JUDGMENT V.M. Sahai, J.
1. The petitioner was working in Subordinate Agriculture Service Grade II. He was notionally promoted to Subordinate Agriculture Service Grade I w.e.f. 3.5.1985 by order dated 29.2.1996 of the Director of Agriculture, Krishi Bhawan, Uttar Pradesh, Lucknow. His pay in the higher promotional post was fixed w.e.f. 3.5.1985 under financial handbook Vol. II Part II to IV 22-B by order dated 13.1.1998. The Assistant Soil Survey Officer, Soil Testing Laboratory, Rawatpur, Kanpur passed pay fixation order on 9.12.2002 and payment of arrears w.e.f. 3.5.1985 the date of notional promotion. The arrears of Rs. 32,174/- was paid on 1.2.2003. However, the Assistant Soil Survey Officer passed another order on 28.4.2003 for recovery of the amount of Rs. 32,174/- paid as arrears to the petitioner on the ground that there was no order for payment of salary for the period during which the petitioner was granted notional promotion. The Assistant Soil Survey Officer stayed the recovery on 30.4.2003, however, by order dated 18.6.2003 he discharged the stay order and directed that the order dated 28.4.2003 be implemented. This petition has been filed by the petitioner challenging the order dated 28.4.2003 and 18.6.2003 passed by Assistant Soil Survey Officer.
2. We have heard Shri O.P. Khare, learned counsel for the petitioner and learned standing counsel appearing for respondents.
3. The learned counsel for the petitioner has urged that the arrears was paid to the petitioner by the respondent on their own and there was no fraud or misrepresentation on behalf of the petitioner, therefore the amount paid as arrears by the respondents could not be recovered from the petitioner in view of the law laid down by apex court in Shyam Babu Verma and Ors. v. Union of India and Ors. (1994) 27 Administrative Tribunals cases 121 and Sahib Ram v. State of Haryana and Ors. (1994) 28 Administrative Tribunals cases 747. On the other hand, learned standing counsel has urged that the arrears of salary cannot be paid where notional promotion had been granted. He urged that due to inadvertence the arrears of salary had been paid to the petitioner for the period during which he was notionally promoted but he had not worked on the promotional post, therefore, he is not entitled for payment of salary. The payment of arrears of salary made to the petitioner was illegal and the impugned order is rightly been passed directing for recovery of the amount of arrears paid to the petitioners.
4. The petitioner was notionally promoted on 29.2.1996 from the Subordinate Agriculture Service Grade II to Subordinate Agriculture Service Grade I as juniors to the petitioner had already been promoted. The Assistant Soil Survey Officer passed an order on 9.12.2002 for payment of arrears w.e.f. 3.5.1985, the date from which the petitioner was granted notional promotion. The arrears of salary of Rs. 32,174/- was paid to the petitioner on 1.2.2003. The Assistant Soil Survey Officer passed an order on 28.4.2003 that arrears have been paid to the petition inadvertently and he was not entitled for payment of arrears of salary as there was no specific order for payment. Further salary is not liable to be paid for the period during which the petitioner had been granted notional promotion. In the counter affidavit it has not been stated that payment of arrears was made to the petitioner due to any false misrepresentation of the petitioner or fraud committed by him. The apex court in Shyam Babu Verma (supra) has held as under :-
"11. Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. 1.1.1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from 1.1.1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same."
The apex court in Sahib Ram (supra) has held as under :-
"...However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant...."
5. From the aforesaid decisions of the apex court, it is clear that if any amount has been paid to the petitioner by the respondents and there was no misrepresentation made by the petitioner then the amount already paid could not be recovered. There is no material on the record to establish that any misrepresentation was made by the petitioner. The payment of arrears of salary has been made by the Assistant Soil Survey Officer on his own after fixing the pay of the petitioner. We are of the opinion that in view of the law laid down by the apex court the respondents could not recover the amount of arrears of salary already paid to the petitioner on 1.2.2003 in pursuance of the order dated 9.12.2002, therefore, the impugned order dated 28.4.2003 and 18.6.2003 cannot be maintained.
6. In the result the writ petition succeeds and is allowed. The order dated 28.4.2003 and 18.6.2003 passed by respondent No. 3 annexures No. 5 and 6 respectively to the petition are quashed.
7. Parties shall bear their own costs.