Judgment :- Petitioner challenges the Order of recovery passed by the fourth Respondent and also seeks for a direction to the Respondents to refix his pay on par with his Junior Devasahayam and to pay the differences in pay and pensionary benefits. .2. Brief facts are as follows – Petitioner was appointed on 05.07.1961 and he worked as Secondary Grade Assistant and promoted as Tamil Pandit on 21.01.1982. On scrutiny of pension proposals in respect of the Petitioner, it was noticed that increment was erroneously allowed from 010. 1988 instead of from 01.04.1989. Though pensionary benefits were admitted and authorised in the minimum of the scale of pay of Rs.1600-2900, the Department was instructed to fix his pay correctly and recover the excess paid pay and allowances. Revised proposals, after stepping up his pay as per Rule 4(3) of Tamil Nadu Revised Scales of Ray Rules, 1989, were again received by the fourth Respondent and revised pensionary benefits were admitted on the last pay drawn on Rs.8100/-. Since Department has erroneously allowed increment from 1989 to 1995, consequent on the stepping up of pay, the excess paid pay and allowances were directed to be recovered from the DCRG and that recovery Order is challenged in this Writ Petition. 3. The learned Counsel for the Petitioner interalia contended that while fixing pay, Petitioner has been deprived of the benefits. Placing reliance upon 1995 Supp (1) SCC 18 [Sahib Ram Vs.State of Haryana & others], the learned Counsel further contended that excess paid pay and allowances erroneously paid, cannot be ordered to be recovered. 4. Taking me through the various Government Orders and letters in refixation of pay of scales on par with Juniors, the learned Government Advocate and the learned Counsel for the fourth Respondent have submitted that the conditions, as per Rule FR 22(B) and Rule 4(3) that the pay of the Senior may be stepped up with that of his Junior, are not satisfied in this case. Petitioner was working as secondary Grade Assistant and was promoted as Tamil Pandit from 21.01.1982 and at the option of the individual, his pay in the post of Tamil Pandit was fixed at Rs.640/- in the scale of Rs.450-20-590-25-740-30-800 with effect from 010. 1982, after granting one notional increment on 010. Petitioner was working as secondary Grade Assistant and was promoted as Tamil Pandit from 21.01.1982 and at the option of the individual, his pay in the post of Tamil Pandit was fixed at Rs.640/- in the scale of Rs.450-20-590-25-740-30-800 with effect from 010. 1982, after granting one notional increment on 010. 1982 in the post of Special Grade Secondary Grade and after allowing one notional increment for promotion to the post carrying identical scale of pay. 5. Junior Devasahayam was appointed as Secondary Grade Teacher later, and he was working as Primary School Headmaster as on 01.06.1988. Hence his pay was fixed at Rs.2000-3200 scale as per G.O.138 dated 010. 1990. It is stated in G.O.300, dated 07.04.1994, that scale of Primary School Headmaster was revised as Rs.1200-2040, 1400-2600 and 1640-2900 with effect from 5. 94 and the said G.O. is said to have been stayed by the High Court in W.P.No.8896/94 dated 211. 1994. Since the Petitioner was promoted as Tamil Pandit, which the Petitioner was holding on 6. 88, his pay was fixed in the scale of pay Rs.1400-40-1600-50-2300-60-2600, whereas, the scale of pay that his junior Devasagayam, who was holding the post of Primary School Headmaster post on 6. 1988, was Rs.2000-60-2300-75-3200. .6. As per F.R.23(B) and Rule 4(3) of Tamil Nadu Revised Scales of Pay Rules 1989, pay of the senior may be stepped up with that of his junior only if the following two conditions are satisfied – (i)both senior and junior should belong to the same cadre and the post to which they have been promoted should be the same; (ii)scale of pay of both higher as well as lower post should be identical. Demonstrably in case of Petitioner, both conditions are not satisfied. Petitioner was promoted to the higher post of Tamil Pandit on 21.01.1982 itself. Petitioner and his junior Devasahayam cannot be said to belong to the same cadre. The second condition that scale of pay of both higher as well as lower post should be identical is also not satisfied. Scale of pay of Tamil Pandit post [Ordinary Grade] which the Petitioner was holding on 01.06.1988 was Rs.1400-40-1600-50-2300-60-2600, whereas scale of pay which his Junior Devasahayam was drawing in the Primary School Headmaster [Special Grade] post on 6. 88 was Rs.2000-60-2300-75-3200. Higher pay and scale of pay which the junior happened to get on 6. Scale of pay of Tamil Pandit post [Ordinary Grade] which the Petitioner was holding on 01.06.1988 was Rs.1400-40-1600-50-2300-60-2600, whereas scale of pay which his Junior Devasahayam was drawing in the Primary School Headmaster [Special Grade] post on 6. 88 was Rs.2000-60-2300-75-3200. Higher pay and scale of pay which the junior happened to get on 6. 1988, was by virtue of G.O.Ms.1381 Education dated 010. 1990 whereby, those officials who are officiating as Primary School Headmaster as on 6. 88 became eligible to count the services rendered in the Secondary Grade Post prior to 6. 88 for the award of Selection/Special Grade in the Primary School Headmaster post. Since the Petitioner was promoted as Tamil Pandit [higher post] even before 6. 88, the benefits of G.O.Ms.1381 were not applicable to him. When both conditions are not satisfied, Petitioners salary cannot be stepped up with that of his junior Devasahayam. 7. The learned Counsel for the fourth Respondent has also drawn the attention of the Court to Government letter in Lr.No.90121/PC/96-1 Finance (PC) Department dated 11. 97 wherein it was reiterated that stepping up of pay on par with the junior invoking Rule 27 of FR should not be done if the senior and junior were in different post. In the said letter, Government has clarified that "pay of senior, who is on a higher pay scale cannot be revised on par with pay of his junior, who is in a different lower scale of pay, as there are no provisions under the Tamil Nadu Revised Scale of Pay Rules, 1989 or under Fundamental Rules for such refixation". 8. The learned Counsel for the Petitioner placed reliance upon G.O.Ms.No.238 dated 26. 1998, in which it was directed "that the services in the Selection Grade in Secondary Grade Teachers and other equivalent post shall be counted for the award of selection Grade in B.T. Assistant/ Tamil Pandit post and that concession is allowed only at a promotion level". The Petitioner retired from service on 298. Petitioner has been promoted to the higher post of Tamil Pandit on 21. 82 and thereafter, to the still higher post of Middle School Headmaster on 6. 1996. Hence, the Petitioner cannot claim benefits under the said G.O.Ms.No. 238 dated 26. 88 which is prospective in operation. 9. The Petitioner retired from service on 298. Petitioner has been promoted to the higher post of Tamil Pandit on 21. 82 and thereafter, to the still higher post of Middle School Headmaster on 6. 1996. Hence, the Petitioner cannot claim benefits under the said G.O.Ms.No. 238 dated 26. 88 which is prospective in operation. 9. The learned Counsel for the Petitioner has submitted that pay, which has been fixed erroneously and excess payment on account of the wrong fixation of pay, cannot be ordered to be recovered. Per contra, the learned Counsel for the fourth Respondent placed reliance upon 2000(9) SCC 187 [Union of India and others Vs. Sujatha Vedachalam and another]. That was a case of recovery of excess payment on account of the wrong fixation of pay, Supreme Court has directed recovery in easy installments. Following that decision, a Division Bench of this Court in an unreported decision in W.P.No.3160/2000, has ordered recovery of excess payment in easy instalments. Since the Petitioner is retired from service and is only drawing pension, the ratio in the above decisions cannot be applied to the case of Petitioner. 10. Contending that excess payment cannot be ordered to be recovered, the learned Counsel for the Petitioner placed reliance upon 1995 Supp (1)SCC 18 [Sahib Ram Vs.State of Haryana and others]. In the said decision, Supreme Court has held that benefit of higher pay scale was given to the appellant not on account of any misrepresentation made by the appellant, but by wrong construction made by the Principal, for which the appellant cannot be held to be at fault. Under those circumstances, Supreme Court has ordered that the excess amount paid till date may not be recovered from the appellant. In this case, Petitioner has already retired. In consideration of the facts and circumstances of the case, excess amount paid on account of erroneous fixation of pay may not be recovered from the Petitioner. 11.Since fourth Respondent has authorized minimum of the scale of pay of Rs.1640-2900, to mitigate any financial hardship that may be faced by the Petitioner, Respondents 1 to 3 are directed to fix Petitioners pay correctly, rectifying the mistake pointed out by fourth Respondent. 12.With the above observation, Writ Petition is disposed of. No costs. It is further ordered that excess amount paid to the Petitioner may not be recovered.