Siri Jagan, J.

The petitioner, at the time of filing this Original Petition, was an Office Superintendent (Higher Grade) in the Finance Department, Government Secretariat, Thiruvananthapuram. Subsequent to the filing of the Original Petition, he retired from service.

2. The petitioner became an Office Superintendent by promotion from the post of Selection Grade Typist in February 1993, by Ext.P1 order. At that time, the scale of pay of Office Superintendent was higher than that of Selection Grade Typist. Therefore, his pay in the scale of pay, applicable to Office Superintendent was fixed and approved by Ext.P-2 and P-3.

3. In March, 1995, by Ext.P-4 order, the Government equalized the scales of pay of Selection Grade Typist and Office Superintendent, retrospectively with effect from 1.3.1992, with monetary benefits from 1.4.1995. Consequent to audit objection applying Ext.P-4 order, the pay fixation of the petitioner done as per Exts.P-2 and P-3 on 18.2.1994 was undone and recovery of alleged excess pay of Rs.15,737 drawn by him, was sought to be recovered by Ext.P-5 memo. This was without notice to him, the petitioner alleges. Representations in this regard by Exts.P-6, P-7 and P-8 went unheeded. In fact, by Ext.P-6, the petitioner has also sought for a re-option which is allowable as per Government Order like Ext.P-9 in such circumstances. In Ext.P-8, he also pointed out to be anomaly of juniors drawing more salary and sought for stepping up pay at par with juniors. However, the Government, by Exs.P-10 and P-11 declined petitioner's request.

4. The petitioner further submits that in the case of Smt. Sathyaseela, who was the first person promoted as per Ext.Pl whose case is identical to that of the petitioner, audit objection was dropped and, by Ext.P-12, Government sought clarification from the Accountant General's Office as to why in the case of the petitioner and the other persons in Ext.P1, the audit objection was not dropped. He also points out that there are instances wherein the Government had waived recovery of excess pay drawn on account of wrong fixation of pay as evidenced by Exts.P-14 and P-15. The petitioner further submits that when promotion to posts in the same scale of pay is ordered, one advance increment can be sanctioned as per Ext.P-13 order which was also denied to the petitioner.

5. It is because the petitioner's lamentations fell on deaf ears that he approached this Court by filing this petition. .

6. The 1st respondent has filed a counter-affidavit justifying the action of the Government. It is stated therein that when scale of pay of the feeder post and promoted post are the same, no fixation can be granted and only one advance increment can be granted and one advance increment was granted to the petitioner. While justifying the audit objections, the 1st respondent does not deny Ext.P-12. Instead, it is stated as follows:

"It is submitted that consequent on the Regularisation of pay, the audit objection in respect of fixation of pay in the case of Smt. Sathyaseela was dropped vide letter dated 29.6.1998 from Accountant General, Thrissur. When the Government Memo regularizing the pay of the other Office Superintendents was received in the Office of the Accountant General, the audit objection was dropped subject to verification of recovery in all the three cases during next audit and the inspection report was requested to be treated as closed as per letter No.OA/HQ/11/111/12--31/dated 31.8.1998 from Accountant General, Kerala, Thrissur".

7. These contentions were reiterated during arguments. Counsel for the petitioner submits that when he was promoted in 1993, the scales of pay of Selection Grade Typist and Office Superintendent were different and therefore the fixation was perfectly valid with reference to the rules obtaining then and, therefore, by a retrospective operation given to an executive order, amounts cannot be recovered from the petitioner. Further, relying on the decisions of the Hon'