V.K. Shukla, J. - (1.) BY means of present writ petition, the petitioners have approached this Court, questioning the validity of decision taken by the respondent authorities for recovering the amount paid to them in lieu of their having discharged duties at Kumbh Mela-2001. Brief background of the case is that the petitioners were employed with P.A.C. and posted at 4th Bn. P.A.C. Dhoomanganj, Allahabad. In the city of Allahabad at the time when Kumbh Mela took place, in order to maintain law and order situation, the petitioners were assigned duties in the aforesaid Mela. In lieu of their having discharged duties at Kumbh Mela, the petitioners were awarded additional remuneration. It appears that thereafter some audit objections were raised, and pursuant to the same decision was taken to recover the amount paid to the petitioners as additional remuneration. At this juncture present writ petition has been filed. Counter affidavit has been filed and therein plea has been taken that the incumbents who were posted in Allahabad and were assigned duties at Kumbh Mela were not entitled to additional remuneration, and in this background once amount in question was not liable to be paid, but the same had been incorrectly paid, as such rightly recovery proceeding has been initiated. After pleadings inter se parties have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties. Sri Praveen Kumar Singh, learned counsel for the petitioners, contended with vehemence that in the matter of grant of additional remuneration in lieu of having been assigned duties at Kumbh Mela, the petitioners had no role to play and there being no fraud of misrepresentation on their part in award of such additionalremuneration, and once amount has been paid, then by no stretch of imagination, the amount paid by way of additional remuneration, could have been recovered, as such recovery proceedings are bad in the eyes of law. Countering the said submission, learned Standing Counsel, on the other hand, contended that since the petitioners were not entitled to additional remuneration, rightful action has been taken for recovery of the amount paid to the petitioners, as such no interference be made. After respective arguments have been advanced, the factual position which emerges in the present case is that the petitioners, who were posted at 4th Bn. P.A.C. Dhoomanganj, Allahabad, were assigned duties at Kumbh Mela and in lieu of their having discharged duties at Kumbh Mela, the respondent authorities had awarded additional remuneration to the petitioners. After the amount had been paid, audit objections were raised taking therein plea that the Government Order under which the aforesaid remuneration had been paid was not at all applicable qua the employees posted at Allahabad, and the petitioners being posted at Allahabad were not entitled to additional remuneration, as such the amount paid to the petitioners was liable to be recovered. As per the Government Order, copy of which has been appended to the writ petition, same clearly and categorically mentions that the incumbents who are posted at Allahabad, in case they are assigned duties at Kumbh Mela, they will not be entitled to additional remuneration. In this view of the matter, as such it is correct that by virtue of being posted at Allahabad, additional remuneration was not admissible to the petitioners. There is one another aspect of the matter, State Government has taken decision that incumbents are entitled to additional remuneration, whose posting is beyond 8 kilometers In the past on this facet of the matter, there was some dispute, and in this regard for seeking clarification, the matter has been referred to the State Government, and as per counter affidavit, this is accepted position that till date the said query has not been answered by the State Government. Thus, and the authorities themselves were not clear on this aspect of the matter. However, when audit objections were raised, based on the same recovery proceedings have been initiated against the petitioners. To consider this aspect of the matter as to whether recovery is feasible qua the excess amount paid, view point of Hon'ble Apex Court is being looked into. Hon'ble Apex Court in the case of Shyam Babu Verma and others vs. Union of India and others, (1994) 2 SCC 521 has taken the view that once higher pay scale has been awarded due to no fraud or misrepresentation on the part of the incumbent and the excess amount which has been paid, the same cannot be recovered. Paragraph 11 of the aforesaid judgment being relevant is being quoted below: "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 yeas, received the scale of Rs.330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same." Full Bench of this Court in the case of Shyam Deo Mishra vs. State of U.P. and others, (2006) 1 (All) 467 (FB) has taken the view that in case of excess payment unless the said payment is result of employee's mistake or on his own showing, same cannot be recovered. Paragraph 18 of the aforesaid judgment being relevant is being quoted below: "18. Thus, broadly speaking, the principle which can be culled out from these decisions is that in commercial matters, the successful party is not only entitled to the amount withheld on the basis of the interim order, but it is also entitled to interest thereon. However, in service matters, if the incumbent has worked and has been paid, unless his claim was fraudulent, based upon frivolous grounds or upon acute factual dispute, the amount so paid ought not to be recovered. Even in cases of excess payment, it cannot be recovered unless said payment is result of the employee's mistake or on his showing. But, if the employee has been paid without working or has not been paid though has worked, he would not be entitled to it if the petition is dismissed as infructuous. We hasten to add, that the court cannot draw a exhaustive list of such situation, as each case is to be decided on its facts." Again Division Bench of this Court in the case of Rajendra Prasad Nigam vs. State of U.P. and others, (2007) 10 ADJ 413 (DB) while considering the question of excess payment has taken the view that in case there is no fraud or misrepresentation on the part of the incumbent, then order of recovery cannot be asked. Paragraphs 5 and 6 of the aforesaid judgment being relevant is being quoted below: "5.We are of the view that the contention of learned counsel for the petitioner-appellant has substance in view of the law laid down by the Apex Court as well as this Court in the judgments relied upon by learned counsel for the petitioner-appellant which have been followed by this Bench also in Special Appeal No. 1317 of 2003 M.D./Chief Engineer U.P. Jal Nigam and others Vs. Sri Nath Singh and other connected matters in which this Bench has held as under : "In the matter of recovery, we may remind to the authorities that now it is well settled if certain payment has been made to the employee on account of any fault of the employer, and for which the employee is not responsible, namely, not guilty of fraud or misrepresentation, in such a case, the amount which has already been received by the employee and he has spent, should not be recovered." 6. We, therefore, are of the view that the Hon'ble Single Judge fell in error by dismissing the writ petition merely on the ground that in the case of Shyam Babu Verma and others Vs. Union of India and others 1994, 1 UPLBEC (52) the recovery was being made after lapse of 11 years and, thus, that judgment has no application in the present case since in the present case, recovery is being sought within a period of 10 months. Moreover this finding is also contrary to record because the payment was admittedly made in the year 1994, i.e., immediately after the issuance of the G.O. dated 25.3.1994 whereas the order of recovery was passed on 19.1.1998, i.e., after a lapse of about four years. It is not disputed that the appellant has retired after attaining the age of superannuation in the meantime, i.e., before issuance of the order dated 19.1.1998. Thus, the order of Hon'ble Single Judge cannot sustain." On the parameters as set out, the principle culled out is that in service matters if amount in excess has been paid and in fixation of such amount, the incumbent has no role to play and there is no fraud or misrepresentation on his part, then the excess amount which has been paid, the same is not at all liable to be recovered. The fact of the matter is that in the present case also as for as payment of additional remuneration is concerned, same is not result of any fraud or misrepresentation on the part of the petitioners, nor the petitioners had any role to play in getting such additional remuneration paid to them. As no fraud or misrepresentation has been alleged against the petitioners, no orders for recovery could have been passed. Consequently, the impugned order directing recovery is not approved, and the same is quashed. writ petition succeeds and the same is allowed.;