JUDGMENT By the Court.—This intra-Court appeal arises out of the judgement of Honble Single Judge dated 27.5.2004 in Writ Petition No. 15313 of 1998 dismissing the appellants writ petition against the order of recovery, which is being sought to be made from his pension and gratuity on account of excess payment of salary when he was in service. 2. We have heard learned Counsel for the petitioner-appellant as well as learned Standing Counsel for the respondents. 3. It appears that the appellant was appointed on 15.12.1956 as Health Visitor in the pay scale of 354-550. In the year 1994 the pay scale of Rs. 470-735 was given to the Multipurpose Health Workers and others with effect from 23.7.1981. Consequently, the petitioner-appellant was paid the difference on account of enhancement of the scale by virtue of the aforesaid Government Order. However, the aforesaid Government Order was subsequently set aside and was modified by another Government Order dated 23.5.1995. The petitioner-appellant in the meanwhile retired after attaining the age of superannuation. Now after lapse of several years, respondents by the impugned order dated 19.1.1998 have sought to recover the excess payment of salary made to the petitioner from his pension as well as gratuity. Learned Counsel for the petitioner relying on various judgments of this Court as well as the Apex Court, namely, B.N. Singh v. State of U.P. and another, 1979 ALJ 1184, Shyam Babu Verma and another v. Union of India and others, 1994 (2) SCC 521 ; Gabriel Saver Fernandes and others v. State of Karnataka and others, 1995 Suppl. (1) SCC 149, Mahmood Hasan v. State of U.P., JT 1997 (1) SC 353; State of Karnataka and another v. Mangalore University Non-Teaching Employees Association and others, 2002 (3) SCC 302 ; Surya Deo Mishra v. State of U.P., 2006(1) ADJ 467 (All)(FB); 2006(1) ESC 379 (All)(FB); Purushottam Lal Das and others v. State of Bihar and others, 2006(4) ESC 452 (SC) vehemently contended that the excess payment made by the State Government cannot be recovered from an employee unless it is found that the excess payment was made on account of misrepresentation or any fraud or misleading act on the part of the employee. It is submitted that the aforesaid benefit of revision of pay scale was granted by the State Government by issuing a Government Order pursuant whereto payment was also made. It is submitted that the aforesaid benefit of revision of pay scale was granted by the State Government by issuing a Government Order pursuant whereto payment was also made. If the State Government has subsequently recalled or withdrawn the aforesaid G.O., the benefit which has already been extended and granted pursuant to which payment was already made cannot now be recovered. 4. On the other hand, learned standing Counsel opposing the prayer vehemently contended that since the G.O. itself by which payment was made has been recalled by the State Government, the petitioner has no right to draw the revised pay scale and payment has rightly been sought to recover. 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 v. Sri Nath Singh and others, 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 Honble Single Judge fell in error by dismissing the writ petition merely on the ground that in the case of Shyam Babu Verma and others v. 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. 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 Honble Single Judge cannot sustain. 7. In the result, the appeal succeeds and is allowed. The judgment of Honble Single Judge dated 27.5.2005 is set aside. The impugned order dated 19.1.1998 directing recovery of excess amount paid to the petitioner pursuant to the G.O. dated 25.3.1994 is hereby set aside. It is further provided that if any amount has already been recovered from the pension and gratuity of the petitioner-appellant, the same would be refunded to him within three months from today. 8. There shall be no order as to costs. ————