1 S.B.CIVIL WRIT PETITION NO. 2204/1999 Narendra Singh Khichi Vs. Union of India & Ors. Date of Order :: 20.03.2009 HON'BLE MR. JUSTICE GOVIND MATHUR Mr R.S. Bhati, for the petitioner/s. Mr Vineet Pandya for Mr. V.K. Mathur, for the respondents. ... To assail validity of the order dated 1.8.1996 passed by the Commandant/Manager (Admn.) in the office of the General Manager, Tar Smoke Unit, BSF, Tekanpur, Gwalior this petition for writ is preferred. By the order aforesaid, the respondents withdrew fixation of the petitioner made at Rs.380 in the pay scale of RS. 380-12-500-EB-15- 560 with an instruction to effect recovery for the amount said to be paid in excess during the period from 23.10.1980 to 3.9.1986. It is stated by learned counsel for the petitioner that the order of fixation could not have been withdrawn unilaterally by the respondents. The argument aforesaid is substantiated by placing reliance upon the judgment of Hon'ble Supreme Court in Divisional Superintendent, Eastern Railway, Dinapur & Ors. Vs. L.N. Kashri & Ors. reported in AIR 1974 SC 1889. It is also contended by learned counsel for the petitioner that the recovery sought to be made from the petitioner is also illegal on the count that the petitioner never made any 2 mis-representation or forgery to get his pay fixed in the pay scale of Rs.380-560. It is asserted that, as a matter of fact, the petitioner was entitled for fixation in the pay scale in question as a consequent to his promotion to the rank of Sub-Inspector. Per contra stand of the respondents is that the petitioner was not entitled for any monetary benefits as the promotion given to him to the post of Sub-Inspector was local without financial benefits. Heard counsel for the parties. It is not in dispute that no notice or opportunity of being heard was given to the petitioner before withdrawing fixation from the pay scale of Rs.380-560. In the case of Divisional Superintendent, Eastern Railway, Dinapur & Ors. (supra) Hon'ble Apex Court while considering a similar issue held that a pay scale allowed and the fixation made therein could not be withdrawn or reduced without giving an opportunity of hearing to the employee concerned. In view of the law laid down by the Hon'ble Supreme Court in the case aforesaid, in the instant matter too the violation of principles of natural justices is apparent, and therefore, the order impugned is certainly bad. I am also in agreement with learned counsel for the petitioner that no recovery for the amount said to be paid in excess can be made in view of the fact that whatever 3 fixation was made that was without any misrepresentation or any forgery on part of the petitioner. Hon'ble Supreme Court in Sahib Ram Vs. State of Haryana {1995 SCC (L&S) 248} held that the pay given in excess due to wrong construction of relevant order by the authority concerned without any misrepresentation on part of employee can not be subjected to recovery. In view of the legal position discussed above this petition for writ deserves acceptance, and therefore, the same is allowed. The order impugned dated 1.8.1996 passed by the Commandant/Manager (Admn.) in the office of the General Manager, Tar Smoke Unit, BSF, Tekanpur, Gwalior is declared illegal, therefore, the same is quashed. The recovery of the amount said to be paid in excess in pursuant to fixation of the petitioner made in the pay scale of Rs.380-560 for the period commencing from 23.10.1980 to 3.9.1986 is also declared bad, and thus, is quashed. No order as to costs. (GOVIND MATHUR), J. Jgoyal '