1 S.B. CIVIL WRIT PETITION NO.2594/2008. (BHUBARAM VS. STATE OF RAJASTHAN & ORS.) DATE OF ORDER : 09.01.2009. HON'BLE MR. GOVIND MATHUR, J. Mr. Moti Singh for the petitioner. None present for the respondents. Despite service, no body has put in appearance on behalf of the respondents. In brief, facts of the case are that the petitioner entered in the services of respondents as Lower Division clerk in the office of Collector, Sirohi on 05.12.1979. A requisite departmental examination was also qualified by him on 17.10.1982. The respondents allowed second selection grade to the petitioner as per the Government of Rajasthan notification dated 25.01.1992 w.e.f. 27.12.1997. The fixation of the petitioner's pay was also made in the month of April 1998. The Collector, Sirohi passed an order dated 18.10.2007 stating therein that the Directorate of Audit in its internal report pointed out that the selection grade was given to the petitioner from a wrong date and as such certain amount in excess was given to him. The Collector accordingly issued instructions to effect 2 recovery of the amount said to be paid in excess. By this petition for writ, the petitioner is challenging the recovery sough to be made under order impugned dated 18.12.2007. It is stated by learned counsel for the petitioner that the respondents allowed selection grades to the petitioner at their own and there was no mis-representation, concealment or fraud on part of the petitioner. If any amount in excess to the entitlement is received by the pettioner i.e. because of positive act on part of the respondents. As such, the recovery proposed is illegal. As stated above, none is present to oppose the petition on behalf of the respondents despite service. I have examined record of the case. The order passed by the Collector dated 18.10.2007 (Annexure 7), as a matter of fact, is an instruction given by the Collector to effect recovery from the petitioner, however, the communication aforesaid nowhere prescribes details about erroneous grant of selection grades extended to the petitioner. It also nowhere mentions that if the selection grades were given erroneously to the petitioner, then that was because of any mis- 3 representation on his part. It is well settled that if a wrong fixation is made by the Department at its own without any mis- representation or forgery or concealment by the employee, then the amount, if any, paid in excess then to the entitlement is not required to be recovered. In view of it, this petition for writ is allowed. The instructions given by the Collector, Sirohi to the Tehsildar, Shivganj under the communication dated 18.10.2007 (Annexure- 7) to effect recovery from the petitioner is declared illegal and the respondents are restrained from effecting recovery from the petitioner against the amount said to be paid in excess as a grant of second selection grade. No order to cost. (GOVIND MATHUR)J. Anil/