1 S.B. CIVIL WRIT PETITION NO.1251/2006 Yagya Dutt Vyas Vs. State of Rajasthan & Ors. Date of Order :: 12-03-2008 HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI Mr. Mahesh Bora, for the petitioner. Mr. Shyam Ladrecha, Government Counsel. By this writ petition, petitioner has challenged the order at Annexure-8 and order at annexure-10. Contention of the learned counsel for the petitioner is that by virtue of order dated 14.1.1997, the petitioner was promoted to the post of Assistant Engineer and as a consequence of which, petitioner was fixed at the basic pay of Rs.8550/- in the pay scale of Rs.8000-13500/-. The petitioner thereafter retired on 30.9.2003 and after his retirement, Annexure-8 was issued. By virtue of which, the pay of the petitioner was refixed at the basic of Rs.8275/-. As a consequence of refixation, respondents issued order of recovery for the excess amount vide Annexure-10. The contention of the learned counsel for the petitioner is that neither the refixation nor the recovery is proper, therefore both the orders need to be quashed. 2 Learned counsel for the respondents on the other hand submits that petitioner was extended the benefit of one selection scale and by virtue of the said benefit, the pay scale of the promotional post was given. Hence, on actual promotion of the petitioner to the post of Assistant Engineer, petitioner was required to be fixed without benefit of one or two grade increments as otherwise provided while fixing an employee on promotion. The argument of learned counsel for the respondent is that the petitioner was not entitled for benefit of fixation on two occasions i.e. on grant of selection scale as well as on promotion. Thus, necessary corrective order was issued at Annexure-8 and by virtue of wrong fixation, petitioner was paid excess amount, therefore, order of recovery at Annexure-10 was also issued. Learned counsel for the petitioner submits that while passing the order at Annexure-8, respondents have not clarified as to whether petitioner was given benefit of fixation with one or two grade increments at the time of grant of selection scale, therefore without clarifying the issue, refixation cannot be said to be proper. The further argument of the learned counsel for the petitioner is that even if, refixation has to be effected, the order 3 of recovery is bad because the excess amount was paid to the petitioner without his misrepresentation, hence in any case, order of recovery deserves to be set aside. I have considered the rival submissions of the learned counsel for the parties and perused the record. The short controversy involved in the present matter remains as to whether refixation is proper or not. Taking into consideration the argument of the learned counsel for the petitioner, it was necessary for the respondents to indicate as to whether benefit of one or two grade increments was given at the time of benefit of grant of selection scale more so when the order of refixation is based on that ground only. Hence, the refixation can be effected only when the petitioner was given benefit of refixation with one or two grade increments at the time of selection scale and not otherwise. This is one aspect of the matter which is required to be looked into by the respondents. However, even if, it is assumed that the refixation vide impugned order at Annexure-8 has properly been made, then also the respondents cannot effect recovery because the amount paid to the petitioner was not due to his misrepresentation. Therefore, so far as recovery order (annexure-10) is concerned, same is set aside and the respondents are 4 directed not to effect recovery of the aforesaid amount from any retiral benefit payable to the petitioner. The issue pertaining to Annexure-8 needs reconsideration, inasmuch as the respondents are directed to look into the matter as to whether the petitioner was given benefit of fixation on the selection scale as indicated in the judgment. If such benefits were given, then only the order Annexure-8 can be allowed to stand. However, if no such benefit of fixation with one or two grade increments was given at the time of grant of selection scale, then the order at annexure-8 cannot be allowed to stand. The writ petition in that regard is disposed of with a direction to the respondents to determine the aforesaid issue within a period of two months from the date of receipt of copy of this order and pass necessary orders in that regard clarifying the entire issue as indicated above but at the same time, the order of recovery would not be effected and if the amount has already been recovered from the petitioner, the same would be repaid within a period of two months. The writ petition is disposed of accordingly. [MUNISHWAR NATH BHANDARI],J. Praveen