IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10895 of 2005 S.M.SOHAIL, son of Syed Saifuddin, resident of Mohalla – Fakir Bara, Daryapur, P.O. Bankipur, P S – Pirbahore, District – Patna, Pin code – 800 004, at present posted as Head Clerk, Western Kosi Canal Division, Khajauli, District – Madhubani. Versus 1. THE STATE OF BIHAR. 2. The Commissioner cum Secretary, Department of Irrigation, Government of Bihar, Sichai Bhawan, Harding Road, Patna - 800 015. 3. The Engineer-in-Chief, Department of Irrigation, Government of Bihar, Sichai Bhawan, Harding Road, Patna. 4. The Under Secretary, Deaprtment of Irrigation, Government of Bihar, Sichai Bhawan, Harding Road, Patna. 5. The Chief Engineer, Water Resources Department, Irrigation, Darbhanga. 6. The Superintending Engineer, Wester Kosi Canal Division, Khajauli, Distinct – Madhubani. 7. The Executive Engineer, Western Kosi Canal Division, Khajauli, District – Madhubani. ----------- 04. 3.9.2010 Writ was filed in the year 2005 when order dated 7.5.2005 contained in Annexure-17 came to be passed by the Chief Engineer, Water Resources Department, Darbhanga, detrimental to the interest of the petitioner. This order has been passed on the direction of the High Court, issued earlier to the respondents, to pass a speaking order. During the pendency of the writ application petitioner has superannuated on 31st December, 2008. Petitioner was working on the post of correspondence clerk and had come to earn certain promotions and pay-scale during his service period. Prior to passing of the impugned order petitioner was working as a head clerk and was drawing a pay scale of Rs.4500-7000 which was taken to be the revised pay-scale in terms of the recommendation of the Pay Commission. But this pay-scale became the subject matter of dispute on due scrutiny by the high-ups when the 2 service record was placed before them. When the pay-scale of the petitioner was sought to be reduced to Rs.4000-6000, petitioner came before this Court in a writ application which was disposed of with a direction upon the competent authority to pass a speaking order on the issue. The speaking order is under challenge. It is required to take note of the reasoning given in the speaking order because the issue raised by the petitioner emerges from the same. The Chief Engineer has categorically recorded in his speaking order that after coming into effect of the 6th Pay Revision recommendation w.e.f. 1.1.1996, the earlier mechanism of granting time-bound promotion or benefit of Junior Selection Grade, Senior Selection Grade or Super Time Scale came to an end. Replacement scales have been given to the various posts and for some of the posts it was categorically recommended by the Pay Commission that such post would be continued on the basis of what was termed as „need based”. Those posts could be continued after 1.1.1996 and the benefit of the earlier pay-scale could continue provided the employee came within the zone of seniority. All those posts were identified on the basis of “need based” because these posts were ultimately to vanish after retirement of the employee holding the post. When the petitioner was given the benefit in the year 1997 i.e. after 1.1.1996, petitioner was not within the zone of seniority of such employees who could be given the benefit of higher pay-scale of Rs.4500-7000. When this anomaly was discovered, a chain of 3 litigations started and has now culminated in passing of the speaking order. The Chief Engineer has very categorically held that the benefit of higher scale given to the petitioner by the respondents will be to re-worked to 1.6.2000 because that is the date when petitioner gained seniority and came within the ambit of „need based‟ post who could be given the benefit of higher pay scale. It is not disputed that this benefit has been conferred upon the petitioner from 1.6.2000 but the issue is the period prior to 1.6.2000, when petitioner had been wrongly given benefit of the higher pay scale in the teeth of the direction of the Pay Revision Committee, which came into effect from 1.1.1996. Learned counsel for the petitioner submits that the benefit of promotion has accrued to the petitioner on the basis of a decision taken by the respondents and the same cannot be undone subsequently to his detriment. He submits that even the order of recovery which has been made by way of the speaking order cannot be sustained because this benefit of promotion was not obtained by any fraud or misrepresentation on his part. Even otherwise the petitioner has superannuated and it will have serious consequence upon him. So far as recovery part is concerned, petitioner submits that there are decisions of this Court including a recent decision of the Hon`ble Supreme Court rendered in the case of Syed Abdul Qadair and others v. State of Bihar and others, reported in 2009 (2) PLJR 74 (SC) to support him. On the aspect of taking away the benefit of higher pay- 4 scale from the petitioner, reliance is placed on so-called para-11 of Annexure-18 which, according to the petitioner, comes in his support. Having perused the affidavits and considered the submissions, the Court has no hesitation in recording that so far as recovery part of the matter is concerned, the same cannot be effected against the petitioner and the ratio rendered in the case of Syed Abdul Qadir and others (supra) does come to the aid of the petitioner. To that extent the impugned order stands quashed. Since there was an order of stay operating in favour of the petitioner in this writ application, which would be evident from the order dated 18.5.2006, therefore, the Court presumes that no recovery has been made in the meanwhile. If that is so, no recovery would be made in future as well on this score. So far as applicability of para 11 of Annexure-18 is concerned, the Court has reservation in accepting the plea of the petitioner that it has application to his case. The Court categorically holds that para 11 of the said recommendation does not apply to the case of the petitioner. The petitioner came to be given benefit of promotion after 1.1.1996 when the same could not have been given or if at all, it could be given, it could be given only in a limited circumstance, i.e. after identifying the „need based‟ posts and seniority of the employee in question. Since the respondents have agreed to give benefit of higher pay-scale from 1.6.2000, the earlier benefit to that extent can not stay with the petitioner and the new pay-scale will have to be re-worked from 1.6.2000. The fall-out thereof will not be on his service since he has a retired but may be in fixation of his pension etc. 5 The writ application is allowed in part, only to the extent indicated above. No interference is warranted with regard to re-fixation of pay-scale from a later date. rkp ( Ajay Kumar Tripathi, J.)