By the Court.—By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Ram Murti Singh, seeks the following reliefs :

(a) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 2.4.2002 passed by the State Government (Annexure 1 to the writ petition) which dispatched on 22.4.2002 and given to petitioner on 1.5.2002 in respect of the petitioner.

(b) issue a writ, order or direction in the nature of mandamus directing the respondents not to give effect as impugned order referred above in respect of the petitioner.

(c) issue a writ, order or direction in the nature of mandamus directing the respondents not to change the status of the petitioner and permit to continue on the post and salary as held by the petitioner.

(d) issue a writ, order or direction in the nature of mandamus which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

(e) Award cost of the petition in favour of the petitioner.

2. Briefly stated, the facts giving rise to the present petition are as follows :

According to the petitioner, he was initially appointed as Assistant Sales Tax Officer and has been promoted to the post of Sales Tax Officer on 20th March, 1978. The post has been designated as Trade Tax Officer. Vide order dated 6th March, 1993 passed by the Secretary, Institutional Finance, Government of U.P., the petitioner was granted revised pay scale w.e.f. 22nd March, 1986. However, vide order dated 2nd April, 2002 passed by the Principal Secretary, Tax and Registration Department of the Government of U.P. the revised pay scale granted earlier to the petitioner has been shifted from 22nd March, 1986 to 20th March, 1989 and the excess amount paid has been directed to be recovered from him. The order dated 2nd April, 2002 in so far as it directs recovery of the amount paid to the petitioner is under challenge in the present writ petition.

3. We have heard Sri Dilip Singh, learned Counsel for the petitioner and Sri Prakash Singh, learned Standing Counsel appearing for the respondents.

4. Learned Counsel for the petitioner submitted that the petitioner was paid revised pay scale w.e.f. 22nd March, 1986 by the Secretary, Institutional Finance, Government of U.P. without there being any misrepresentation, fraud or coercion or on the asking of the petitioner and, therefore, the excess amount paid to him cannot be recovered. The fact that there was no misrepresentation or fraud or coercion or asking by the petitioner for payment of revised pay scale w.e.f. 22nd March, 1986, has not been disputed by the respondents. However, their stand is that the petitioner was not entitled for the revised pay scale from 22nd March, 1986 but it was only from 20th March, 1989 when his services were regularized and, therefore, the excess amount paid to the petitioner is liable to be recovered.

5. Having given our anxious consideration to the various pleas raised by the learned Counsel for the parties, we find that now it is well settled by the decision of the Apex Court that if employees have received higher scale due to no fault of theirs, it would only be just and proper not to recover any excess amount already paid to them.

6. The Apex Court in the case of Shyam Babu Verma and others v. Union of India and others, (1994) 2 SCC 521, dealing with a situation where the petitioner received higher pay scale due to no fault of theirs, they had held that it would not be just and proper to recover the salary already paid to them. In paragraph 11 of the report, the Apex Court has held as follows :

“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. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they have received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that sc