in Annexure-20 dated 13.01.2020 is hereby quashed. The respondent nos. 1 to 4 are directed to refund the amount which has already been deducted w.e.f March, 2019 onwards from the petitioner within a period of six weeks from the date of receipt/production of a copy of this order. 17. So far the re-fixation of pay is concerned, at page 83 of the writ petition pay scale has been explained as under:- Lecturers:- (1) Lecturers are not part of the regular faculty cadre in these Institutes. Appointment at this level may be made as Lecturer-cum-Post Doctoral Fellow on contract basis to enable bright young Ph.Ds to teach and earn experience in premier institutions, (2) At the the entry level they may be placed in Pay Band PB-3 of Rs.15600-39100 with 1 Academic Grade Pay (AGP) of Rs.6000/-p.m. with seven non-com advance increments. (3) To encourage fresh PhDs to join the teaching system, at least 10% of the total faculty strength should be recruited at this level of Lecturer-cum- Post Doctoral Fellow. However, relaxation in respect of educational qualifications could be given up to 25% of total Lecturers recruited. The reasons for such relaxations should be duly recorded and reported to the Board of Governors of the respective institutions. (4) After one year of post Ph.D experience, these Lecturers-cum-Post Doctoral Fellows shall be placed in the AGP of Rs.7000/-p.m. Assistant Professors:- (1)To be appointed in PB-3 with AGP of Rs. 8000/-p.m. For direct recruits, minimum pay in the Pay Band to be fixed at Rs.30000/- (2)For appointment as Assistant Professor, one should have a Ph.D with first class or equivalent in the appropriate branch with a very good academic record throughout and at least three years’ industrial/research/teaching experience, excluding however, the experience gained pursuing Ph.D.” 18. 8000/-p.m. For direct recruits, minimum pay in the Pay Band to be fixed at Rs.30000/- (2)For appointment as Assistant Professor, one should have a Ph.D with first class or equivalent in the appropriate branch with a very good academic record throughout and at least three years’ industrial/research/teaching experience, excluding however, the experience gained pursuing Ph.D.” 18. In view of the above so far scale is concerned, the Court finds force in the argument of learned counsel for the respondent nos. 1 to 4. In view of the judgment of the Hon’ble Supreme Court in the case of ESI Corporation (supra) on which the reliance has been placed by the learned counsel for the respondent nos. 1 to 4 is settled that if the contradictory advertisement is made then rule will prevail. As such this Court is not interfering with the re-fixation of the pay-scale of the petitioner. 19. This writ petition is allowed in above terms and disposed of. Pending I.A, if any, stands disposed of.