IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3502 of 2008 1. ASHWINI KUMAR CHANCHAL, SON OF LATE KALESHWAR SINGH, RESIDENT OF VILLAGE LODIPUR, P.S. JEHANABAD, DISTRICT JEHANABAD. 2. KAPIL PRASAD, SON OF LATE AITWAR MAHTO, RESIDENT OF VILLAGE DOSUT, P.S. BENA, DISTRICT NALANDA. ------------------------------------------------------------------------------------------ PETITIONERS Versus 1. THE STATE OF BIHAR, THROUGH THE COMMISSIONER-CUM-SECRETARY, PUBLIC HEALTH ENGINEERING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2. THE ENGINEER-IN-CHIEF, PUBLIC HEALTH ENGINEERING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE SUPERINTENDING ENGINEER, PUBLIC HEALTH ENGINEERING DEPARTMENT, GAYA CIRCLE, GAYA. 4. THE EXECUTIVE ENGINEER, PUBLIC HEALTH ENGINEERING DEPARTMENT, JEHANABAD DIVISION, JEHANABAD. 5. THE EXECUTIVE ENGINEER, PUBLIC HEALTH ENGINEERING DEPARTMENT, NAWADA DIVISION, NAWADA. --------------------------------------------------------------------------------------- RESPONDENTS For the petitioners :- Mr. Kripa Nand Jha, Advocate For the State :- A.A.G. 2. ----------- 2 8.4.2011 The petitioners challenge the order contained in Memo No. 970 dated 30.11.2007 and the follow up order dated 18.12.2007, Annexures 13 and 13/1 of the writ application by which the A.C.P. granted to the petitioners has been withdrawn and the petitioners have been asked to repay the excess payments made to them. Thus the petitioners challenge not only the order concerning repayment of the excess amount but also the order by which the A.C.P. has been withdrawn. The facts of the case are that the petitioner no. 1 was appointed on 2.6.1985 as 2 a daily wager. He was shifted in the office of the Public Health Engineering Department (hereinafter referred to as ‘P.H.E.D.) as a work charge employee. The petitioner no. 2 was appointed on 9.9.1987 on daily wages and was similarly shifted as a work charge employee on 11.1.1990. The petitioners’ services were regularized by the P.H.E.D. Suddenly the petitioners were terminated on 31.12.2001 vide memo no. 4191. The petitioners were firstly treated to be daily wage employees of the department for six months and later were shifted as work charge employees. By letter no. 3884 dated 28.6.2002 (Annexure-6) the Principal Secretary of the P.H.E.D. passed an order stating therein that the regularization of the petitioners is pending consideration of the State Government. In the mean time, the petitioners were permitted to join on the regular employee. The letter further states that payment of salary with respect to the period 1.4.2001 to 31.5.2002 would be considered after the State Government gave its approval for the petitioners’ appointment. By Annexure-8, the State Government approved the appointments of 3 the petitioners from 10.12.2002. The office order 122 dated 30.12.2002 specifically states that as far as t he seniority of the petitioners is concerned, it would be treated in accordance with order no. 78 issued vide memo no. 1063 dated 6.8.1988. In effect the petitioners were treated to be in continuous service for the purpose of their seniority. From the aforesaid facts stated aforesaid and on perusal of Annexures 13 and 13/1, it is clear that the petitioners were granted A.C.P. from the year 2000. At that time the petitioners were in service and, therefore, the A.C.P. granted to them cannot be held to be illegally granted. After the break in service of the petitioners for a total period of 12 months, 6 months of which, they have been treated to be as work charge employees, have been duly recognized and regularized by the State Government. Merely stating that the order of regularization will take effect from 10.12.2002 does not take away the effect of the decision of the State Government to treat the petitioners to be in service of the P.H.E.D. since the date they were appointed. In the order contained in 4 Annexure-8 by which the petitioners have been treated to be regular employees, thereby tacitly, the department recognized the service period of the petitioners from the date of their appointment and as such it cannot be said that once the petitioners are treated to be in regular service from the date on which they were appointed, they would not be entitled to grant of A.C.P. Therefore, in my opinion, the order contained in Annexures 13 and 13/1 has to be quashed to the extent that the A.C.P. of the petitioners would not be recovered. The Principal Secretary of the P.H.E.D. would be required to pass a fresh order approving the A.C.P. of the petitioners since they have been treated to be in regular service from the date on which they were appointed as Drivers in the P.H.E.D. The said order should be passed within a period of four months by respondent no. 1 on receipt/production of a copy of this order. This writ application is thus, allowed to the extent indicated aforesaid. Sanjay ( Sheema Ali Khan, J.)