1 18 S.B. CIVIL WRIT PETITION No.5247/2006 [KANHAIYA LAL SEN VS. STATE & ORS.] Dated : 15.02.2008 HON'BLE MR. MUNISHWAR NATH BHANDARI, J. Mr.Manish Shishodia for the petitioner. Mr.Kuldeep Mathur for the respondent. ***** The matter has come up on an application moved by the petitioner to seek disposal of the writ petition in light of the judgment of the Hon'ble Apex Court as referred in the application. Learned counsel for the respondent has no objection regarding disposal of the writ petition, however, it is urged that the prayer made in the application cannot be accepted. I have gone through the record of the case and find that vide Annex.1 an order was issued by the respondents for recovery of the amount which was earlier paid to the petitioner which was obviously on account of wrong fixation of petitioners pay scale. A final order in that regard was issued vide Annex.5 by which the pay scale of the petitioner was refixed. Counsel for the petitioner submits that so far as refixation is concerned, he is not pressing the writ petition, however, so far a the recovery of consequent to the refixation is concerned, that may be set aside in light of the judgment of 2 the Hon'ble Apex Court reported in 1994 (2) SCC 521 Vs. Union of India and few other judgments on the same issue as has been mentioned in the application. Learned counsel for the respondent though raised objection to the prayer of the counsel for the petitioner and submitted that so far as refixation is concerned, that has been made correctly vide Annex.5 and consequently the order of recovery was issued. I have heard the rival submissions of the parties, looking to the fact that in the present writ petition is being pressed regarding recovery of the amount already paid to the petitioner as per the fixation earlier made and now refixed vide Annex.5. Looking to the fact that benefit of pay scale was given to the petitioner earlier without any misrepresentation or fraud on his part though even if the fixation earlier made was not proper and thereby the pay scale of the petitioner has been refixed vide Annex.5, the recovery of the amount already paid to the petitioner cannot be accepted. In view of the above, the writ petition is allowed, the impugned order of recovery is set aside and consequently the amount withhold on retirement of the petitioner is directed to be paid to the petitioner within a period of three months from the date of receipt of this judgment. (MUNISHWAR NATH BHANDARI), J. mamta