Alok Sharma, J.

Counsel for the petitioner has limited the challenge in this writ petition to recovery order dated 5-10-2014, consequent to order dated 15-9-2014, and has abandoned the challenge to her revised pay fixation.

2. A teacher Grade-II at the relevant time at the Government Girls Senior Secondary School Gangapole Jaipur, the petitioner filed Writ petition SBCWP No.4610/1997, titled Sushri Raj Srivastava v. State of Rajasthan. Vide order dated 22-8-1997, the petition was allowed and the respondent State directed to sanction in favour of the petitioner selection grade on completion of 9-18-27 years of service from the date of initial appointment i.e. 29-11-1975. Resultantly the District Education Officer vide order dated 20-7-2001 granted benefits of selection grade/s to the petitioner from the date of her initial appointment i.e. 29-11-1975. The petitioner was also granted and availed ACP of 9300-34800 with grade pay 4800 with effect from 29-11-2006 with reckoning the period of her service with reference to her initial appointment on 29-11-1975. The petitioner pursuant to order dated 21-9-2010 had been receiving selection scale with ACP since 29-11-2006.

3. Vide order dated 15-9-2014 the Director Secondary Education Rajasthan Bikaner held that as the petitioner was an untrained teacher, she was entitled in terms of the Government's circulars to benefits of selection scale only following ten years after her initial appointment i.e. from 29-11-1985. Resultantly the amount earlier paid to the petitioner conferring benefits of selection scale with reference to her initial date of appointment i.e. 29-11-1975 was reworked and it was found that an amount of Rs.1,40,139/- had been over paid to the petitioner in the interregnum. Thereafter vide order dated 7-5-2015 the recoverable amount was reduced to Rs.80,777/-. In the meantime the petitioner superannuated from the post of Teacher Grade-II on 31-12-2014. Hence this petition.

4. The amount of Rs.80,777/- has since been recovered from the petitioner's gratuity during the pendency of the writ petition.

5. Counsel for the petitioner has submitted that the dominant view of the courts is that where excess amounts are paid to an employee without any fraud or misrepresentation attributable to him, the said amount not be recovered subsequent to retirement. Reference has been made to the judgment of a three Judge Bench of the Apex Court in the case of Syed Abdul Qadir v. State of Bihar, [2008(7) SLR 642] wherein it has been held that where excess amount was paid to an employee on a wrong interpretation of the rule then applicable, for which the employee was not responsible and sought to be recovered at the stage when the employee was at the verge of retirement, to eschew any hardship to him no such amount paid, should be recovered. Reference was also made to the Apex Court's judgment in the case of State of Punjab v. Rafiq Masih [(2015)4 SCC 334] wherein it was again reiterated that excess amount paid to an employee not for reasons of his fraud or misrepresentation should not be recovered, for otherwise the employee would suffer hardship. Para 18 of the judgment set out illustratively the situations where no recovery of overpaid amounts to an employee should be made:-

“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 herein above, we may, as a ready reference, summarize the following few situations, where recoveries by the employers, would be impermissible in law:-

(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