ASHOK BHUSHAN, J.

1. Heard both the sides. This writ appeal has been filed against the judgment dated 09.10.2015 in W.P. (C) No. 26585 of 2005.

2. The first respondent to the writ petition is in appeal challenging the judgment of learned Single Judge by which judgment the learned Single Judge has set aside Exts.P4, P9 and P11. The brief facts for deciding the appeal are as follows:-

The petitioner joined the Bank as a Steno-cum-Typist and later her services were regularised with effect from 13.05.1990. Petitioner made an application for giving her grade promotion. An order was passed on 31.01.1998 giving grade promotion to the petitioner with retrospective effect from 13.05.1990. Petitioner's pay was fixed and accordingly payment was made. While so, the Bank has issued memo dated 01.10.2004 directing the petitioner to refund an amount of Rs. 33,570/-. Proceedings dated 29.03.2005 was issued by the General Manager directing for recovery of the amount within one month. The Revision Petition filed by the petitioner was also dismissed by Ext.P11. Challenging the aforesaid, the writ petition was filed praying for the following reliefs:-

(i) Call for the records leading to the issuance of Ext.P4, P9 and P17.

(ii) Declare that Ext.P4, P9 and P17 are unsustainable in the eyes of law.

(iii) Issue a writ of certiorari or appropriate writ or order or direction quashing Ext.P4, P9 and P17.

(iv) Issue a writ of mandamus or appropriate writ or order or direction to the respondents to refund the recovered amount to the petitioner within a reasonable time.

(v) Issue such other or further appropriate writ or order or direction as this Hon'ble Court may deem just and necessary in the circumstances of the case including the cost of this Writ Petition (Civil)."

3. The learned Single Judge has framed three issues for decision which were to the following effect:-

(1) Whether there is any difference between time bound higher grade promotion and 1:1 ratio grade promotion?

(2) Whether the petitioner is entitled to any grade promotion?

(3) Whether the first respondent Bank is justified in seeking to recover after a lapse of six years the excess pay paid to the petitioner?

4. Issue Nos. 1 and 2 were decided in favour of the Management and however, while deciding issue No.3 the learned Single Judge relying on the judgment of Apex Court reported in State of Punjab and Others vs. Rafiq Masih (While Washer) and Others, (2015) 4 SCC 334 had held that the recovery could not have been effected from the petitioner. Learned Single Judge decided the third issue in favour of the petitioner and set aside the order.

5. Learned counsel for the appellant challenging the judgment of learned Single Judge contends that excess payment was made to the writ petitioner on her own application. Reliance on the ratio as laid down by the Apex Court in Rafiq Masih's case (supra) is not applicable. It is submitted that it was on the misrepresentation of the petitioner that higher grade was sanctioned, whereas the petitioner was granted promotion within 5 years. He again submitted that learned Single Judge ought to have permitted recovery of the excess payment made.

6. Learned counsel for the writ petitioner opposing the prayer of appellant submits that the Bank fixed the salary of the petitioner by Ext.P3 on the basis of the order of Government dated 11.1.1995. It was the Bank's decision to fix the salary in the higher grade in which it cannot be said to be passed on misrepresentation on behalf of the writ petitioner. Ext.P3 refers to a decision of the Board of Directors as well as the Government Order for taking the decision. Ext.P3 proceedings even does not refer to any application or facts submitted by the petitioner.

7. Learned Single Judge in the above facts relies on the ratio of Apex Court in Rafiq Masih's case (supra) held in paragraphs 16 and 18 as follows:-

"This Court in Syed Abdul Qadir vs. State of Bihar held as follows:-

"59. Undoubtedly, the excess amount