- (1.) SUPPLEMENTARY affidavit filed by the petitioners is admitted to record. Heard Counsel for the petitioners and the Standing Counsel. Counsel for the petitioners submits that all the petitioners are appointed and confirmed on the post of Lekhpals in accordance with Lekhpal Service Rules, 1958. In the year 2006, Lekhpals of Basti have preferred a Writ Petition bearing No. 4434 of 2001 Dheer Singh and others Versus State of U.P. and others. In compliance of this Court's Order, the petitioners were given all benefits. By means of the order dated 10.4.2006, the opposite party No.2 directed to provide the promotional scale in the pay scale of Rs.1350-2200 (revised pay sale is Rs.4500-7000), which has been implemented, but by the impugned order dated 19.9.2008, certain objections have been raised against the promotional pay scale provided to the Lekhpals. Against the impugned order, they preferred a representation, but no heed has been paid.
(2.) IN the supplementary affidavit, it has been stated that the petitioners are deprived of their legitimate claim. Similarly situated persons filed a writ petition at Allahabad bearing No. 34934 of 2009 and this Court stayed the operation and implementation of the order dated 25.3.2009. Owing to wrong fixation of salary, the department is going to recover the amount from the petitioners which has already been paid to them. On 25.3.2009, the Tehsildar, Bhanpur, District Basti issued letters to the Lekhpals wherein they have been directed to deposit Rs.1,14,485/- each which had been pin excess to them towards salary due to wrong fixation of their salary before 1.3.2000 failing which recovery will be made. Challenging the said recovery as well as anomaly in the pay scale earlier, some other similarly situated persons have filed writ petition No. 52395 of 2009 Budhiram Versus State of U.P. and others and in this case also, the operation and implementation of the recovery order was stayed. Learned Counsel for the petitioners has drawn the attention of this Court towards the averments made in the Counter- affidavit. In this affidavit, it has been stated that no recovery is being made from any of the petitioner and contrary to it, Tehsildar Basti informed that the department is enquiring the matter and necessary actions are being taken for recovery of salary/pension. From the perusal of the record, it comes out that the impugned order has been passed without application of mind on unfounded ground. Moreover, it is also settled proposition of law that in case the higher pay scale is paid to the government employee on no fault on his party, the government shall not be entitled to recover the amount paid to the employees.
(3.) IN support of the petitioners' submissions, he has relied upon the cases of Bindeshwari Sahai Srivastava v. The Chief Engineer, Irrigation Department, U.P. and others [(1996) 4 UPLBEC 2634]. In the said case, the Apex Court's judgment passed in Sahib Ram v. The State of Haryana and others [JT 1995 (1) SC24] has been followed, wherein it was laid down as under:- "Admittedly the appellant does not passes the required educational. Under circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of higher payscale 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. The Principle of equal pay for equal work would not apply to the scale prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." ;