V.M.Sahai, J. - (1.) The petitioner was working in Subordinate Agriculture Service Grade II. He was notionally promoted to Subordinate Agriculture Service Grade I w.e.f. 3.5.1985 by order dated 29.2.1996 of the Director of Agriculture, Krishi Bhawan, Uttar Pradesh, Lucknow. His pay in the higher promotional post was fixed w.e.f. 3.5.1985 under financial handbook Vol. II Part II to IV 22-B by order dated 13.1.1998. The Assistant Soil Survey Officer, Soil Testing Laboratory, Rawatpur, Kanpur passed pay fixation order on 9.12.2002 and payment of arrears w.e.f. 3.5.1985 the date of notional promotion. The arrears of Rs. 32,174/- was paid on 1.2.2003. However, the Assistant Soil Survey Officer passed another order on 28.4.2003 for recovery of the amount of Rs. 32,174/- paid as arrears to the petitioner on the ground that there was no order for payment of salary for the period during which the petitioner was granted notional promotion. The Assistant Soil Survey Officer stayed the recovery on 30.4.2003, however, by order dated 18.6.2003 he discharged the stay order and directed that the order dated 28.4.2003 be implemented. This petition has been filed by the petitioner challenging the order dated 28.4.2003 and 18.6.2003 passed by Assistant Soil Survey Officer.
(2.) We have heard Shri O.P. Khare, learned counsel for the petitioner and learned standing counsel appearing for respondents.
(3.) The learned counsel for the petitioner has urged that the arrears was paid to the petitioner by the respondent on their own and there was no fraud or misrepresentation on behalf of the petitioner, therefore the amount paid as arrears by the respondents could not be recovered from the petitioner in view of the law laid down by apex court in Shyam Babu Verma and Ors. v. Union of India and Ors. (1994) 27 Administrative Tribunals cases 121 and Sahib Ram v. State of Haryana and Ors. (1994) 28 Administrative Tribunals cases 747. On the other hand, learned standing counsel has urged that the arrears of salary cannot be paid where notional promotion had been granted. He urged that due to inadvertence the arrears of salary had been paid to the petitioner for the period during which he was notionally promoted but he had not worked on the promotional post, therefore, he is not entitled for payment of salary. The payment of arrears of salary made to the petitioner was illegal and the impugned order is rightly been passed directing for recovery of the amount of arrears paid to the petitioners.;