IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 6095 of 2001 (S/S) (Old No. 6666 of 1998) Bhanwar Singh Pundeer S/o late Sri Tikka Singh Presently posted as Lab Asstt. Ground Water Department, Roorkee, D istrict Haridwar. ...…………. Petitioner Versus 1. State of U.P. through its Secretary, Department of Irrigation, U.P. Lucknow. 2. Director Department of Ground Water Department U.P. Lucknow. 3. Superintending Engineer Department of Ground Water Division –I, Bareilly. ...…………. Respondents Mr. Nagesh Aggrawal, Advocate, present for the writ petitioner. Mrs. Bina Pande, Standing Counsel for State of U.P., present for the respondents. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 of the Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the order dated 17.11.1997, passed by respondent No. 2, and order dated 06.01.1998, passed by respondent No. 2 3, whereby the order granting the petitioner promotional pay scale has been cancelled. 2) Heard learned counsel for the parties and perused the affidavits filed on their behalf. 3) Brief facts of the case are that the petitioner Bhanwar Singh Pundir was initially appointed in the Irrigation Department of State of Uttar Pradesh, and after bifurcation of said department, the petitioner joined his duties in Ground Water Department at Roorkee, on the post of Laboratory Assistant. Petitioner’s case is that after completion of 16 years of service, which included 06 years in selection grade, he was entitled to promotional scale. It is admitted to the parties that the petitioner was given promotional scale vide order dated 17.07.1997, passed by respondent No. 3 Superintending Engineer of the Ground Water Department, Bareilly. However, said order was cancelled vide impugned order dated 17.11.1997, passed by the Director of the Department on the ground that there was no promotional post in the department for the petitioner, as such, he was not entitled to the promotional scale. Consequently, another impugned order dated 6th January 1998, was issued by the Superintending Engineer. Hence, this writ petition was filed before the Allahabad High Court, from where the same is received by this court under Section 35 of the 3 U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 4) In Col. B.J. Akkara (Retd.) Vs. Government of India and others, (2006) 11 Supreme Court Cases 709, the Apex court has held that where certain payments have been made to an employee on account of misinterpretation or misunderstanding of a particular order, the recovery of the excess payment cannot be made from the employee unless he has misrepresented the employer or played fraud. Similar view has been expressed in Sahib Ram Vs. State of Haryana and others, 1995 Supp (1) Supreme Court Cases 18. In the present case, the respondent No. 3 interpreting the Government Order dated 18th of September 1995 (copy Annexure –1 to the writ petition) has granted the promotional scale to the petitioner. However, the respondent No. 2 vide impugned order directed that since there was no promotional post in the department for the petitioner, the promotional scale could not have been given to him under the aforesaid Government Order. Assuming for a moment, what the Director has stated is true, in view of the principle of law laid down by the Apex court as mentioned above, the recovery of the payment already made to the petitioner cannot be made by the respondents. 4 5) Learned counsel for the petitioner submitted that the colleagues of the petitioner who continued their services with the Irrigation Department got the promotional scales, but the petitioner is deprived of the same. Admittedly, the petitioner is no more employee of the Irrigation Department, and after creation of Ground Water Department he worked there, as such, he cannot claim parity of the employees of his previous department in which there were promotional posts available. It is also contended on behalf of the petitioner that there are no service rules framed by the Government for the new department which was bifurcated from the Department of Irrigation, as such, the order granting promotional scale to the petitioner was not liable to be cancelled. Had the promotional scale been granted before leaving the Irrigation Department, what has been argued on behalf of the petitioner, could have been accepted. But, it is not so in the present case. All the promotional posts which are available with the Irrigation Department cannot be said to have been automatically created in the Department (Ground Water), and as such, the argument does not help the petitioner. 6) For the reasons as discussed above, this petition is disposed of with the direction that the respondents shall not recover any amount already paid to the petitioner in the scale granted to him vide order dated 18.09.1995 and 05.02.1997. To that extent 5 impugned orders passed by the respondents shall not be given effect to. For the rest of the grievances the petitioner can make representation to the authorities concerned. No order as to costs. (Prafulla C. Pant, J.) Dt. March 05, 2011. H. Negi 6