JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner is working as a Noter and Dafter in U.P. Jal Nigam. He is aggrieved by the order dated 6.5.2008 passed by the Executive Engineer, whereby his pay fixation has been made and a direction has been issued to recover the excess amount of Rs. 86,966/- from his salary. 2. Briefly stated, the facts of the case are that the petitioner was appointed as a Noter and Daftari on ad-hoc basis in the year 1985. Initially, his pay scale was 1200-30-1560 EB -40-20-2040 and after completion of 10 years in the year 1995 by an order dated 2.11.1996 passed by the Chief Engineer,(First) U.P. Jal Nigam, Lucknow, has sanctioned him Rs. 1350-30-1440-40-1800-EB-50-2200. It is stated that in compliance of the recommendation of the pay commission with effect from 1.1.1996, such pay scale was revised to Rs. 4500-125-7000/- and as such from 1.1.1996, he started getting pay scale of Rs. 4500-7000. It is stated that after completion of 14 years of service, he was sanctioned the next higher pay scale of Rs. 5000-8000/- as provided in Government Order dated 2.12.2000 and 10.4.2001. Those Government Orders have been made applicable to the employees of the U.P. Jal Nigam also. It is stated that by means of order dated 6.5.2008, the Executive Engineer, Nirman Khand, U.P. Jal Nigam, had revised the petitioner’s pay scale with retrospective effect to his prejudice and had issued a direction for recovery of the alleged excess amount from his salary. 3. Feeling aggrieved by the said order dated 6.5.2008, the petitioner made representation dated 21.5.2008 to the Executive Engineer, Nirman Khand, U.P. Jal Nigam, Farrukhabad and a similar representation was also given by him on 12.7.2007 to the Managing Director, U.P. Jal Nigam, but no action has been taken by them. Having no option left, the petitioner preferred this writ petition. 4. The respondents have filed a counter-affidavit. The stand taken by them in the counter-affidavit is that the petitioner was appointed as Routine Grade Clerk in the office of U.P. Jal Nigam. His services were regularized on 11.3.1986. Later on, vide order dated 11.2.1998, he was made permanent on the post of Junior Noter Drafter. A copy of the said office memo has been placed on record by the petitioner as annexure- C.A. 2 to the counter-affidavit. His services were regularized on 11.3.1986. Later on, vide order dated 11.2.1998, he was made permanent on the post of Junior Noter Drafter. A copy of the said office memo has been placed on record by the petitioner as annexure- C.A. 2 to the counter-affidavit. It is alleged in the counter-affidavit that the petitioner has fixed his pay scale himself without completing 14 years of satisfactory service. 5. I have heard Sri Arun Kumar, learned counsel for the petitioner and Sri R.C.Gupta for the respondent No. 3 and perused the record. Learned counsel for the petitioner submitted that pay fixation of the petitioner was made in pursuance of the order of the Chief Engineer on 2.11.1996 and there is no allegation of misrepresentation or fraud. He further submits that the impugned order is erroneous and has illegally fixed his pay scale and his representation made by him against the wrong pay fixation dated 6.1.2008 and the annexure Nos. 3 and 4 to the writ petition had not been considered. 6. Sri Gupta, learned counsel for the respondent No. 3 submits that the petitioner was maintaining his service record himself and he was instrumental in sending wrong information with regard to his services rendered by him and on the basis of wrong information sent by him the mistake had been rectified by order dated 6.5.2008. 7. The petitioner is working in the department since 1985 and he has stated the Chief Engineer (Ist, U.P. Jal Nigam) has granted him higher pay scale Rs. 1350-30-1440-1800-EB 2200/-. This fact has not been denied by the respondents in paragraph No. 11 of the counter-affidavit. In the counter-affidavit except vague allegation that the petitioner was instrumental, there was no allegation that he had made any misrepresentation or fraud. No document has been placed on record alongwith the counter-affidavit to establish that it was the duty of the petitioner to fix his pay scale himself. There is no material on record that the petitioner has made any misrepresentation or fraud in his pay fixation. 8. It is a trite law that if the employee is not guilty of misrepresentation or fraud then excess amount paid to him should not be recovered. The reference may be made to judgment of Supreme Court in Syed Abdul Qadir and others v. State of Bihar and others, (2009) 3 SCC 475 . 8. It is a trite law that if the employee is not guilty of misrepresentation or fraud then excess amount paid to him should not be recovered. The reference may be made to judgment of Supreme Court in Syed Abdul Qadir and others v. State of Bihar and others, (2009) 3 SCC 475 . The relevant portion of the judgment reads as under; “57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.” “58. The relief against recovery is granted by Courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, Courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess.........” 9. This Court also in the case of Ram Briksha Ram v. State of U.P. and others, in Writ Petition No. 61045 of 2005 held that after a long lapse of time, the recovery of excess amount, when there is no allegation of misrepresentation or fraud against the employee, is not justified. The Division Bench has considered the several judgments of Supreme Court on this issue. The similar view has been taken by this Court in the case of Sita Ram Vs. State of U.P. in Writ Petition No. 41775 of 2008. 10. As regards to the submission of learned counsel for the petitioner that his representation has not been considered, I find a considerable force in his submission. The petitioner has placed his representation on record as annexure Nos. 3 and 4 to the writ petition. In the impugned order, there is consideration of his representation. 10. As regards to the submission of learned counsel for the petitioner that his representation has not been considered, I find a considerable force in his submission. The petitioner has placed his representation on record as annexure Nos. 3 and 4 to the writ petition. In the impugned order, there is consideration of his representation. From perusal of the impugned order dated 6.5.2008, so far as the recovery is concerned, it is set aside as respondents have failed to establish that the petitioner is guilty of any misrepresentation or fraud. The petitioner is a class III employee. The recovery of such huge amount would be excessively harsh. As regards to the submission of learned counsel for the petitioner that by the order dated 6.5.2008 incorrect pay fixation has been made and the representation of the petitioner has not been considered by the respondent No. 2, the petitioner is at liberty to pursue his representation before the authority concerned who shall consider his representation and pass a fresh order in accordance with law within three months from the date of communication of this order. The writ petition is partly allowed. No order as to costs. ——————