IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6659 of 2007 ARJUN SHARMA, son of late Banke Bihari Pandit, resident of village / Mohalla – W.I.C. 10, Yarpur, Police Station – Gardanibagh, District – Patna. Versus 1. THE STATE OF BIHAR. 2. The Secretary, Water Resources Department, Government of Bihar, Patna. 3. The Chief Engineer, Water Resources Department, Anisabad, Patna. 4. The Superintending Engineer, Ganga Sone Flood Protection Circle, Mithapur, Patna. 5. The Executive Engineer, Sone Canal Division, Khagaul, Patna. With CWJC No.13996 of 2007 HARIHAR PRASAD SINGH, son of late Navlakh Singh, resident of B/264, Saket Vihar, Mitra Mandal Colony, Anisabad, Patna, P.S. Phulwari, District-Patna. Versus 1. THE STATE OF BIHAR. 2. The Secretary, Water Resources Department, Government of Bihar, Patna. 3. The Chief Engineer, Water Resources Department, Anisabad, Patna. 4. The Superintending Engineer, Ganga Sone Flood Protection Circle, Mithapur, Patna. ----------- For the petitioners : Mr. Siya Ram Shahi. For the State : Mr. S A Alam, SC IV with Mr. Gautam Kr Yadav, JC to SC IV (In CWJC No. 6659 of 2007) and Mr. Arvind Kumar Ujjwal, SC XI with Mr. Anant Kumar, AC to SC XI (In CWJC No. 13996 of 2007). -------- 02. 25.06.2010 Both the writ applications have common background with regard to facts and law as both the petitioners were working as Head Clerk in the Water Resource Department, Government of Bihar. They have rendered services and have since superannuated. The reason for their approaching the High Court is that the benefit of pay-scale granted to them by virtue of earlier notification issued by the department dated 23.9.2006 (Annexure-6 to CWJC No. 6659 of 2007) and 7.1.2006 2 (Annexure-5 to CWJC No.13996 of 2007), stands subsequently withdrawn by yet another notification, which is Annexure-7 dated 9.5.2007 and Annexure-9 dated 4.12.2007 to the two writ applications. Learned counsel representing the two petitioners submits that the benefit of pay-scale was conferred by the respondent authorities in a decision taken by the so-called Establishment Committee and duly notified by the Chief Engineer from 1.1.96. Petitioners had to approach the High Court when there was some kind of resistance in extending the benefit by the department, to them at a point of time. After the High Court passed its order, which would be evident from Annexure-3 to CWJC No.6659 of 2007, the relevant notification giving benefit was duly notified. Both the petitioners derived benefit not only in terms of pay-scale but also arrears etc. till they almost reached their point of superannuation. A writ application was filed by one Yamuna Prasad claiming discrimination. The department somehow decided to withdraw the benefit from the petitioners to the extent that instead of the higher pay scale being conferred upon the petitioners from 1.1.96, a new date was fixed. In so far as Arjun Sharma is concerned, it was from 1.2.2003 and with regard to Harihar Prasad Singh it was 1.1.2000. The primary submission on behalf of the counsel for the petitioners is that it is not open to the respondents to undo 3 the benefit which came to be conferred on these petitioners not only by a decision of the respondents but by a seal of approval granted by the High Court in the writ applications, which were moved by the petitioners and the position accepted by the respondents at that point of time. In addition to that it is also urged that the deductions and recovery cannot be ordered to be effected from the petitioners without any notice or show cause to them. Unilateral withdrawal of the benefit in the manner in which it has been done, is not permissible as has already been established and held in several decisions which have come to be rendered by the court on this aspect of the matter. Learned counsel representing the petitioners has further brought to my notice a decision rendered in the case of Nirmal Prasad Lal v. State of Bihar and others, which is CWJC No. 7700 of 2007. Learned single Judge vide order dated 21.11.2007 in an identical situation interfered with the decision of withdrawal of benefit from 1.1.96 and the recovery which was ordered to be made from his salary and other retiral dues. For the reasons indicated in the said order the decision of the respondents to effect recovery and re-fix the pay scale was set aside and a direction was issued that necessary refund should be made and the pension etc. would be fixed on the basis of initial fixation of the pay-scale from 1.1.96. The Court would like to reproduce a few observations made by the learned single Judge in the case of Nirmal Prasad Lal, which has relevance to the present 4 dispute: “The hallmark of governmental action is certainty so that a person dealing with the government, more particularly an employee, knows where he stands. The government action smacks of a fillip flop attitude changing decisions at its whims, having financial implications for its employees, more particularly when they have superannuated and are in the evening of their life. This is a stage when every rupee count for an employee as he is not left with no source of income. In the present case it is not the contention of the respondents that the petitioner was not entitled to the scale or that he obtained the same by mis representation. On the contrary, what this Court finds is that the matter was examined by the respondents more than once, additional orders were passed, reconfirmation was done obviously satisfied that the conditions were fulfilled. The respondents in their wisdom have only arrived at the finding that he was entitled to the benefit from a particular date and not 5 from the date when they had earlier granted and in pursuance of which repeated orders have come and financial benefits had been released. The grounds urged in the counter affidavit, to this Court, remains in the realm of speculation and certainly do not make out a legal ground to effect recovery from the petitioner. In any event the impugned order suffers from the same vice as noticed in CWJC No. 13547/2001 inasmuch as no notice has been issued to the petitioner before the recovery of the impugned amount.” Learned Standing Counsel No.IV vehemently opposed the writ applications and justified the action of the respondents on the ground that certain senior persons like Yamuna Prasad, claim for grant of higher pay-scale was overlooked at that point of time. When he approached the High Court with his grievance and claim in CWJC No. 4691 of 2006 the matter was relooked into and a decision was taken not only to confer benefit on the so-called seniors who were left out but also re-adjust the seniority of the persons who could be given the said benefit. The tinkering of the date from which the benefit would accrue to the petitioners had to be made on the bonafide circumstance and in this view of the matter there is no occasion 6 for interfering with the impugned orders which have been passed against the petitioners. There could have been occasion for this Court to consider the submission of the counsel representing the State provided two factors were not available before the court – (1) that benefit which was conferred upon the petitioners was covered by a judicial direction or order passed in the case filed by them. If this Court allows the State to sustain the impugned orders, it will amount to nullifying the effect of the judicial orders for which the executives do not have the authority. If the State was not satisfied with the consequence of the earlier judicial orders they had appropriate remedy available within the parameters of law and procedure but having failed to adopt such a procedure, this Court has reservation in allowing the State Government to undo the benefit of a judicial order which has already accrued to the two petitioners. The other aspect which also must be noted is that in identical facts and situation yet another employee namely, Nirmal Prasad Lal was extended relief by the Court as noted above and the decision of the respondents had been undone by the said order passed by the learned single Judge. Since the petitioners are in identical situation they cannot be dealt with another judicial yardstick. They cannot be denied benefit when similar situation, factually and legally exists. In view of the above stated circumstances the 7 impugned orders dated 9-5-2007 (Annexure-7 to CWJC No. 6659 of 2007) and 4.12.2007 (Annexure-9 to CWJC No.13996 of 2007) stand quashed. Both the writ applications are allowed. It is hereby clarified that if any deductions have already been effected pursuant to the impugned orders, respondents have an obligation to refund or make adjustment as the case may be within a period of three months from the date of communication/production of a copy of this order. It is also clarified that pension and other retiral dues of the petitioners would be fixed in accordance with the initial fixation in the higher pay scale of Rs.5000 – 8000 from 1.1.1996 and not from the modified date. rkp ( Ajay Kumar Tripathi, J )