1. By this writ petition, the petitioner has challenged the order Annexure P/3 dated 3.10.2016 by which a recovery of a sum of Rs.4,49,884/- has been directed against the petitioner.

2. The case of the petitioner is that she was initially appointed as a staff nurse vide order dated 17.11.1973 and after completing more than 43 years of service she has retired on 31.1.2017 on reaching the age of superannuation and at the fag end of service just before her retirement the impugned order or recovery has been passed.

3. A reply has been filed by the respondents taking the stand that the petitioner would have become eligible for grant of the kramonnati on 19.4.1999 after completing 24 years of service, but prior to that she was granted promotion in the year 1985, therefore, she was not eligible for the kramonnati, but by mistake she was granted second kramonnati in the year 1999 and when the said mistake was detected, the impugned recovery was directed. A further stand has been taken that the petitioner had given the undertaking Annexure R/5.

4. Learned counsel for petitioner submits that no opportunity of hearing has been given to the petitioner and the recovery at this stage will cause serious hardship.

5. As against this, learned counsel for respondents submits that since the excess amount was paid to the petitioner on account of wrong grant of kramonnati, it is sought to be recovered. He further submits that the recovery has rightly been directed.

6. Having heard the learned counsel for parties and on perusal of the record, it is noticed that the said wrong grant of kramonnati was not on account of any misrepresentation or fraud at the instance of the petitioner. It is undisputed that before passing the impugned order no opportunity of hearing has been given to the petitioner.

7. The Supreme Court in the matter of State of Punjab and others etc. v. Rafiq Masih (White Washer) etc Civil Appeal No.11527/2014 by order dated 18th December, 2014 [AIR 2015 SC 696], considering the issue of recovery of amount and hardship caused in consequent thereof in similar circumstances has held that :

“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.”

8. The case of the petitioner is squarely covered by clause (i) and (iii) of the aforesaid judgment. Hence, in view of the judgment of the Supreme Court in the matter of Rafiq Masih (supra), the respondents cannot be permitted to make the recovery at this stage.

9. So far as the undertaking Annexure R/5 is concerned, the same does not relate to the benefit of second kramonnati which was extended to the petitioner, but it was in respect of the benefit of the Revision of Pay Rules 1998 which was extended to her. Even otherwise the principal bench in Writ Appeal No.1232/2017 in the matter of State of M.P. and ot