Judgment :- Petitioner seeks writ of certiorarified Mandamus to quash the proceedings of the 3rd Respondent dated 12.03.2004 and to direct the Respondents to refix the scale of pay which was implemented with effect from 011. 1980 and to pay the Petitioner the with held amount of Rs.43,761/-. 2.Brief facts which led to the filing of the writ petition are as follows: (i) Petitioner initially joined as Temporary Casual Labour and subsequently promoted to various post and finally promoted to the post of Junior Engineer/Electrical Grade-II. Petitioner passed Electricity Departmental Account Test examination conducted by Tamil Nadu Public Service Commission. The Petitioner was sanctioned one advanced incentive increment for having passed the test with effect from 011. 1980. (ii) The Petitioner was further promoted to the post of Junior Engineer,Grade-I/Electrical on 012. 1982, the Petitioner was given liberty to choose beneficial option for fixation of pay in the higher post of Junior Engineer/Grade-I, either in the work load post or in the date of joining in the higher post on 012. 1982. The Petitioner had exercised his option for fixation of pay in the higher post with retrospective effect from 01.04.1980, and his pay was fixed in the higher post at Rs.680/-from 01.04.1980 in the higher scale of pay of Rs.680-40-800-50-1000-1180.. (iii) The Petitioner was promoted as Assistant Executive Engineer and retired on 31.03.2003, on attaining age of superannuation. It was found that the incentive increment given to the Petitioner in the post of Junior Engineer/Grade-I/Electrical was contrary to the instructions of the Board. By order dated 110. 2001, the Petitioners pay was refixed and recovery was ordered. Challenging the same Petitioner filed W.P.No.22935/2001. Since order of re-fixation of pay and recovery was made without prior notice to the Petitioner, this court has allowed the writ petition giving liberty to the 3rd Respondent to refix the pay of the Petitioner after giving opportunity by way of Show Cause Notice. (iv) In pursuance of the direction of the court, Show Cause Notice dated 112. 2003, was issued to the Petitioner calling upon him as to why his pay should not be refixed and after considering the representation submitted by the Petitioner the impugned order dated 12.03.2004, was passed refixing the pay of the Petitioner and ordering the recovery of excess amount of Rs.43,761/-. 3. 2003, was issued to the Petitioner calling upon him as to why his pay should not be refixed and after considering the representation submitted by the Petitioner the impugned order dated 12.03.2004, was passed refixing the pay of the Petitioner and ordering the recovery of excess amount of Rs.43,761/-. 3. Challenging the impugned order the learned counsel for the Petitioner, Mr.P.Raja, has contended that after passing of Account Test conducted by the Tamil Nadu Public Service Commission, the Petitioner has made disclosure of all relevant facts while exercising his option for the post of Junior Engineer/Grade I (Elec) Work load post and the incentive increment was sanctioned as per the rules existing. Learned counsel further submitted that the impugned order of recovery have been passed after a lapse of twenty years and the delay vitiates the entire proceedings. The learned counsel would also submit that the option work load was not only given to the Petitioner but also for the employers who had passed the account test and therefore the impugned order dated 12.03.2004, is arbitrary and illegal. 4. The learned counsel for the Respondents Mr.B. Sekar, has submitted that the incentive increment given to the Petitioner in the post of Junior Engineer/Grade-II/Electrical was contrary to the instructions of the Board and the Petitioner was not eligible to draw the incentive increment and when the mistake was found out, the same was rectified. Learned counsel for the Respondent further submitted that since there was a mistake in the refixation of pay of the Petitioner, it has become necessary to recover the excessive increment as the Petitioner was ineligible for incentive increment. 5. The Petitioner was sanctioned one advanced incentive increment for having passed the account test with effect from 011. 1980, but the Petitioner had given his option for fixation of pay in the higher post as if he had been promoted to such higher post with effect from 01.04.1980. Since the Petitioner had exercised his option for fixation of pay in the higher post at Rs.680/-. The Petitioner was not eligible for incentive increment from 011. 1980. 6. As per the orders issued by the Board in Letter No.99307/E8-2/91-30 (Adm.Branch) dated 23.07.1994., "If anybody claims incentive increment , he may deemed to be promoted from the next date of acquiring qualification". The Petitioner was not eligible for incentive increment from 011. 1980. 6. As per the orders issued by the Board in Letter No.99307/E8-2/91-30 (Adm.Branch) dated 23.07.1994., "If anybody claims incentive increment , he may deemed to be promoted from the next date of acquiring qualification". Since incentive increment was wrongly sanctioned in the higher post of junior Engineer/Grade-I/electrical, the same has been with drawn, therefore the recovery has become necessary as he was ineligible for the incentive increment. When the mistake was found out the same was rectified by the Respondents. Since the sanction of incentive increment was contrary to the rules recovery has become necessary. When there was wrong fixation of pay the same cannot be challenged. 7. For the period from 011. 80 to 31.03.2003, the amount of Rs.43761/- was ordered to be recovered from the retiral benefits and accordingly the same was deducted. The learned counsel for the Petitioner has contended that there was a wrong fixation of pay and received the higher scale of pay due to wrong fixation and while so it would not be just and proper to recover any excess amount already paid to the Petitioner. 8. Restraining the order of recovery of excess payment which was given due to wrong construction of relevant order by the authority concerned, in 1995 Supp(1) Supreme Court Cases 18, Sahib Ram Vs. State of Haryana and Others, the Honble Supreme Court has held as follows: "....5.Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant." 9. In (1994) 2 Supreme Court Cases 521 Shyam Babu Verma and others vs. Union of India and others, higher pay scale erroneously given to Petitioners since 1973. Under the circumstances the amount paid till date may not be recovered from the appellant." 9. In (1994) 2 Supreme Court Cases 521 Shyam Babu Verma and others vs. Union of India and others, higher pay scale erroneously given to Petitioners since 1973. Observing the Petitioners received the higher scale of pay due to no fault of theirs, it shall only be just and proper not to recover any excess amount already paid to them. The Honble Supreme Court has held that the Petitioners 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 Honble Supreme Court directed 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. 10. The ratio of the above decisions are squarely applicable to the present case. Though sanctioning of incentive increment was erroneous which resulted in wrong fixation of pay, the Petitioner was in no way responsible for such wrong fixation. Insofar as the recovery of Rs.43761/- the impugned order cannot be sustained. 11. In the result the writ petition is partly allowed and the impugned order is set aside partly to the above said extent. 12. Insofar as the recovery of Rs.43761/-from the DCRG of the Petitioner the amount of Rs.43761/- deducted is ordered to be paid to the Petitioner. Insofar as the order of fixation of pay of the Petitioner there is no reason for interference. The correct fixation of pay as per the impugned order shall form the basis for calculating pension and other benefits payable to the Petitioner.