Sudhir Agarwal, J.:-

1. Heard Sri P.R.Maurya, learned counsel for the petitioner and learned Standing Counsel for the respondents.

2. The case in brief of the petitioner is that he was appointed as Clerk/Accountant in Home Guard Department on 11th June, 1965 in the pay scale of 80-120, which was revised by Government Order 18th February, 1966 to 130-220 and further revised in 1976 to 230-385 vide Government Order dated 14th April, 1976 w.e.f. 1st August, 1972. The petitioner was promoted on the post of Head Clerk/Cashier and was placed in the pay scale of 250-425 which was revised to 430-685 w.e.f. 1st July, 1979. He was given various stagnation time scale from time to time and later on retired on attaining the age of superannuation on 28th February, 2006. When he claimed retiral benefits, Additional Director (Treasury and Pension) Jhansi issued an order dated 31st March, 2006 addressed to the District Commandant, Home Guards, Hamirpur stating that petitioner's pay was wrongly fixed on 1st July, 1982 and therefore, the amount paid in excess has to be recovered. A sum of Rs.40,989/- he withheld out of the amount of gratuity payable to the petitioner towards recovery of the alleged excess payment made to the petitioner. It is this order dated 31st March, 2006 which is impugned in this writ petition.

3. Respondents have filed a counter affidavit stating that the pay fixation of the petitioner w.e.f. 1st July 1982 was wrong and hence a sum of Rs.40,989/- has been withheld from his gratuity for adjustment against the excess amount paid to the petitioner. It is said that the last pay drawn at the time of retirement was Rs.6500/- though it ought to be 6250/-.

4. In para 5 of the counter affidavit the petitioner's appointment on the post of Clerk/Accountant in Home Guard Department on 11th June, 1965 and his promotion on the post of Head Clerk/Cashier w.e.f. 1st July, 1979 in the pay scale of Rs.250-425 revised to 430-685 is not disputed. However, it is said that there was break in service on 17.01.1980 and the petitioner was reappointed on 18th February, 1980 in the pay scale of Rs.200-320 as such there is possibility of difference in revised as well as selection grade but no such order of break in service or the reappointment has been placed on record. Moreover, once it is admitted in para 5 of the counter affidavit that the petitioner was promoted on the post of Head Clerk/Cashier w.e.f. 1st July, 1979 in the pay scale of 250-425, his reappointment in a lower pay scale of 200-320, which was a revised scale of Clerk/Accountant is not understandable. Learned Standing Counsel also could not explain the same. He, however, drew my attention to Annexure C.A.2 to the counter affidavit whereby petitioner's pay on 1st July, 1979 was fixed at Rs.550/- (basic pay plus Rs.30/- personal pay) but thereafter in the next five years no increment has been added and his basic pay has been shown as Rs.550/- on 1st July, 1980, 1st July, 1981, 1st July, 1982, 1st July, 1983, 1st July, 1984 and 1st July, 1985.

5. It is evident that aforesaid fixation of Rs.550/- could not earn any increment for the reason that it was the maxima of the pay scale of Rs.354-550. But this very fixation does not appear to be correct for the reason that petitioner was promoted as Head Clerk/Cashier w.e.f. 1st July, 1979 in the pay scale of 250-425 which was revised to Rs.430-685 w.e.f. 1st July, 1979. Hence pay of the petitioner was liable to be fixed in the scale of 430-685 and not in the earlier scale of 354-550 which was the revised pay scale of 200-320 applicable to Clerk/Accountant though the petitioner was promoted on the post of Head Clerk/Cashier. Though the respondents intend to refix his pay treating some break in service but they have not been able to explain as to how in absence of any material on record, it cannot be said that petitioner, who was promoted as Head Clerk/Cashier on 1st July, 1979 can be placed in the lower scale of 354-550 which was the scale applicable

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