IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.942 of 2011 IN Civil Writ Jurisdiction Case No. 11658 of 2006 With Interlocutory Application No. 4274 of 2011 And Interlocutory Application No. 4273 of 2011. ====================================================== 1. The State of Bihar through the Commissioner – cum – Secretary, Water Resources Department, Bihar, Patna, 2. Chief Engineer, Water Resources Department, Bihar, Patna, 3. Superintending Engineer, Waterways Circle, Gaya, 4. Executive Engineer, Waterways Division, Ghoshi (Jehanabad) .... .... Respondents - Appellant/s Versus Satya Narayan Prasad Yadav, son of late Gorakh Prasad Yadav, resident of Village – Bali Bishunpur, P.S. Mashrakh, District - Saran .... .... Petitioner - Respondent ====================================================== Appearance : For the Appellant/s : Mr. Ranjeet Kumar Pandey, AC to GP 21. For the Respondent/s : ----- ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 3 05-07-2011 This appeal under Clause 10 of the Letters Patent is preferred by the State of Bihar and others against the judgment and order dated 28th June 2010 passed by the learned single Judge in above CWJC No. 11658 of 2006. The appeal is filed 244 days beyond the period of Patna High Court LPA No.942 of 2011 (3) dt.05-07-2011 2 / 4 2 limitation. The respondent, a Junior Accounts Clerk, employed by the State Government, filed above CWJC No. 11658 of 2006 against the order of reduction of pay and the recovery of the excess amount made on 21st April 2006. Pending the petition, the respondent retired from service on 31st July 2007. According to the respondent, he was employed as Junior Accounts Clerk. On merger of the post of Junior Accounts Clerk with that of Senior Accounts Clerk, he was paid higher salary of Senior Accounts Clerk which was sought to be recovered under the impugned order dated 21st April 2006. The petition was contested by the State Government. According to the State Government, the petitioner was initially appointed in the Work Charged Establishment. His service was regularized under order dated 28th July 1981. On regularization of service as Junior Accounts Clerk he ought to have been placed in the pay scale of Rs. 535- 765/-. However, he was placed in the pay scale of Rs. 730- 1080/-, the pay scale applicable to the Senior Accounts Clerks. Accordingly, he was given the benefit of revision of pay to the corresponding higher pay scale from time to time. This resulted into over payment since regularization of his service on 28th July 1981. The mistake was noticed as early as in the year 1985 as reflected in the entry made in the service book of the petitioner. Consequently his pay was reduced but was again restored on condition that in case the Pay Anomalies Committee opines otherwise, the excess payment would be recovered. Patna High Court LPA No.942 of 2011 (3) dt.05-07-2011 3 / 4 3 The learned single Judge has held that on merger of the posts of Junior Accounts Clerk and Senior Accounts Clerk, the respondent was entitled to the higher pay of Senior Accounts Clerk. In view of the said finding the learned single Judge quashed the orders of pay fixation and recovery of excess payment. The learned single Judge has also ordered enquiry in respect of certain interpolation made in the service book of the respondent. Therefore, the present appeal. Learned Advocate Mr. Ranjeet Kumar Pandey has appeared for the appellant State of Bihar. He has submitted that the cadres of Junior Accounts Clerk and Senior Accounts Clerk in the Water Resources Department were never merged. It is not a case of merger of cadres as made out by the respondent. It is indeed a case of wrong pay fixation and payment of higher salary. The State Government is, therefore, entitled to recover the excess amount paid to the respondent. He has also submitted that the State Government had issued instructions on 15th June 1999 in respect of the employees in the Work Charged Establishment whose services were regularized in the year 1981. The impugned order of pay fixation is made in consonance with the Government Order dated 15th June 1999. He has also submitted that pursuant to the endorsement made by the Executive Engineer in the year 1985, the salary of the petitioner was reduced. However, he managed to get it re-fixed in the higher pay scale. Be that as it may, what is argued before us is entirely a new case which was not made out before the learned single Judge. In absence of proper pleadings before the learned single Judge we are unable to hold that the learned single Patna High Court LPA No.942 of 2011 (3) dt.05-07-2011 4 / 4 4 Judge has erred nor can the State Government be allowed to make out entirely a new case in the appeal. We are also not satisfied about the cause for delay of 244 days occurred in filing the present appeal. For the aforesaid reasons, the appeal and the interlocutory applications are dismissed. Dilip. (R.M. Doshit, CJ) (Birendra Prasad Verma, J)