1. Admittedly, the appellants were working on the post of un-trained Draftsman in the pay scale of Rs. 1320-2040/- under the Directorate of Land Records arid Survey. They were given first time bound promotion on 1.7.1989 in the pay scale of Rs. 1400-2300/-.

2. In the Fifty Pay Revision Committees Report, which came into force with effect from 1.1.1996, the pay scale of Rs. 1320-2040/- was revised to Rs. 4000-6000/- and the pay scale of Rs. 1400-2300/- was revised to Rs. 4500-7000/-.

3. It appears that the revised scale of pay of the appellants was fixed on the basis of the Fifth Pay Revision Committees Report at Rs. 4500-7000/- from 1.1.1996. When the said mistake was detected, the Settlement Officer, Dhanbad, the respondent No. 5 passed orders on 28.6.2001 rectifying the said mistake and fixing the pay scale of the appellants and also directing for refund of the excess amount paid to them on account of wrong fixation of pay in the scale of Rs. 4500-7000/-.

4. The appellants challenged the said order in WP (S) No. 3632 of 2001 in this Court, which was dismissed by the learned single Judge on 14.3.2002 with a direction to the writ petitioners to refund the excess amount paid, in twelve instalments.

5. The appellants have, therefore, filed the present Appeal, challenging the said order.

6. Mrs. M.M. Pal, counsel for the appellants submitted that the appellants were working on the post of Draftsman since 1972. They were given time bound promotion in the year 1989 in the pay scale of Rs. 1400-2300/- and as such on 1.1.1996, when the Fifth Pay Revision Committees Report was made applicable, their pay was rightly fixed in the corresponding revised scale of Rs. 4500-7000/- and, therefore, the order of recovery of the excess amount paid as per the aforesaid revised scale from 1.4.1997 to 28.2.2001 was illegal and unjustified.

7. Mrs. Pal placed reliance on a decision of the Apex Court in Sahib Ram v. State of Haryana and Ors., 1995 Supp (1) SCC 18, wherein it was held that if benefit of higher pay scale was given not on account of any misrepresentation made by the person concerned, but by mistake committed by the office, for which he cannot be held to be at fault, the said amount may not be recovered from him. .

8. In our view, the appellants were holding substantive post of Draftsman in the scale of pay of Rs. 1320-2040/-, but on account of first time bound promotion they were getting the salary in the pay scale of Rs. 1400-2300/-, which was merely the next higher grade in the same cadre. However, as per the recommendation of the Fifth Pay Revision Committees Report, the appellants were entitled to the revised scale of pay against their existing scale, means the present scale applicable to the post held by them as on 11.1.1996 in the substantive capacity. The common replacement scale as per the report of the Pay Revision Committee was given for the cadre and as such the appellants were entitled for the replaced scale of pay of the cadre of Draftsman. They cannot claim the replaced scale of higher cadre/post of Head Draftsman.

9. It is not in dispute that the scale of pay of Head Draftsman was Rs. 1400-2300/- and the revised scale whereof was Rs. 4500-7000/-. The appellants are still holding the substantive posts of Draftsman, the scale of pay whereof was Rs. 1320-2000/- and, therefore, as per Government Resolution dated 8.2.1999. they were entitled for getting their scale fixing in the existing scale to the post they were holding in the substantive capacity as on 1.1,1996. So they were entitled for the revised scale of Rs. 4000-6000/- and not the scale of Rs. 4500-7000/-, which was wrongly fixed.

10. It is not correct to say that the benefit given to the appellants by time bound promotion was sought to be recovered for them.

11. In our view, the ratio of the decision in Sahib Ram, (supra) is not applicable in the facts and circumstances of the present case, because here the pay scale of the appellants were wrongly fixed in the scale of