IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18268 of 2009 1. DINESH CHANDRA JHA S/O LATE JATESHWAR JHA R/O VILL- AMBARIYA, P.O. RUPHARA, VIA DHAKA, P.S. DHAKA, DISTT. MOTIHARI, PRESENTLY POSTED AS U.D.C. BLOCK OFFICE- KOTWA, EAST CHAMPARAN, MOTIHARI 2. MADAN PD. S/O LATE RAMESHWAR PD. R/O VILL- BHAKUDHAR, P.S. BAIRGANIYA, DISTT. SITAMARHI, PRESENTLY POSTED AS U.D.C. IN THE DISTT. SOCIAL SECURITY OFFICE, EAST CHAMPARAN, MOTIHARI 3. ABDHESH KUMAR S/O LATE YAMUNA PD. CH PRESENTLY POSTED AS U.D.C. BLOCK PHARPUR, P.S. PAHARPUR, EAST CHAMPARAN, MOTIHARI 4. SHASHI RANJAN MISHRA S/O LATE KESHAV MISHRA PRESENTLY POSTED AS U.D.C. BLOCK OFFICE-PIPRA KOTHI, P.S. PIPRAKOTHI, EAST CHAMPARAN, MOTIHARI 5. MOTI LAL DAS S/O LATE BANSI DAS PRESENTLY POSTED AS U.D.C., SUB DIVISION OFFICE, SADAR MOTIHARI, P.S. MOTIHARI, EAST CHAMPARAN, MOTIHARI 6. SHAILENDRA KUMAR S/O LATE SURENDAR PD. PRSENTLY POSTED AS U.D.C. ZILA ABHILEKHAGAR, EAST CHAMPARAN, MOTIHARI, P.S. MOTIHARI, DISTT. EAST CHAMPARAN, MOTIHARI 7. UPENDAR KUMAR SRIVASTAV S/O LATE LAGAN DEO PRASAD VILL & P.O. RAJEPUR NAWADAH, P.S. PAKRIDAYAL, EAST CHAMPARAN, MOTIHARI PRESENTLY POSTED AS U.D.C. IN DISTRICT REVENUE OFFICE, P.S. MOTIHARI, DISTT. EAST CHAMPARAN, MOTIHARI 8. KARUNA SRI MANDAL S/O LATE DWARIKA NATH MANDAL PRESENTLY POSTED AS U.D.C., DISTRICT JAN SIKYAT KOSHANK, DISTT. ESTABLISHMENT, P.S. MOTIHARI, EAST CHAMPARAN, MOTIHARI 9. BASANT DAS S/O LATE RAMESHWAR DAS POSTED AS JILA NAJARAT MOTIHARI, P.S. MOTIHARI, DISTT. EAST CHAMPARAN, MOTIHARI 10. UMRAVATI DEVI W/O LATE MADAN THAKUR POSTED AS U.D.C. IN THE SOCIAL SECURITY CELL (KOSHANK) MOTIHARI, AT SAMAJIK SURAKSHA KOSHANK, P.S. MOTIHARI, DISTT. EAST CHAMPARAN, MOTIHARI 11. RAMAYAN DAS S/O LATE GAJADHAR DAS PRESENTLY POSTED IN JILA VIKASH PRASAKHA AS U.D.C. MOTIHARI, COLLECTRIATE, P.S. MOTIHARI, DISTT. EAST CHAMPARAN, MOTIHARI 12. NILAM KUMARI W/O SUSHIL KUMAR SRIVASTAV PRESENTLY POSTED AS U.D.C. IN DISTRICT ESTABLISHMENT MOTIHARI, P.S. MOTIHARI, DISTT. EAST CHAMPARAN, MOTIHARI 13. MANAI RAM S/O LATE BANSHI RAM PRESENTLY POSTED AS U.D.C. IN THE OFFICE OF JILA GRAMIN VIKASH ABHIKARAN, MOTIHARI COLLECTRIATE, P.S. MOTIHARI, DISTT. EAST CHAMPARAN, MOTIHARI 14. SHATRUDHAN PANDIT S/O JADU PANDIT PRESENTLY POSTED AS U.D.C., DISTRICT NAJARAT MOTIHARI COLLECTRIATE, P.S. MOTIHARI, DISTT. EAST CHAMPARAN, MOTIHARI 15. MOHAMMAD ASLAM KHAN S/O ASHARAF ALI KHAN PRESENTLY POSTED AS U.D.C. AT MOTIHARI CIRCLE OFFICE, MOTIHARI, P.S. MOTIHARI, DISTT. EAST CHAMPARAN 2 16. MOTI RAM S/O LATE MAHANGU RAM PRESENTLY POSTED AS U.D.C. IN DISTRICT ESTABLISHMENT MOTIHARI, P.S. MOTIHARI, DISTT. EAST CHAMPARAN, MOTIHARI 17. VIMAL KISHORE S/O THAKUR PD. SINGH PRESENTLY POSTED AS U.D.C. IN ANCHAL OFFICE KESARIYA, P.S. KESHARIYA, DISTT. EAST CHAMPARAN, MOTIHARI 18. NAVAL KISHORE SINGH S/O SRI VISHUN DEO SINGH PRESENTLY POSTED AS U.D.C. BLOCK TETARIYA, P.S. TETARIYA, DISTT. EAST CHAMPARAN, MOTIHARI 19. PRAMOD KUMAR S/O LATE JAYDEO LAL DAS PRESENTLY POSTED AS U.D.C. IN DISTRICT NAJARAT MOTIHARI, P.S. MOTIHARI, DISTT. EAST CHAMPARAN Versus 1. THE STATE OF BIHAR 2. THE CHIEF SECRETARY GOVT. OF BIHAR, PATNA 3. THE PRINCIPAL SECRETARY FINANCE DEPTT., GOVT. OF BIHAR, PATNA 4. THE PRINCIPAL SECRETARY PERSONNEL AND ADMINISTRATIVE REFORMS DEPTT., GOVT. OF BIHAR, PATNA 5. THE SECRETARY LABOUR EMPLOYMENT AND TRAINING DEPTT., GOVT. OF BIHAR, PATNA 6. THE SECRETARY SOCIAL WELFARE DEPTT., GOVT. OF BIHAR, PATNA 7. THE DIRECTOR SOCIAL SECURITIES, GOVT. OF BIHAR, PATNA 8. THE ADDL. SECRETARY SOCIAL SECURITY DIRECTORATE LABOUR RESOURCES DEPTT., GOVT. OF BIHAR, PATNA 9. THE DIVISIONAL COMMISSIONER TIRHUT DIVISION, MUZAFFARPUR 10. THE COLLECTOR CUM DISTRICT MAGISTRATE EAST CHAMPARAN, MOTIHARI 11. THE DEPUTY SECRETARY FINANCE DEPTT., GOVT. OF BIHAR, PATNA ----------- 4. 13.8.2010 Heard learned counsel for the petitioners and the State. The petitioners were temporarily appointed in 1981-82 and 1982-83 at the District level as Accounts Clerk in the Social Securities Pension Scheme. They were made permanent on 19.4.1989 under the Social Security Pension Old age pension scheme. No separate cadre was created 3 depriving them of promotional opportunities. A cabinet decision was taken on 20.3.2006 to merge the post of Accounts Clerk with that of Upper Division Clerk. This was notified on 25.4.2007. Clause-3(A) states that the 736 Accounts Clerk appointed in the scale 4000-6000/-under the Social Securities Pension Scheme was being merged in the pay scale of 4000-6000 of Upper Division Clerk. Clause 3(B) provides that from the date of merger the conditions of appointment, promotion, service conditions, salary etc. of Accounts Clerk would become the same as U.D.C. Seniority shall be governed by their respective dates of appointment as provided in Clause 3(d). The petitioners are aggrieved by the order dated 21.4.2009 clarifying that the benefits of A.C.P. shall be available to them in the unified cadre only from 25.4.2007 and not prior to the same. Learned counsel for the petitioners submitted that in view of the merger, benefits of 1st and 2nd ACP as U.D.C. was given taking into considerations their past services as Accounts Clerk by order dated 24.12.2008. This has been withdrawn on 9.11.2009, upon clarification by the Finance Department on 21.4.2009, that the benefits of ACP shall be available only after the date of merger i.e. 25.4.2007. It is contended that once a decision for merger of cadres were taken, the purpose was to bring parity in the 4 service conditions. There is no justification to differentiate between the petitioners as Accounts Clerk and Upper Division Clerk now. Counsel for the State submits that the merger takes effect prospectively from 25.4.2007. Prior to that date, the Government in its wisdom decided to protect the seniority based on their dates of appointment. In so far as “other service conditions” mentioned in Clause 3(b) are concerned, and which includes grant of A.C.P., the same is applicable from the date of merger i.e., 25.4.2007. It is apparent that the merger takes effect from 25.4.2007. Prior to that date, the petitioners did not acquire the status of U.D.C. The question of considering them for 1st and 2nd ACP as deemed U.D.C prior to the date of merger thus does not arise. This Court finds no reason to interfere with the recovery sought to be effected from the petitioners by wrong grant of 1st and 2nd ACP. The Court however is satisfied that in the facts and circumstances of the case where there are no allegations of any misrepresentation by the petitioners, and pursuant to merger, the authorities themselves were not clear on the issue requiring issuance of a clarification dated 21.4.2009, it would be unfair to permit lump sum recovery by abrupt revision of their pay scale. The respondents are therefore restrained from making recovery 5 of any payment made to the petitioners and in lieu of the same they are permitted to adjust the excess paid against the future salary of the petitioners in easy instalments. The writ application stands disposed in the aforesaid terms. P. Kumar ( Navin Sinha, J.)