Govind Mathur, J. - (1.) THE petitioner, a Vehicle Driver working with the respondent Jodhpur Vidhyut Vitaran Nigam Ltd., came to be retired from service on attaining the age of superannuation on 30.09.2008. While granting retrial benefits to the petitioner, the respondents passed an order for making fixation of the petitioner's pay in the pay scale of Rs. 5000 -8700 instead of the pay scale of Rs. 5500 -9000 with effect from 17.03.1997. A direction was also made for effecting recovery of the amount said to be paid in excess as a consequent to the fixation of the petitioner's pay in the pay scale of Rs. 5500 -9000 with effect from 13.03.1997. While challenging the same, at the threshold, it is submitted by learned counsel for the petitioner that he is confining his relief to the extent of recovery of the amount said to be paid in excess. It is stated that if any wrong fixation of pay was made in the year 1997, then that was not as a consequent to any misrepresentation or fraud on the part of the petitioner, but due to inadvertence of the respondents, as such, no recovery of the amount said to be paid in excess could be made. Per contra, the stand of the respondents is that the petitioner was holding the post Vehicle Driver, therefore, the pay scale in which fixation was required to be made was of Rs. 5000 -8700, however, due to some mistake, fixation of the pay was made in the pay scale of Rs. 5500 -9000. The petitioner was having no right to avail this pay scale, therefore, the order of re -fixation in the pay scale of Rs. 5000 -8700 was made and the amount paid in excess was recover from the retrial benefits given to the petitioner.
(2.) HEARD learned counsel for the parties. It is not in dispute that fixation of the petitioner's pay in the pay scale of Rs. 5500 -9000 was made by the respondents at their own and not on the basis of any representation or misrepresentation or fraud on the part of the petitioner. The petitioner availed fixation in the pay scale concerned as a consequent to a positive act on the part of the respondents, as such, it is not open for the respondents now to recover the amount said to be paid in excess, though they are having authority for making re -fixation of the petitioner's pay in the correct pay scale, i.e. of Rs. 5000 -8700. In view of the discussion made above, 1 deem it appropriate to dispose of this petition for writ by directing the respondent Jodhpur Vidhyut Vitaran Nigam Ltd. to release the amount of Rs. 29939/ - said to be paid in excess to the petitioner as a consequent to erroneous fixation of pay. The petitioner shall also be entitled for interest at the rate of 5.5% per annum on the amount aforesaid. The direction given is required to be executed by the respondents on or before 31.03.2013.;