IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 3157 of 2005 Arun Kumar Mishra, son of late Kula Nand Mishra, resident of Village – Prasadi Tola, P S – Jaley, District – Darbhanga- Petitioner Versus 1 The State of Bihar through Secretary, Minor Irrigation Department, Bihar, Patna 2 The Secretary, Minor Irrigation Department, Government of Bihar, Patna 3 The Project Co-ordinator, Water Resources (Minor Irrigation) Department, Bishweshwaraiya Bhawan, Bailey Road, Patna 4 The Superintending Engineer, Tube Well Circle, Darbhanga 5 The Executive Engineer, Tube Well Division, Samastipur- Respondents *** For the petitioner : Mr Keshav Srivastava, Sr Advocate with Mr Durga Nand Jha, Advocate For the S t a t e : Mr Shailendra Kumar Jha, AC to SC 9 *** 13 13.12.2010 The petitioner was a Clerk in the Water Resources Department (Minor Irrigation), Government of Bihar. With effect from 01.04.1973, petitioner was posted as temporary Head Clerk (UDC) Selection Grade as is evident from Annexure-2. Petitioner was given increment by the Tube well Division as is evident from Annexure-2/A in the year, 1976 treating him to be the Head Clerk with replacement pay scale and selection grade replacement pay scale. He was deputed to the Bihar Water Development Corporation and subsequently upon the said Corporation going for voluntary winding up with effect from 1986, he was sent to the Finance Department. He protested and filed writ petition in this Court being CWJC No 6073 of 1991 and Division Bench of this Court held that as he was of the Parent Department of Minor Irrigation, he could not be sent to the Finance Department and must be taken back. Thus, during the period, inter alia 1981 to 1986, the petitioner remained 2 with the said Corporation on deputation but it is in that period pursuant to recommendations of the 04th Pay Revision Committee’s Report, he became entitled to various increments. It appears by Memo No 467 dated 26.04.1990 (Annexure-5), the Managing Director of the said Corporation which, as noted above, was under liquidation issued a general order with regard to implementation of the Pay Revision Commission’s recommendations. It noted that those persons, who were Head Clerks prior to 01.01.1976 before coming to the Corporation, would thus be entitled to Senior Selection Grade. This communication is the bone of contention in the present case. Originally, in the counter affidavit, a stand has been taken by the State that after petitioner was disengaged from the said Corporation and after the Corporation was going into voluntary winding up, the Managing Director could not have passed such an order and the same was not even approved by the Department of Water Resources. It was, thus, ineffectual and petitioner should not have been granted this relief. It is this stand which has affected the petitioner and after his superannuation, his pay scale and pensionary benefits are being reduced and substantial amount being sought to be recovered. In response to the said stand in the counter affidavit, petitioner has filed his reply. In reply, he has brought on record letter No 853 dated 10.05.1991 of the Executive Engineer, Tube Well Division which is the Parent Department of the petitioner specifically approving the letter dated 26.04.1990 (Annexure-5) as issued by the Managing Director of the Corporation in respect of the petitioner. This is Anexure-21. Thus seen, the order of the Managing Director of the Corporation was approved by the Department. 3 It was, accordingly, acted upon. It is this that is being sought to be taken back with consequential effect. In my view, this cannot be done more so at this late stage long after petitioner’s superannuation. In the counter affidavit or the supplementary counter affidavit, State has not taken the stand that petitioner was in fact not entitled to the increment as granted. Their stand basically was that Managing Director of the Corporation could not have granted those increments firstly because petitioner was merely on deputation to the Corporation and secondly when the Managing Director did grant those benefits, it granted without approval of the Parent Department of the petitioner. In my view, a reference to the order of approval as contained in Annexure-21 would clearly establish that what was being done by the Managing Director and what was approved was implementation of the 04th Pay Revision Committee’s report which was enforced with effect from 30.12.1981. During that period, petitioner was in the Corporation. Apparently, the benefits were not at that time. The benefit was now being given with approval of the Department for the period 01.04.1982 to 01.04.1986 which is the period during which petitioner was with the Corporation. As noticed above, it is stated in the counter affidavit that had the petitioner been working in his Parent Department, he would not have been entitled to this increment. That being so and the increment having been approved by the Department, in my view, the impugned of the Project Coordinator as contained in Memo No 14 dated 04.02.2005 (Annexure-1) cannot be sustained. The impugned order makes a wrong reference to the facts as 4 well which need be noticed. It gives an impression that petitioner was granted increment when petitioner ceased to be employee deputed in the Corporation. That is wrong. The increment would show that it was being given for the period 1982 to 1986 when he was undisputedly in the Corporation and it was duly approved as such. Thus, in my view, the action of the State in reducing the pay scale of the petitioner consequently the pensionary benefits and recovering the excess payment made from his pension and that too long after his superannuation cannot be sustained. Annexure-1 is, accordingly, quashed. The original pay scale of the petitioner is restored. It is tragic that even though petitioner was not at fault, his pension has been totally stopped from October, 2003 purporting to be for the purposes of recovery of excess paid during his service tenure for which, as noticed above, petitioner was not responsible. Thus, I direct that the pension be resumed at the scale as originally fixed without heed being given to the communication, as contained in Annexure-1. The writ petition stands disposed of. M.E.H./ (Navaniti Prasad Singh)