IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8322 of 2007 DEONANDAN BIRAJI Versus THE STATE OF BIHAR & ORS ----------- 3. 31.07.2008 I.A. No. 7073 of 2007 has been filed challenging the order dated 29.11.2007 issued during the pendency of the writ application ordering recovery of Rs. 1,05,800/- from the petitioner. Having heard learned counsels for the parties, the interlocutory application is allowed. The challenge to the order dated 29.11.2007 shall form part of the challenge in the original writ application. The petitioner was initially appointed as Compilation Clerk on 12.2.1968 in the work charge establishment in the pay scale of Rs. 220-315/-.With effect from 1.1.1971 based on the third pay revision committee report, his pay scale was revised. A policy decision of the State Government dated 20.8.1981 to regularize the services of those in the work charge establishment and had completed five years as such on 1.4.1977, led to the induction of the petitioner into the regular establishment. By a policy decision dated 24.5.1980 the posts of Upper Division Clerk and Lower Division Clerk were merged to form a unified cadre of Clerks. The petitioner was appointed as Lower Division Clerk on 12.9.1981 with effect from 1.4.1977, after merger of the grades. Counting his services for the period of work charge establishment also, the petitioner was then granted time bound promotion on 23.3.1987. - 2 - The petitioner was to superannuate on 30.6.2007. On 26.3.2007an order came to be issued re-fixing pay scale of the petitioner with effect from 1.1.1996. The premise was that in accordance with the circulars of the Finance Department, the induction into regular establishment could only be against a vacant sanctioned post and, therefore, the pay scale of the petitioner had to be in accordance with that in the work charge establishment. It is not in controversy that this order dated 26.3.2007 came to be issued in violation of the principles of natural justice operating to the prejudice of the petitioner retrospectively from 1.1.1996. This was notwithstanding the order of this Court on 21.4.2006 in CWJC No. 247 of 2002. This Court considers it proper to quote the relevant extract of the judgment hereinafter. “………The moment the petitioner was regularized in the regular establishment of the State a post of compilation clerk was sanctioned and in the said post the petitioner was accommodated. This has been clarified by the Government by its policy decision taken on 20 October, 1984. It has been provided in the said policy that upon regularization of an employee in the regular establishment the post held by the said employee in the work charge establishment would stand abolished and the said post shall be deemed to have been created in the regular establishment and accordingly, budget allocation shall be appropriately adjusted………….” Notwithstanding the aforesaid judgment of this Court, the counter affidavit just to the contrary states in the relevant extract at - 3 - paragraph 5 as follows : “………provision made vide F.D. Letter No. 831 dated 30.1.1973 covers only the sanctioned posts of regular establishment and not for the post created in work charge establishment. The petitioner joined this Government service in work charge establishment as compilation clerk. Hence, his post (compilation clerk in work charge establishment) held by him was not fit to be treated as Lower Division Clerk….” A similar view as in CWJC No. 247 of 2002 has been taken in CWJC No. 13629 of 2004 appended as Annexure-14 (wrongly numbered) to the rejoinder of the petitioner to the counter of the Respondents. Notwithstanding the orders of this Court appended to the writ petition, the deponent of the counter affidavit has stated just to the contrary without even bothering to go through the papers of the case. In normal circumstances the order being in violation of the principles of natural justice, the matter should have been remanded after setting aside the impugned order, but considering that the petitioner has already superannuated, he is sought to be prejudiced with effect from 1.1.1996 by recovering from his pensionary benefits and the law has already been laid down by this Court, no useful purpose shall be served by remanding the present matter. In the result, Annexure-1 dated 26.3.2007 and Annexure-14 dated 29.11.2007 are set aside. If the actual recovery has been affected from the petitioner, the amount in question must be refunded to him - 4 - within a maximum period of two months from the date of receipt and/or production of a copy of this order. The writ application stands allowed. AKS/ (Navin Sinha, J.)