IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9208 of 2008 ARUN KUMAR SINHA, SON OF LATE PARMESHWAR DAYAL, RESIDENT OF VILLAGE/P.O. BAIKATHPUR, P.S. KHUSRUPUR, DISTT. PATNA. Versus 1. THE STATE OF BIHAR, THROUGH THE SECRETARY, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 2. THE SECRETARY, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. THE JOINT SECRETARY, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 4. THE SECRETARY, FINANCE DEPARTMENT, GOVT. OF BIHAR, PATNA. 5. THE DEPUTY SECRETARY, FINANCE DEPARTMENT, GOVT. OF BIHAR, PATNA. 6. BIHAR STATE CONSTRUCTION CORPORATION LIMITED, KHWAZA IMLI, ANISABAD, PATNA-800002, THROUGH ITS MANAGING DIRECTOR. 7. THE MANAGING DIRECTOR, BIHAR STATE CONSTRUCTION CORPORATION LIMITED, KHWAZA IMLI, ANISABAD, PATNA-2. 8. THE SECRETARY-CUM-ADMINISTRATIVE OFFICER, BIHAR STATE CONSTRUCTION CORPORATION LIMITED, KHWAZA IMLI, ANISABAD, PATNA- 2. With CWJC No.9324 of 2008 DINESH PRASAD SHARMA, SON OF SRI PARAS PRASAD SINGH, RESIDENT OF CHAKMUNNI, P.O. MADHOPUR, P.S/DISTT. VAISHALI. Versus 1. THE STATE OF BIHAR, THROUGH THE SECRETARY, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 2. THE SECRETARY, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. THE JOINT SECRETARY, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 4. THE SECRETARY, FINANCE DEPARTMENT, GOVT. OF BIHAR, PATNA. 5. THE DEPUTY SECRETARY, FINANCE DEPARTMENT, GOVT. OF BIHAR, PATNA. 6. THE DIRECTOR-CUM-JOINT COMMISSIONER, ACCOUNTS ADMINISTRATIION, PROVIDENT FUND DIRECTORATE, BIHAR, PATNA. 7. THE DISTRICT PROVIDENT FUND OFFICER, ROHTAS(SASARAM). 8. THE DISTRICT PROVIDENT FUND OFFICER, MUZAFFARPUR. 9. BIHAR STATE CONSTRUCTION CORPORATION LIMITED, KHWAZA IMLI, ANISABAD, PATNA-800002, THROUGH ITS MANAGING DIRECTOR. For the Petitioners : Mr. Sidhendra Narayan Singh, Advocate. For the State : M/s Sunil Kumar, AC to GA-4, Sanjay Prakash Verma, AC to GA-5. For the Corporation : M/s R.K. Shukla, G.N. Shukla, Advocates. ----------- 04. 12.07.2010. Heard learned counsel for the petitioners, the State and the counsel for the Bihar State Construction Corporation Ltd.(hereinafter referred to as the Corporation). 2. Petitioners in the two writ application(s) are the employees of the Corporation. They aggrieved by the instructions of the Water Resources - 2 - Department contained in sub-paragraph-‘cha’ of paragraph-5 of letter No.1253 dated 27.8.1997, Annexure-11, whereunder it has been observed that grant of higher scale of Rs.348-570/- to the lower division assistant in place of lower scale of Rs.220-315/- is not as per the Rule and they were erroneously allowed the higher scale of Rs.348-570/- instead of Rs.220-315/- . 3. It is submitted on behalf of the petitioners that aforesaid direction is contrary to the instructions of the Finance Department of the State Government contained in letter No.3734 dated 7.4.1977, Annexure-1, whereunder the scale admissible to the lower division/upper division assistants i.e. Rs.260-408/- and Rs.348-570/- were merged and the assistants serving in the lower division were also allowed the higher scale of Rs.348- 570/- with effect from 1.3.1977. The instruction of the Government to merge lower scale of Rs.260-408/- with the higher scale of Rs.348-570/- was also applicable to the employees of the Corporation as would appear from the Government decision contained in letter No.6200 dated 27.4.1979, Annexure-5, whereunder circular letter No.3734 dated 7.4.1977, Annexure-1 was made applicable to the employees of the Corporation. In the light of the instruction contained in letter dated 27.4.1979, Annexure-5 the employees of the Corporation serving as lower division assistants were allowed the higher scale under office order No. 1039 dated 24.4.1980, Annexure-6. Petitioners, however, were not granted the higher scale, whereafter they made representation before the authorities of the Corporation and the authorities of the Corporation having considered the request of the petitioners for grant of higher scale passed office order bearing letter No.2782 dated 10.11.1987, - 3 - Annexure-7 in compliance thereto petitioners were allowed the higher scale of Rs.580-860/- as also the corresponding higher scale in the subsequent revision but not the scale of Rs.348-570/- with which the lower scale of Rs.260-408/- was merged. In compliance of the office order dated 10.11.1987, Annexure-7 the two petitioners were allowed the scale of Rs.580-860/- under office order dated 18.12.1987 and the corresponding higher scale under office order dated 10.8.1988, Annexures-8 and 9. Under Sub-paragraph ‘cha’ of paragraph-5 of the impugned order dated 27.8.1997, Annexure-11 it has been held that lower division assistants who were in the scale of Rs.220-315/- were erroneously granted the scale of Rs.348-570. 4. Learned counsel for the petitioners submitted that aforesaid observation in Sub-paragraph-‘cha’ of paragraph-5 of order dated 27.8.1997, Annexure-11 is in teeth of the instruction of the Finance Department of the State Government contained in letter No.3734 dated 7.4.1977, Annexure-1 and in the light of the instruction of the Finance Department petitioners were entitled for grant of higher scale of Rs.348-570/- with effect from 1.3.1977 as the scale admissible to the lower division assistant was merged with the higher scale payable to the upper division assistants. 5. Counsel for the State in C.W.J.C. No.9324 of 2008 having filed counter affidavit duly affirmed by the District Provident Fund Officer has opposed the prayer. He states that the two petitioners were erroneously allowed the higher scale of Rs.348-570 in lieu of lower scale of Rs.220-315/- and in the light of the instructions contained in Sub-paragraph- ‘cha’ of paragraph-5 of the impugned order dated 27.8.1997, Annexure-11 the erroneous grant of higher scale to the petitioners is required to be corrected - 4 - and the amount paid in excess is to be recovered. 6. From the pleadings made in the counter affidavit it does not appear that instruction of the Finance Department contained in letter No.3734 dated 7.4.1977, Anneuxre-1 was ever recalled or modified, in the circumstances, the contents of Sub-paragraph-‘cha’ of paragraph-5 of the impugned order that lower division assistants were entitled for grant of lower scale of Rs.220-315/- and not the higher scale of Rs.348-570/- with effect from 1.3.1977 appears to be contrary to the instructions of the Finance Department contained in letter No.3734 dated 7.4.1973, Annexure-1. Accordingly, I have no option but to quash the contents of Sub-paragraph- ‘cha’ of paragraph-5 of letter No.1253 dated 27.8.1997, Annexure-11 with observation that petitioner Arun Kumar Sinha of C.W.J.C. No.9208 of 2008 having retired his retiral dues be calculated and paid in the light of my observation aforesaid that he is entitled for grant of higher scale of Rs.348- 570/- with effect from 1.3.1977 until further revision. Petitioner Dinesh Prasad Sharma of C.W.J.C. No.9324 of 2008 be also allowed the scale of Rs.348-570 with effect from 1.3.1977 until further revision. The office order directing recovery on the basis of Annexure-11 contained in memo No.1946 dated 1.12.1999, Annexure-14 of C.W.J.C. No.9324 of 2008 is also quashed with further direction to the authorities of the Corporation to pass appropriate order in the light of this order. 7. With the observation and direction aforesaid the two writ application(s) are disposed of. Rajesh/ (V.N.Sinha, J.)