Rajasthan High Court - Jodhpur

State Of Rajasthan vs Brij Bala Pandya ... on 14 March, 2023

Bench: Vinit Kumar Mathur

[2023/RJJD/006660]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 219/2023

1. State Of Rajasthan, Through The Director, Department Of Secondary Education, Bikaner (Raj.).

2. The District Education Officer (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Smt. Nandbala Joshi W/o Shri Hargovind Joshi, R/o Village And Post Kanba Tehsil Bichhiwada, District Dungarpur (Raj.).

----Respondent Connected With S.B. Civil Writ Petition No. 19240/2022

1. State Of Rajasthan, Through The Director, Department Of Secondary Education, Bikaner (Raj.).

2. The District Education Officer, (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Smt Mani Rot W/o Shri Bhagwan Ji Rot, R/o H. No. E/18, Ashok Nagar, Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 19359/2022

1. State Of Rajasthan, Through The Director, Department Of Secondary Education, Bikaner (Raj.).

2. The Disrtict Education Officer, (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Miss Asha Shah D/o Late Shri Hukamlaji Shah, R/o Street No 2 Gokul Dham, New Colon, Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 19495/2022

1. State Of Rajasthan, Through The Director Department Of Secondary Education, Bikaner (Raj.).

2. The District Education Officer (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners Versus

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Smt Urmila Chaubisa W/o Shri Chaitenya Kumar Chaubisa, House No. 8 Ravindra Nath Tagore Colony, Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 19526/2022

1. State Of Rajasthan, Through The Director, Department Of Secondary Education, Bikaner (Raj.).

2. The Distirct Education Officer, (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Smt Lata Dixit W/o Shri Mahesh Vyas, R/o H. No. 5, Bhuvneshwari Colony, Behind S.t. Depot, Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 19666/2022

1. State Of Rajasthan, Through The Director Department Of Secondary Education, Bikaner (Raj.)

2. The District Education Officer, (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.)

----Petitioners Versus Smt Meena Panchal W/o Shri Phool Shankar Panchal, R/o H. No. 135, Subhash Nagar Garden Ke Pass, Naye Hospital Ke Piche, Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 19695/2022

1. State Of Rajasthan, Through The Director Department Of Secondary Education, Bikaner (Raj.)

2. The District Education Officer, (Headquarter) Secondary Education Department Of Education, Dungarpur (Raj.)

----Petitioners Versus Smt Nirmala Trivedi W/o Shri Kanhaiyalal Trivedi, R/o 3/117 Housing Board Colony Near Raj Tent, Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 19696/2022

1. State Of Rajasthan, Through The Director Department Of Secondary Education, Bikaner (Raj.)

2. The District Education Officer (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.)

[2023/RJJD/006660] (3 of 16) [CW-219/2023]

----Petitioners Versus Smt Bhanumati Sharma D/o Shri Jayanti Lal Sharma, R/o Village And Post Malpur, District Gujarat. At Present Village And Post Santhuna, Tehsil Simalwara, District Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 19697/2022

1. State Of Rajasthan, Through The Director Department Of Secondary Education, Bikaner (Raj.)

2. The District Education Officer (Headquarter), Secondary Education Department Of Education, Dungarpur (Raj.)

----Petitioners Versus Kaushlya Bhadari W/o Shri Lalit Bhandari, R/o Plot No 279 Indra Colony Sector 14 Hiran Magri L Block, Udaipur (Raj.).

----Respondent S.B. Civil Writ Petition No. 19698/2022

1. State Of Rajasthan, Through The Director, Department Of Secondary Education, Bikaner (Raj.).

2. The District Education Officer, (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Smt Bhanuprabha Pandaya W/o Shri Vinod Kumar Pandaya, R/o Village And Post Kanba, Tehsil Bichhiwada, District Dungarpur.

----Respondent S.B. Civil Writ Petition No. 19714/2022

1. State Of Rajasthan, Through The Director Department Of Secondary Education, Bikaner (Raj.)

2. The District Education Officer, (Headquarter) Secondary Education Department Of Education, Dungarpur (Raj.)

----Petitioners Versus Smt Leela Shah W/o Shri Chandulal Shah, R/o 3/86 Shivaji Nagar Old Housing Board, Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 19716/2022

1. State Of Rajasthan, Through The Director Department Of Secondary Education, Bikaner (Raj.)

[2023/RJJD/006660] (4 of 16) [CW-219/2023]

2. The District Education Officer, (Headquarter) Secondary Education Department Of Education, Dungarpur (Raj.)

----Petitioners Versus Smt Madhubala Pandaya D/o Kamlashankar Joshi, R/o 3 Bhramsthali Colony, District Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 225/2023

1. State Of Rajasthan, Through The Director Department Of Secondary Education, Bikaner (Raj.).

2. The District Education Officer (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Smt Nalini Trivedi W/o Shri Harish Upadhyaya, C/o Hansa Traders, Tehsil Road, Kherwada, District Udaipur (Raj.).

----Respondent S.B. Civil Writ Petition No. 226/2023

1. State Of Rajasthan, Through The Director, Department Of Secondary Education, Bikaner (Raj.).

2. The District Education Officer, (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Smt Shakuntla Joshi W/o Shri Rajendra Prasad Joshi, R/o Village And Post Oda Bada, Tehsil Bichhiwara, District Dungarpur.

----Respondent S.B. Civil Writ Petition No. 313/2023

1. State Of Rajasthan, Through The Director, Department Of Secondary Education, Bikaner (Raj.).

2. The District Education Officer (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Smt. Pushpa Damor W/o Shri Laxman Ji Damor, R/o J-322, Sector-14, Hiran Magri, Udaipur (Raj.).

----Respondent S.B. Civil Writ Petition No. 323/2023

1. State Of Rajasthan, Through The Director, Department Of

[2023/RJJD/006660] (5 of 16) [CW-219/2023]

Secondary Education, Bikaner (Raj.).

2. The District Education Officer, (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Smt Laxmi Purohit W/o Shri Devkinandan Purohit, R/o 43, Pratap Nagar Colony, Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 338/2023

1. State Of Rajasthan, Through The Director, Department Of Secondary Education, Bikaner (Raj.).

2. The District Education Officer (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Smt. Nirmala Pandaya W/o Shri Tarunesh Pandaya, R/o Village And Post Kanba Tehsil Bichhiwada, District Dungarpur.

----Respondent S.B. Civil Writ Petition No. 365/2023

1. State Of Rajasthan, Through The Director, Department Of Secondary Education, Bikaner, (Raj.).

2. The District Education Officer, (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Smt Memuna Malik W/o Shri Mohd Saiyed Malik, R/o Ghati Mohalla, Fauz Ka Badla, Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 387/2023

1. State Of Rajasthan, Through The Director, Department Of Secondary Education, Bikaner (Raj.).

2. The District Education Officer, Headquarter Secondary Education Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Mrs Nalini Choubisa W/o Shri Yogeshchandra Choubisa, Gandhi Ashram Sabela Bye Pass Road, Rotary Club Ke Piche, Dungarpur (Raj.).

----Respondent

[2023/RJJD/006660] (6 of 16) [CW-219/2023]

S.B. Civil Writ Petition No. 450/2023

1. State Of Rajasthan, Through The Director Department Of Secondary Education, Bikaner (Raj.).

2. District Education Officer, Headquarter Secondary Education Department Of Education

3. The District Education Officer (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Urmila Sharma D/o Late Shri Chaturbhuj Sharma, Plot No 2/56 Shivaji Nagar, Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 567/2023

1. State Of Rajasthan, Through The Director, Department Of Secondary Education, Bikaner (Raj.).

2. The District Education Officer, (Headquarter) Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Parvin Jaha Pathan D/o Shri Aalaudin Khan Pathan, R/o Plot No. 12/a, Patrakar Colony, Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 569/2023

1. State Of Rajasthan, Through The Director Department Of Secondary Education, Bikaner (Raj.)

2. The District Education Oficer (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.)

----Petitioners Versus Brij Bala Pandya W/o Late Shri Rajendra Prasad Pandya, R/o Plot No. 117, Subhash Nagar, Behind New Hospital, Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 631/2023

1. State Of Rajasthan, Through The Director Department Of Secondary Education, Bikaner (Raj.).

2. District Education Officer (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners

[2023/RJJD/006660] (7 of 16) [CW-219/2023]

Versus Smt. Usha Pandaya W/o Late Shri Prakash Pandaya, R/o Village And Post Oda Bada, Tehsil Bichhiwada, District Dungarpur.

----Respondent S.B. Civil Writ Petition No. 678/2023

1. State Of Rajasthan, Through The Director, Department Of Secondary Education, Bikaner (Raj.).

2. The District Education Officer (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Smt. Raksha Shah W/o Shri Hariprasad Gupta, R/o H. No. 15, Housing Board, Shivaji Nagar, Behind Raj Tent House, Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 794/2023

1. State Of Rajasthan, Through The Director Department Of Secondary Education, Bikaner (Raj.)

2. The District Education Officer (Headquarter), Secondary Education Department Of Education Dungarpur (Raj.)

----Petitioners Versus Smt Laxmi Vakhariya W/o Shri Bharat Lal Vakhariya, Vakhariya Chowk, Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 797/2023

1. State Of Rajasthan, Through The Director Department Of Secondary Education Bikaner (Raj.)

2. The District Education Officer (Headquarter), Secondary Education Department Of Education, Dungarpur (Raj.)

----Petitioners Versus Smt Hemlata Chaubisa W/o Shri Narendra Kumar Chaubisa, A/6 Bankers Street New Colony, Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 800/2023

1. State Of Rajasthan, Through The Director Department Of Secondary Education, Bikaner (Raj.)

2. The District Education Officer (Headquarter), Secondary

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Education Department Of Education, Dungarpur (Raj.)

----Petitioners Versus Smt Daksha Joshi W/o Shri Karunashankar Joshi, Village And Post Kanba, District Dungarpur (Raj.).

----Respondent S.B. Civil Writ Petition No. 1024/2023

1. State Of Rajasthan, Through The Director, Department Of Secondary Education, Bikaner (Raj.).

2. District Education Officer, (Headquarter), Secondary Education Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Smtjaiprabha Pandaya W/o Late Shri Manoharlal Pandaya, Village And Post Kanda, Tehsil Bichhiwada, District Dungarpur.

----Respondent S.B. Civil Writ Petition No. 2031/2023

1. State Of Rajasthan, Through The Director, Department Of Secondary Education, Bikaner (Raj.).

2. The District Education Officer, (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Smt Ishwari Devi W/o Shri Navin Chandra Pandya, R/o Village And Post Naval Shyam, Tehsil Bichhiwada, District Dungarpur (Raj.).

----Respondent

S.B. Civil Writ Petition No. 3475/2023

1. State Of Rajasthan, Through The Director, Department Of Secondary Education, Bikaner (Raj.).

2. The District Education Officer (Headquarter), Secondary Education, Department Of Education, Dungarpur (Raj.).

----Petitioners Versus Smt. Ramila Bhatt W/o Shri Ram Prasun Bhatt, R/o 346, Pratap Nagar, Dungarpur (Raj.).

----Respondent

[2023/RJJD/006660] (9 of 16) [CW-219/2023]

For Petitioner(s) : Mr. Hemant Choudhary, G.C.

For Respondent(s) : None present

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

14/03/2023

Lawyers are abstaining from work and are not appearing

before the Court, thus, nobody has appeared on behalf of the

respondents.

Since all these writ petitions arise out of the common

impugned order dated 03.09.2021 and are having common

question of law and similar facts, therefore, they are being heard

and decided by this common order.

For proper adjudication of the case, the facts are being

extracted from S.B. Civil Writ Petition No. 219/2023.

Brief facts of the case are that being eligible and having

requisite qualification prescribed under Rule 11 and the Schedule

attached to the Rajasthan Panchayat Samitis and Zila Parishad

Rules, 1959, respondent- Smt. Nandbala Joshi was appointed on

the post of Teacher Grade-III in the Education Department.

Thereafter, the District Education Officer, Elementary Education,

Dungarpur passed orders granting her I, II and III Selection

Scales on completion of 9, 18 & 27 years of service respectively

and also extended the benefit of fixation of pay under the

provision of Rajasthan Civil Services (Revised Pay) Rules, 2017 as

per recommendation of Seventh Pay Commission. Respondent-

Smt. Nandbala Joshi was continuing to receive the benefits

extended by the petitioners, however, all of a sudden, vide order

[2023/RJJD/006660] (10 of 16) [CW-219/2023]

dated 09.07.2018, the respondent No.2- District Education Officer,

Secondary Education instructed all the Heads of the offices to

effect the recovery of the amount from the salary of the

respondent which was paid to her on completion of 27 years of

service and also to recover the monetary benefits extended to her

by revision of pay under the Rules of 2017. Being aggrieved by

the order dated 09.07.2018 passed by District Education Officer,

Secondary Education, respondent- Smt. Nandbala Joshi preferred

an appeal before the Rajasthan Civil Services Appellate Tribunal,

Circuit Bench, Jodhpur (hereinafter referred to as 'the Tribunal').

The Tribunal vide its order dated 03.09.2021, while relying on the

various decisions of the Hon'ble Supreme Court and the High

Court, allowed the appeal preferred by the respondent and set

aside the order dated 09.07.2018 issued by the petitioner-State.

Aggrieved by the order dated 03.09.2021, the petitioner- State

has preferred these writ petitions.

Since the order dated 09.07.2018 was not on record, the

same has been supplied by Shri Hemant Choudhary, learned

Government counsel during the course of hearing. The same is

taken on record.

Mr. Hemant Choudhary, learned counsel for the petitioners

vehemently submits that the Tribunal has committed an error

while allowing the appeals of the respondents vide order dated

03.09.2021. He further submits that the Tribunal has not

considered the entire matter in the correct perspective. He also

submits that the recovery has been effected in pursuance of the

orders dated 29.06.2009 and 20.08.2010 passed by the Finance

Department of the State Government. Learned counsel also

[2023/RJJD/006660] (11 of 16) [CW-219/2023]

submits that since the benefit of III Selection Scale was wrongly

extended to the respondents, therefore, the payments made

erroneously were sought to be recovered. He further submits that

the State is well within its right to recover the payments made to

its employee if the same is erroneously made, as an employee is

not entitled to retain the payment which was otherwise not due to

him. He submits that the order dated 09.07.2018 for recovery of

the payment made to the respondents is just, proper and correct.

Learned Government counsel, therefore, prays that the writ

petitions may kindly be allowed and the order impugned dated

03.09.2021 passed by the learned Tribunal may be quashed and

set aside.

I have considered the submissions made at the Bar and have

gone through the pleadings as well as the order impugned dated

03.09.2021.

The grant of selection scales to the respondents on

completion of 9, 18 & 27 years of their service has not been

disputed. It is also an admitted position that the selection scales

were granted to the respondents by the petitioners considering

the prevalent rule position at that time. It is not the case of the

petitioners that there was any misrepresentation or the selection

scales have been granted to them on incorrect facts having been

supplied by the respondents. In nutshell, the respondents were

not at all responsible in supplying any kind of information, much

less wrong information for the grant of selection scales on

completion of 9, 18 & 27 years of service. Therefore, there is no

hesitation in holding that the selection scales granted by the

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petitioner-State is without any fault and misrepresentation on the

part of the respondents.

In the similar situation, Hon'ble the Supreme Court has

consistently held that excessive payments made to the employees

without their fault or misrepresentation cannot be recovered after

a lapse of long period of time.

Recently, the Apex Court in the case of Thomas Daniel Vs.

State of Kerala & Ors. (Civil Appeal No.7115 of 2010

decided on 02.05.2022) held as under:-

"11. In Col. B.J. Akkara (Retd.) v. Government of India and Ors. (2006) 11 SCC 709, this Court considered an identical question as under:

27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-6-1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana 1995 Supp (1) SCC 18 : Shyam Babu Verma v. Union of India (1994) 2 SCC 521 : Union of India v. M. Bhaskar (1996) 4 SCC 416 : and Gangaram v. Regional Jt. Director (1997) 6 SCC 139 :

(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.

(b) 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.

28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to

[2023/RJJD/006660] (13 of 16) [CW-219/2023]

recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.

29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in- service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The Petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the Respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7-6-1999 till the issue of the clarificatory circular dated 11-9-2001. Insofar as any excess payment made after the circular dated 11-9- 2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made.

12. In Syed Abdul Qadir and Ors. v. State of Bihar and Ors. : (2009) 3 SCC 475 excess payment was sought to be recovered which was made to the Appellants-teachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The Appellants therein contended that even if it were to be held that the Appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the Appellants cannot be held responsible in such a situation and recovery of the excess payment should not be ordered, especially when the employee has subsequently retired. The court observed that in general parlance, recovery is prohibited by courts where there exists no misrepresentation or fraud on the part of the employee and when the excess payment has been made by applying a wrong interpretation/ understanding of a Rule or Order. It was held thus:

59. Undoubtedly, the excess amount that has been paid to the Appellant teachers was not because of any misrepresentation or fraud on their part and the Appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-

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affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the Appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned Counsel appearing on behalf of the Appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the Appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the Appellant teachers should be made.

13. In State of Punjab and Ors. v. Rafiq Masih (White Washer) and Ors. : (2015) 4 SCC 334, wherein this Court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:

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.

xxx xxx xxx

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:

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(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in 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. Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the Appellant, the excess amounts have been paid. The Appellant has retired on 31.03.1999. In fact, the case of the Respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General.

15. Having regard to the above, we are of the view that an attempt to recover the said increments after passage of ten years of his retirement is unjustified.

16. In the result, the appeal succeeds and is accordingly allowed. The judgment and order of the Division Bench dated 02.03.2009 and also of the learned Single Judge of the High Court dated 05.01.2006 impugned herein, and the order dated 26.06.2000 passed by the Public Redressal Complaint Cell of the Chief Minister of Kerala and the recovery Notice dated 09.10.1997 are hereby set aside. There shall be no order as to costs."

A bare perusal of the order dated 09.07.2018 shows that the

benefits granted on completion of 27 years of service to the

respondents is unilaterally being recovered without giving any

opportunity of hearing. The order dated 09.07.2018 has civil and

evil consequence, therefore, an opportunity of hearing is must in

compliance of the principles of natural justice. Since the same has

not been granted in the present case, the order dated 09.07.2018

is not sustainable. The Tribunal has also taken note of persons

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similarly situated to the respondents who were granted relief on

the earlier occasions by the order of the Tribunal passed in Appeal

Nos.897/2002 to 1043/2002 on 16.03.2012.