Siddhartha Varma, J. - (1.) The petitioner was employed with the respondent no.4 who has been held to have been sufficiently served as is clear from the order dated 8.2.2019. It transpires from the record that the date of birth as was given out by the petitioner at the time of employment was subsequently amended and it was mentioned in the service book that the petitioner's date of birth was 2.7.1954. Thereafter, the petitioner continued on the basis of the entry made in the service book till the date of his retirement i.e. till 31.5.2014. However, after his retirement, the Deputy Director of Education (Secondary) i.e. respondent no.2 passed an order dated 7.11.2015 stating that since there was a cutting and change in the service book, the date of retirement of the petitioner had in fact to be 31.5.2008 instead of 31.5.2014 and after stating this fact, Rs.14,25,963/- were sought to be recovered from the petitioner. Another order dated 24.8.2015 which was passed stopping the interim pension which had been approved viz-a-viz the petitioner along with the order dated 7.11.2015 have been challenged in the instant writ petition.
(2.) Challenging the aforesaid orders dated 7.11.2015 and 24.8.2015, the petitioner submitted that when the date of birth was given out in the service book as 2.7.1954, after the petitioner had with clean hands submitted an affidavit to that effect before the Principal and on the basis of which the salary and retirement had followed, then at such a late stage in the year 2015, it could not be said that since the petitioner had altered the date of birth, the salary and retiral benefits had to be recovered from the petitioner and that the petitioner's retirement date had to be changed in accordance with the date of birth as was there before the change. Learned counsel for the petitioner, relying upon a decision of the Supreme Court reported in : State of Punjab & Ors. Vs. Rafiq Masih (White Washer) etc., 2015 AIR(SC) 696 stated that even though recovery of excess payment could have been done but if it was found that the recovery would cause hardship to an employee which out-weighed the right of recovery, then the same could not have been done. In this regard learned counsel for the petitioner read out paragraph nos.6, 7, 11 and 12 of the above judgment and, therefore, they are being reproduced here as under : "6. In view of the conclusions extracted hereinabove, it will be our endeavour, to lay down the parameters of fact situations, wherein employees, who are beneficiaries of wrongful monetary gains at the hands of the employer, may not be compelled to refund the same. In our considered view, the instant benefit cannot extend to an employee merely on account of the fact, that he was not an accessory to the mistake committed by the employer; or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee. 7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court. 11. ........................ ............... Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee. In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India, 1994 2 SCC 521, wherein this Court observed as under: "11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same." (emphasis is ours) ............................. 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). (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. "
(3.) Learned counsel for the petitioner further submitted that it mattered a little as to whether the alteration was done in accordance with law or not. What mattered was that there was no misrepresentation or fraud on the part of the petitioner. Further more, learned counsel submits that the respondents, after having known that the date of birth was altered, had taken work from the petitioner till the year 2014 and, therefore, when they had taken work from the petitioner with open eyes, they cannot now change their stand and say that the petitioner, since had to retire in the year 2008, had, therefore, to return the money which had been taken by him for the period commencing 31.5.2008 and ending on 31.5.2014.;